The High Court is not in a mess: response

| Wednesday January 6, 2010 00:00

 Whereas constructive criticism of Public Institutions is essential for democratic governance, it is unacceptable for any writer to distort the image of an institution and worse still, use language that is insulting and demeaning its members in such a wholesale fashion.Although the Administration of Justice cannot respond to each and every false allegation made in respect of it or its officers, in view of the grave nature of the allegations in the above-mentioned article, it calls for the record to be set straight.

I wish to record as follows:

*The Judges of the High Court are, in line with their Oaths, of office independent and impartial and in doing their work they are not under the influence of any authority. For that reason the High Court of Botswana and its Judges are held in high regard here at home, regionally and beyond. 

*The headline, however, bears no relation to the report below it.  The report concerns the appointment of Judges, their independence, and the author's own views on two recent High Court judgments, in which he would have preferred a different outcome.

*The Judicial Service Commission, a Constitutional body which has among its members the highest legal officers in the land is contemptuously described as 'a collection of puppets, stooges and pawns who suck up to the President' and as a 'phony and powerless club of elitists.'  The author also appears unaware that the Judicial Service Commission contains members other than those he mentions, including a representative of the Law Society, and that none of the members of the Judicial Service Commission and the bench were appointed by the current President.

*The procedure for appointing Judges is described as 'flawed' and allowing the appointment of 'sissies and puppets' to the High Court.  The article fails to point out that the system of recommendation by the Judicial Service Commission and appointment by the Head of State is not unique to Botswana, but applies to many democracies.  The same authority condemned by the correspondent (and not the current President) appointed both the Judges extolled by the author and those he disparages.

*The case of Tibone v The Sunday Standard is currently pending before the Court of Appeal.  In the report the High Court judgment is described as 'bad law', and 'garbage', and very strong language is used concerning the presiding Judge.  This is conduct prohibited by section 123(1)(d) of the Penal Code and is unacceptable.

*The case of Motswaledi/Khama was unanimously decided on the law by three senior Judges.  The Mmegi correspondent is guilty in this regard of seriously misleading the public in not mentioning that the decision in the case was unanimously endorsed by a full bench of the Court of Appeal. Further:

(a) There was no application made for the recusal of Judge Kirby, as alleged.

(b) There was no 'designed eradication' of Judge Dingake, who would, the author speculates, have decided the case differently.  The Chief Justice chose to appoint a panel of three Judges to hear the case in the proper exercise of his discretion as Head of the Court and as empowered by the High Court Act. A Judge decides cases on the basis of facts and law. It is wrong and a great disservice to the integrity of Judge Dingake to suggest that he would decide any case in any particular manner before hearing evidence and submissions of law.

(c) Mr Lekgowe's statement that 'It is pure and simple - the Executive interfered' is scandalous and false.  It impugns the whole basis of judicial independence and is disrespectful of the presiding Judges.

*Finally while newspapers have a right to criticise the court, their criticisms must be fair and reasonable and must not be false and made with the motive or intention of bringing the courts into disrepute.

*It is unfortunate that Mmegi has chosen to publish this example of agenda based and improperly researched journalism.  It is also a matter of regret that the freedom of the press, which the Judiciary holds dear, has been abused to undermine the very institution which acts as its guardian.