Judiciary at the altar of power

Mmegi Editor | Tuesday January 17, 2017 11:50

Kirby, in his speech, mentioned that the court is seized with some complex civil cases. One of these complex cases he talked about include the appeal dealing with the suspension of the four High Court judges where the Law Society of Botswana (LSB) wants to be appointed ‘a friend of the court’. There is also the Omphemetse Motumise appeal in which President Ian Khama refused to endorse the appointment of the veteran attorney to the bench.  There is another involving the LSB in which they lost a joinder application at the High Court.

These are important constitutional matters that the highest court in the land is supposed to resolve diligently.  Then came the opening of the CoA session speech, which treads on the fringes of recklessness.

The Judge President’s remarks, unprovoked as they were, have sent a chill down the spine of the nation.  It is not often, if not taboo, for justices to engage the public through the press, even do so in a selective manner in respect to some of the issues in which the court is seized with.

In the most revealing way Kirby said: “This is notwithstanding the fact that in Botswana, as in virtually every other country in the world, it is the Legislature and the Executive – the powers that be – that in the final analysis legislate for the selection of judges. And because of this they have the power to appoint most members of the bodies that make such recommendations or choices”.

At the centre is the case of appointment of the judges, a matter that Kirby’s brethren will have to determine.

Whereas it is correct that as judges they take oath to uphold the Constitution and “the laws and usage of Botswana”, it is only correct to the extent that such laws and usages of Botswana do not offend the Constitution. It is not merely given that since their oath of office enjoins them to do so that they must regardless. These selective engagements by the Judge President are worrying to say the least.

Kirby, in a manner suggestive of containing the court as regards the appointment of judges and many other important cases, suggests that ground-breaking judgments should be a taboo. This suggests a conservative view. Ground-breaking judgments seek to expand and develop the jurisprudence as opposed to stagnating it or being a cause of unfamiliarity and instability as suggested by the judge.

Kirby appropriates exclusively to himself and the Court of Appeal, the role to be a stabilising factor. How and where he gets the notion that our society is undergoing instability is not said nor is it apparent from his speech. Or better still, why he does not think the High Court is equally capable of that role, nor tell us what disqualifies it.

Today’s thought

“Our responsibility, whatever our personal views may be, is to respect and interpret the laws passed by the Government of the day, and to ensure that these do not stray beyond the boundaries set by the Constitution.” - Judge President 

-Ian Kirby