Access to justice still a problem - Justice Tebutt

ISAIAH MOREWAGAE
Staff Writer | Friday July 30, 2010 00:00

'For too many of our citizens, access to the judiciary is too distant, cumbersome, slow and expensive and if they do obtain judicial access, they may still feel their vulnerability and that they are socially discriminated against,' Justice Tebutt said.

Speaking at the annual judicial conference in Gaborone recently, he suggested that the problem could be remedied by making court systems more available to all citizens by increased provision of legal aid and improved use of court structures such as the small claims court, family court, and other relatively inexpensive forums.

'Ensuring that state bureaucracies are more friendly and helpful should also be an immediate educational exercise by the state,' he said.

Justice Tebbutt also stressed that the underlying feature of a true democracy is when the administrative application or the judicial adjudication of legal rules is consistent across the spectrum of society.

Adjudication of the rules should be made without taking into account the class, status or relative amount of power held by the parties. Of vital importance, the judge said, is that the rule of law should exclude all interference by the state in its application and operation. 'It does not cater for the possible oppression by those in power in a democracy of those who lack any such power,' he said. 'The rich in society occupy a position of privilege over the poor. Those in political office can make life very unpleasant for those who have no such access to power.' In its basic form, the rule of law requires that the law must be fairly applied by the relevant state institutions, including an independent judiciary.  Justice Tebutt emphasised that there should be a legal system that upholds the political rights and freedoms and guarantees a democratic constitution and the civil rights of the whole population as well as subject the state and its highest officials to legally established controls on the lawfulness of their acts.

'If these three elements - particularly that the state is subject to the law - are lacking, the rule of law will break down,' Justice Tebbutt said.