Justice Tafa�s groundbreaking decision; Is it worth celebrating in light of an executive that overpowers the legislature?

Owen Nsala | Wednesday February 22, 2017 18:26

Judge President Ian Kirby began the year by introducing us on the role of the Court of Appeal (CoA) and admonished those who dared him for labelling some Judges as executive-minded.

The chairperson of the Law Society responded in similar tone and castigated the appointment of Judges to the CoA. The icing on the cake was delivered by Justice Abednego Tafa who temporarily closed the CoA.  The judgement by Justice Tafa has hallmarks of a dramatic departure from the norm, or is a groundbreaking interpretation as Justice Kirby put it.

 It was an exception rather  than a rule, and I desire to see whether in the prevailing circumstances the judgement will have the effects it hopes to achieve given the stance we have regards our separation of powers.  Justice Tafa found that section 4 of the CoA Act, which purported to give the President the powers to appoint at will members of the appeals bench, was in violation of the Constitution which on his reading, gave Parliament the powers to prescribe the number of Justices to be appointed.

The judgement effectively stripped the Executive of the power to appoint and rightfully so, summoned that Parliament must be the one tasked with that responsibility.  It brought to life the notion of separation of powers. One will recall that at the opening of the January session of the CoA, Justice Kirby said that in Botswana there is no real separation of powers between the Executive and the Legislature.

He tried to water down the statement by saying those were his personal views. The truth however is that those words have found way into our laws and are no longer his views, but form part of judicial precedent. He has codified the law in that direction. Justice Kirby has before found that the separation of powers as between the Executive and the Legislature is loose and Justice Tafa resonated with his reasoning in the Appeal Judges’ case.

Constitutionally speaking, the framers of our Constitution envisaged a separation of powers between the Executive and the Legislature. However, our Parliamentarians fell to the greed trap and allowed for the death of the Legislature and gave life to the Executive.

The Legislature has lost its bite as Parliament is dominated by members of Cabinet who overpower the Legislature. The death of a robust and effective backbench, in numbers and logical content has not helped us. Those few remaining on the backbench have their eyes firmly set on ministerial posts, and vacancies have been created to enlarge the Executive.

It was never by design that the overlap between the executive and the legislature was to thwart the separation of powers of the two arms. I say so because out of 57 elected Parliamentarians and the four specially elected (before the amendment that necessitated an increase), the Constitution dictated for not more than six offices for Ministers and a similar prescription for assistant Ministers.

Effectively, the framers of the Constitution envisaged a situation where a majority of the Parliamentarians would sit on the national assembly and few on the Cabinet. That is not the case and maybe, soon, that point will find its way to court and we would have to determine the Constitutionality of an overweight Cabinet to the detriment of the backbench.

A strong Cabinet is highly likely to side with the Executive or the President on account that the President is the appointing authority to Cabinet.

A strong Cabinet therefore renders Parliament weak and the Executive powerful. On that account then, what effect would the judgement have? I maintain that all that will change will be the wording of the statutory document, but in a practical sense the President wields power as he is in a position to dictate terms to Parliament through Cabinet. Any mischief that was meant to be cured by Justice Tafa would simply remain an issue of academic exercise and the intended practicality remaining at the mercy of the Executive.

Whereas I have my misgivings on whether Justice Tafa’s judgement is what it is and will be given life to what it is supposed to be, we must commend his inclination towards independence of the Judiciary.

It is a progressive judgement which we hope, should there be an appeal, the CoA will treat it as a mature judgement and one that has a stabilising effect on society. Further, that the CoA will regard it as a fair and predictable decision with which society can live with in the future. We hope that the CoA will not find that the High Court has strayed beyond the boundaries as set by the Constitution.

I hope that it will pass the test as set by Justice Kirby as to the role of the CoA in interpreting laws. As regards Parliament, I hope a radical policy decision will be taken to allow for transparency in the appointment of Judges. It is time that public hearings are convened in the appointment of our Judges.