The judiciary after the storm

Kgosietsile Ngakaagae | Friday August 17, 2018 12:42

The same period was marred by mutiny in judicial ranks. Judges revolted against the supposed authority of the Chief Justice. The result was a lengthy standoff as ugly as the spectacle itself. When the former President left office, the acrimony appeared to have in part, subsided.

The mutinous judges had been beaten into line and lay prostate at the feet of a triumphant Chief Justice in terminal days of his judicial career. Conversely, the departing President left with a bloody nose, having suffered defeat at the hands of a territorial Law Society jealous of judicial independence.

Having lost the bid for Lordship over the Judicial Service Commission, the all important constitutional entity was immediately match-fixed. It was embellished with a further deployee drawn directly from the corridors of executive power. These occurrences confirmed one thing with absolute certainty; the nation was going through a war for the heart and soul of the judiciary. A war which to some lawyers, had long been won by the executive and which to others, was still raging without end. Gagged by customs, ethics and self-imposed limitations, some members of the judiciary did put up a fight for its independence.

On few occasions, they gave judgements that were by all accounts mutinous.The executive lost the Motumise case, an emphatic reminder that the idea of an absolute or semi-monarchy was anathema to a constitutional state. The judgement conveyed hope that a supposedly comatose judiciary, powerless against power, still reserved a dying kick.

The period 2008 to 2018 could well be called “The Dark Age” of Botswana’s justice system. Never in our nation’s history had the judiciary been so besieged by political influence and executive expectations.

Never had it suffered so much political violence and open internal strife. And never had it appeared so vulnerable. I graduated from law school at the very beginning of the new millennium. The bench was respectable. Sadly, it was staffed mostly by men who did not carry the same passport as I did.

Their reputations were solid and were respected widely by the bar. It was great to practice law then. It was not all about earning a living. As a lawyer, you did not have to worry about anything other than the law and the facts. You never envisaged that during the discharge of your professional labours, some executive considerations could creep in unnoticed and affect the trajectory of your client’s fortunes. Lawyers thrive in such an environment. Jurisprudence thrives in such an environment. Democracy thrives in such an environment where the courts are the guarantors of justice and, “the great levellers of all human equality”.

Yet, we saw the temple of justice crumble one pillar at a time under the weight of executive power. Whilst it is correct to say that efforts of some gallant sections of the citizenry slowed down the temple’s absolute demise, it must be said that it was virtually saved by the clock. When the clock ticked, Thor’s hammer was still at work upon the pillars.

There was an air of resignation in some sections of the legal fraternity. I was one of them.  There was a pervasive feeling that the executive held a controlling stake in the judicial enterprise. Many lawyers filed their cases in Francistown running away from the supposed corruption of the Gaborone and Lobatse benches, where a good number of lawyers spoke of a match-fixed bench and a totally mortgaged Court of Appeal.

True, these were perceptions, but such were not altogether unfounded. A predatory executive was at work. Even then, the judiciary has the reputational fragility of a church. Judges too. Perceptions are anything and everything. A corrupt lawyer may be rehabilitated and admitted to the bar. A corrupt judge must go away forever.

So much has been happening since April 1, 2018. Not much on the judicial front, though. The Khama edifice still stands. The Judicial Service Commission has not been reformed. The Court of Appeal, whose reputation has drastically dwindled, needs a makeover here and there.

Two regimes died at nearly the same time; The Dibotelo and Khama regimes. Both were notable, not for any growth in jurisprudence, but for fast-paced drama where the power of the law collided with powerful African reptilian and meteorological sciences an eroded public confidence in the judiciary.

The controversial legacy of the Khama years remains. The monuments stand tall and the current President still functions with what is relatively a Khama government. 

But it is not of the government in general that I speak. The judiciary is capable of self-correction and shedding the image, warranted or unwarranted, of being Khama stooges. In this question, I include very pointedly the Industrial Court, perceptibly, the most compromised and mortgaged of all outfits ever cloaked with judicial pretence.

Do their worships and lordships feel the breeze. It is time for the judiciary to rebuild its battered image and to regain public confidence. The storm is over. At least, we think so.