Parliament should free judiciary from capture by executive
Dithapelo Keorapetse | Friday March 10, 2017 15:43
The President has refused to appoint at least four people to the bench notwithstanding recommendation by the Judicial Service Commission (JSC). Internal wars in the judiciary have reached the press with allegations and threats of witchcraft. Almost the entire bench of the Court of Appeal (CoA) has been found to have been unconstitutionally and unlawfully appointed. As it is now, the CoA is not hearing cases. The sooner Batswana realise that the judicature has been captured by the President of the republic and the executive the better.
Twelve judges have signed the petition against the leadership of the Chief Justice, but only four have been suspended for undermining his authority. Why? Why this selective justice? The four judges have been reported to the police for receiving overpayments in terms of housing allowances whilst residing in government houses. It is unclear how the Registrar and Master of the High Court, as an accounting officer, paid this money to these judges in the first place.
More worrying is his failure to do what is normally done in government in respect of overpayments, by just simply agreeing with the affected judges on a payment plan to recover the money. Many senior officials, it is reported, have received overpayments and have not been reported to the police on accusations of defrauding the government. Ministers, Members of Parliament, Judges of the Industrial Court, High Court and CoA and other civil servants are said to have at some point been overpaid, in terms of receiving money not due to them. This is simply an administrative lapse at the ministry of finance. It is solved through payment arrangements. It has never been called fraud or theft. If it is a serious crime, then why single out only four people? The simple answer is that there are political wars being fought at the judiciary and anything is used in these fights.
The principle of the independence of the judiciary seeks to ensure the freedom of judges to administer justice impartially, without any fear or favour. This freedom of judges has a close relationship with judicial appointments because the appointment system has a direct bearing on the impartiality, integrity and independence of judges.
The composition of the JSC is a clear sign that the executive dominates the appointment of judges. The current control of the executive in judicial appointments is inconsistent with judicial independence and it is in contrast with the doctrine of separation of powers. The appointment of Justices is highly secretive and in particular the President, enjoys the monopoly of the appointment of justices. The standard of judicial independence requires that the power of appointment of judges should not be dominated by the executive. This is because, if the executive enjoys an exclusive privilege in selecting judges, a risk always exists of misuse of the power of appointment.
In the view of trade unions and other litigants as well as observers, the President has misused his power of appointment by appointing judges who would be biased in favor of the executive. Some lawyers complain about the competence of some judges and question how and why they have been called to the bench. Judges who obtain their position as a result of executive discretion or favour are compelled to serve the interests of their appointing authority in a manner which undermines judicial independence.
Justice Abednego Tafa has ruled that justices of the CoA have not been lawfully appointed; that their contracts shouldn’t have been renewed and that it was wrong for parliament to have given the power to determine the CoA judges number to the President. The learned Judge dealt with the issue of independence of the judiciary adequately. As said above, public confidence in the judicature has diminished. Public confidence in the judiciary is essential for the maintenance of judicial independence and an important requirement of sustaining public confidence in the judiciary is the openness and or transparency in appointing judges. How are the CoA judges appointed? Have the positions been advertised and where? What are the required qualifications? Are they headhunted and by who? Why is the head hunter or the JSC in almost all the time meeting old white males as suitable candidates? Why is the country with CoA like apartheid South Africa with almost all judges white males? Are there no native Batswana who qualify to serve as CoA judges? Should Batswana, majority of which are black, have confidence in a white, old male CoA bench.
The attempt by the Minister responsible for justice to amend the CoA Act is an insult to the rule of law and independence of the courts. Parliament has no power to cancel a high court judgment by legislating that that which has been held to be unconstitutional is now constitutional and has always been unconstitutional. The attempt to backdate the law to 1980 is an attempt to quash Tafa’s judgment. The courts have pronounced on the matter and parliament cannot trash Tafa’s judgment in a manner that the minister seeks to do. Why would the minister want Parliament to increase the age of retirement of judges of CoA to 80? Why is he not subjecting this to a referendum as it was the case in 2001 when age was increased from 65 to 70? Recently, there was CoA judgment in which the court held that workers could be dismissed without being given reasons. Parliament never rushed to rectify this by amending the relevant statutes. Today parliament is rushing to protect the jobs of five white old male foreigners. Why?
Parliament must throw out this Bill. What must be of priority to Parliament now is an overhaul of the constitution. Establishing an improved system of appointing judges is a major piece of unfinished constitutional business in this country. Botswana needs to benchmark with other liberal democracies such as South Africa and copy best practices of appointing judges to maintain integrity and independence of the judiciary as well as inspire public confidence in the courts.