The Judiciary functions effectively when it can protect its integrity and promotes the rule of law without fear of favour.
This critical arm of governance does not exist in isolation. It is shaped by its interaction with the other arms of government.
The separation of powers, and the independence of the Judiciary that is required thereby, is indispensable for a functioning democratic state that can lay claim to respecting the rule of law.
In the past, the Botswana Judiciary was highly respected, independent and brave to take strong stand against a government invading on public space.
In fact, the Judiciary has been an integral component of the country’s phenomenal political growth and economic trajectory. It was a path long caved in the vision of the country’s leadership. This earned Botswana enormous accolades and the country made significant strides. Botswana became the epitome of a developing country and a premium destination for direct foreign investment. It had all the necessary ingredients; a developing country with full potential; a multi-party democracy with universal suffrage; an independent and respected judiciary and the rule of law.
Sadly, these values are slowly fading, if not completely being depleted.
There are strong indications that the independence of the Judiciary has been severely compromised over the past three years.
The events within the judiciary in the last four weeks or so is an eyesore to the hitherto leadership of this nation and its people. It will be foolhardy to say that the signs were not there.
In the early 2000s when the Executive was displeased with the private media and banned advertising, it was the courts that reminded the government of the vital role of the media in the lifeblood of democracy.
But then the Executive started toying with Judges between executive and judicial functions. Some Judges negotiated for themselves benefits, which were otherwise not due to others. Thus there was differential treatment of Judges depending on whom the Judge was and how well they have negotiated a better deal with the Executive. Some litigated over this and others left the bench despondent.
In the mid-2000s the Executive started cherry picking who could ascend to the bench against constitutional provisions and imperatives. On justification, the President says he makes appointments on socio political considerations. There is a matter pending on this point before the courts and in respect of the constitution of the panel to hear this matter the Chief Justice as the chairman of the Judicial Service Commission (a party in the litigation), Maruping Dibotelo says he is the one who constituted the panel.
We now see a situation where the Executive has unleashed its full wrath on the Judiciary by suspending Judges for voicing a concern with the manner in which the CJ is running the Administration of Justice. Some amnesty has been extended to Judges who were part of those calling for the CJ’s impeachment in the course of which they ‘apologised unapologetically’ and pledged their allegiance to President Ian Khama and Dibotelo.
“The Judiciary must be strengthened and released from political interference.”
– Aung San Suu Kyi