Monastery of judgeship
Correspondent | Friday January 26, 2018 16:39
I have been lucky to have such loving family, relatives and friends. My friend Eddie Mdluli last week crafted a piece in which he lionised me – coming very close to conferring me with judicial sainthood! Thank you Eddie. You are such a sweet soul. I am just anxious whether after my permanent recall from this world, if you are lucky to be around then, you will still write the same piece, or you will revise it to suggest that somewhere along the way I betrayed! The tragedy is that I will never know!!
I am particularly happy that amongst you today are my secondary school teachers, Methaetsile Leepile and Keineetse Keineetse who taught me English Literature, traversing such books as Macbeth by William Shakespeare and Cry the Beloved Country, by Allan Parton. One of them was fascinated by Lady Macbeth and we nick named him Lady Macbeth; Strangely, Keineetse Keineetse, a frequent visitor at our dormitories, we didn’t call him Absalom Khumalo or Reverend Msimangu, one of the characters, in Cry the Beloved Country but just, “Comrade”.
I was called to the bench at a fairly young age. I have been in the bench for over 15 years! This is far too long a period to serve in any public office. I need to create space for better brains to continue where I left. And there are many! My departure will not in anyway devalue the stature and role of the judiciary in this Republic. I am not indispensable.
The vocation of a judge was once described as something akin to priesthood. Even today the idea that judgeship is akin to priesthood subsists because of the belief that judges epitomise righteousness, fairness and justice. Acceptance of the calling is similar to going into monastery – a place of worship occupied by monks living under religious vows. Upon appointment, a judge must be prepared to work harder and longer hours to meet the ends of justice. The satisfaction a judge gets is serving the community according to law; remembering, always, that the ultimate objective of law is the welfare of the people. Only then can a judge earn the respect of the people.
When a judge enters the courtroom he is usually robed in black, occasionally in some other colour. The colour black is not without significance. It signifies neutrality. When a judge walks into the courtroom, the court attendants, irrespective of their status are required by tradition to stand, not necessarily in honour of the person of the judge, but his office, that symbolises justice. In the courtroom the judge occupies a unique role. He/she presides over any trial or dispute and all those that seek to persuade him/her one way or the other must stand to address him, with the constant tagline: “M Lord or My Lady”. Courtesy and tradition requires that when addressing judges, lawyers and/or litigants must stand unless excused on account of some compelling ground. But no judge should take the traditional tagline, My Lord as suggesting that judges are demi-Gods or sacred cows. We are not!
A judge’s role is to serve the community in the administration of justice. He/she must do so without fear, favour or ill-will. The values of any civilised society based on the rule of law and democracy depend to a greater extent on the faithful performance of judicial duty. These values include liberty, human dignity, peace, order and good governance. Today’s judge is required to give effect to the values of a pluralistic society that cherishes democracy, human rights, tolerance and diversity. These are the values that make a judge retire to bed every day with a sense of satisfaction that he/she is indeed at the service of the community.
In the course of his/her duties, in a country where the Constitution is supreme, the judge must only know and apply one morality, the morality of the Constitution, where every person is equal in the eyes of the law. No one, no constituency, no power block, traditional, religious or otherwise must stand above the Constitution.
A life at the bench is a rare honour and privilege. Some authorities that are religiously inclined have poignantly observed that judgeship is an attribute of God, an assertion not at all surprising given that judges have powers of life and death over their fellow human beings. Those with religious inclination remind us that even God who created the human being, does not sit in judgement over his deeds until their death; and only then does he determine their fate; whether they will be sent to heaven or death.
The judges’ primary responsibility is that which many of us would rather avoid: take decisions. Judges have the grave responsibility to sit in judgment over their fellow human beings in a lifetime. In jurisdictions that still have the death penalty, it is only the judges who can sentence those convicted of heinous crimes to death. In many constitutional democracies it is judges who may have the last word as who is the winner of the disputed elections or whether a president ought to be removed from office. Judges can turn paupers into billionaires and billionaires into paupers. Theirs is a grave responsibility that must be exercised with humility, deep reflection, wisdom and knowledge. Blessed are those on whom this assignment has been entrusted. Even more blessed are those who acquit themselves with honour and dignity.
The primary function of a judge is to dispense justice. It has always been a revered principle of liberty and freedom that judges are no respecters of persons but the law; and that they should always stand between the subject and any attempted encroachments on his liberty by the executive, ever vigilant to ensure that any governmental action is justified; what appears in the literature as the culture of justification.
The concept of justice has always been a permanent feature of human existence. In modern times the concept of justice is represented by the Roman goddess Justitia or Lady Justice. She is normally portrayed as a blindfolded woman with a sword in one hand and the scales of justice in the other. This is the symbol that has the pride of place atop the High Court in the CBD in Gaborone, Botswana, and can actually be seen in the letterheads or stationary of many courts across the globe. The symbolism portrays the idea that justice is blind, it knows no colour, status or creed, for no one is above the law. The clear and unequivocal message of the symbolism is that the evidence tendered in court must be weighed carefully and the issues determined dispassionately.
Our judges are called “the Honourable Mr/Ms Justice So and So”. They wear flowing, and often colourful robes that set them apart from the rest of the other people. This adds to the mystique of being a judge. The mystique is heightened by the manner in which the judges are addressed: “My Lord’, or “My Lady”. The mystique thickens further by the elevated bench upon which the judge sits and the wigs they wear. In some jurisdictions judges no longer wear wigs as an attempt to make the courts look normal and user friendly. In Botswana we haven’t even started the debate in that direction. Speaking for myself the time to discard the colonial robes has long passed.
The first quality of a judge is to be wise and knowledgeable. It was in the fourth century BC when Greek philosopher Socrates said that there are four qualities required of a judge- “to hear courteously, to answer wisely, to consider soberly and to decide impartially”. Everyday, judges are called upon to decide where the truth lies in a dispute. Invariably the judge is faced with two contradictory versions and he is not allowed to say at the end of the trial that he cannot make up his mind as to which version is true; or to throw a coin to determine where the truth lies. On occasions you get a sense that in truth, as a presiding judge, all you can do is to tell who of the litigants is telling less lies than the other. After all, we are not prophets but mere mortals.
Determining who of the witnesses who appear before the courts is telling the truth is not a function of eloquence or confidence as it often appears. My experience is that the most eloquent and confident may not be telling the truth. Judges don’t wield any magical lie detector. They use a number of tools and often instinct and common sense to say which version of the facts is most probable. They can get it wrong as they often do and they must always be alive to this possibility.
A judge must avoid giving expression or lending authority of his exalted office to undemocratic fundamental values. Judges must always be mindful of the possibility of abusing judicial power. It is not only the executive nor the legislature that are capable of abusing power, even the judiciary can do so. In general, the potential abuse of power by the executive and the legislature is kept in check by the judiciary. The question that is often asked is, who then should keep the judiciary within the boundaries of its constitutional mandate. This question has not always been satisfactorily answered.
In my mind at least, there is to date no effective constitutional mechanism to police the possibility of abuse of judicial power. It is therefore absolutely imperative for the judges to ensure that judicial power is exercised responsibly. Judges should always be conscious that they are not above the Constitution and should not exercise their power in a manner that has negative impact on constitutional democracy.
Judges should always be extremely careful in ensuring that they do not overreach and find themselves unjustifiable participants in political spaces. If this were to be so, the authority of the courts would be politicised and undermined. Once public confidence in the judiciary is eroded as a result of judges overreaching, the rule of law will ultimately suffer and the democratic project subverted.
Many people have often asked me about my prognosis of the Botswana judiciary as I leave. I have been quick to point out that we have been through a rough patch, but signs are that the judiciary is closing ranks and all shall be fine. In my mind the constitutional foundations of the rule of law and the independence of the judiciary are too strong for the judiciary to be permanently derailed from its core mandate to uphold the rule of law and enforce human rights.
Once again thank you for your attention. Subject to any other activities that may follow, these proceedings are now postponed sine die (without any= future date being fixed). I will return!!
KEY DINGAKE
*Justice Key Dingake is a former Judge of the High Court. He has been appointed to the Supreme and National Courts of Papua New Guinea