Murmurings of an Executive-minded Judiciary

Owen Nsala | Wednesday March 1, 2017 17:17

The story informs us that it is alleged that Khama met Justice Ian Kirby, Judge President of the CoA and Chief Justice  Maruping Dibotelo last Friday at the OP.

The article continues by stating that the two senior Judicial officers went to brief president Khama about the judicial crisis, which one would assume was borne of Justice Tafa’s judgement. My intuitive reaction was that such was way far off the mark. The two Justices cannot have a meeting to discuss the crisis more so that the case is still pending before the CoA. I refused to accept that the two Justices could imagine such a conversation with the President. I have high regard and respect for the two Justices and I shall give them the benefit of doubt and denounce the existence of such a conversation.

My thoughts however nag me and I continuously have to grasp with the “what if?” question. What if indeed the unconfirmed reports are true? Just what if? For that I shall address the reader from the “what if” perspective.

It would be an all-time low for our Judiciary to seek audience of the Executive in matters that are contentiously before courts. It would be a serious assault on the life-long principle of separation of powers.

The notion of an ‘’Executive-minded Judge’’ that has been introduced to the fora by Justice Kirby will not disappear anytime soon if such an allegation is true. Such a revelation would come back to haunt him as no doubt would then exist that indeed the top echelons  of our Judiciary is manned by those who are executive-minded. He would be guilty as charged and a hearing to affirm principles of natural justice would be a formality rather than a necessity.

Judges must be particularly careful not to even appear to be colluding with the Executive when they are likely to later have to adjudicate on challenges of action taken by the Executive. They must be careful not to do so because such conduct is inconsistent with judicial independence and the right to a fair trial; to justice being done and being seen to be done. Any such meetings would be highly inconsistent with the rule of law. It would be an abomination of the highest order, an atrocity without scale.

The relationship between the Executive and the Judiciary must not be consistent with that of bedfellows. A lovey-dovey courtship  between the two arms of Government is unhealthy for our democracy. A certain degree of tension between the Judiciary and the Executive must be an option to be fully exercised by the Judiciary. Such a noticeable tension, which I crave for, is healthy because from time to time the Judiciary are called upon to adjudicate under judicial review and constitutional procedures and in other ways on actions against the Executive.

Courts have a pivotal role to play and often shelter the vulnerable from abuse of power by venal, tardy, overwhelmed or heartless Government’s officials. Courts also help the Executive to account and protect our democracies in the name of the people. Just like the Executive and Legislature, a properly functioning Judiciary, absent from any gossip on collusion by the Executive, must therefore also be seen as representing the interest of the people rather than that of the State.

The Judiciary must not sit on the lap of the Executive. It must anticipate criticism from the Government as and when decisions go against the State. One must accept that it is not necessary to create a courtship between the Executive and the Judiciary to avoid the burning of hands. It is acceptable that there are not many people who completely welcome their activities being judged and particularly if they have failed. To that end, an appeasement policy by the Judiciary stands to hurt the institution.

We must take cue and lesson from Chief Justice Mogoeng Mogoeng of South Africa that the Judiciary must exercise a higher degree of arrogance regarding its role and distance from the Executive, at the same time anticipating stinging criticism from Government. He said: “The constitutional reality is that it is the responsibility that rests on the shoulders of the Judiciary to interpret the constitution and the law. That will never change, but it would be quite arrogant of the Judiciary to say nobody who is not a Judge should be heard to be questioning the manner in which we go about our business. By the way, it has never been our position. Our position has been it is the way you question that matters to us’’.

In the final analysis, I must state that Judges must steer away from the above-mooted controversies and shy away from making public pronouncements. As an overarching proposition, the Judiciary as an institution gains respect through its reserve. Judges should not wish for celebrity status and must avoid public statements and courting political controversies.