The Law Society of Botswana (LSB) has in the past questioned the process of appointing judges, pointing out that the process invites questions because it is lacking in openness and fairness. In fact, a certain senior lawyer who is a former chairperson of LSB went as far as to say the judiciary is packed with useless judges. The jurist went on to accuse judges of playing a major role in making the Constitution of Botswana a useless document. "These judges have killed the constitution of this country," he said.
Indeed, the majority of people who sit on the Judicial Services Commission (JSC) are political appointees. It does not take much imagination to see how these presidential appointees would feel obligated to please the appointing authority, namely, the President, in whom lies the power the final decision of whom to appoint. The need for reform being so clear, it has been suggested that the appointment of judges should be left to the legal fraternity because lawyers are well informed on what qualities a candidate should possess to be appointed a judge. This week, the tendency of Court of Appeal judges to concur in every judgment came under sharp relief once again. It is a matter of shame that this should be the case, for dissent is desirable, healthy and casts an alternative view upon matters. In the aftermath of this discreditable state of affairs, most attorneys are questioning the rationale of having a five-man panel that never writes judgments. But this is because Judge President Ian Kirby writes the majority of the judgments and the rest nod in agreement and append their signatures. Yet it is distinctly odd, indeed incongruous with reason, that the court of last resort should be a one-man show. One attorney commented on the social media that surely one can agree with somebody for totally different reasons altogether; Five legal brains agreeing on a matter as complex as the ESE cases! It can only happen in this country. We are persuaded to agree with Botswana Federation of Public Sector Unions (BOFEPUSU) that our judiciary is executive-minded and its findings are almost always in favour of the government. The mighty judges have demonstrated a capacity of undermining public confidence in the system.
