A follower of this column sent me an email some time ago asking if I would comment on the localisation of the Court of Appeal (CoA) bench. He wanted to know, precisely, what my views are on the issue. For a moment I wondered whether I should take the challenge.
You cannot tackle these kind of issues without earning yourself an enemy or two.
I was being invited to pass a verdict on the jobs of men I will in time be kneeling before praying before for justice. Imagine telling a man that your judicial system can do without him and then appearing before him pleading for your client’s life. But then, it’s a free country and my line of work is all about making friends and enemies so the challenge struck me as something of an occupational risk. So I have decided to accept the challenge. We talk about localisation in every employment sphere without inhibition. Why should the CoA be an exception?
Do we really need foreign CoA Judges? No, we don’t. We don’t need them. Since independence, our CoA has been dominated by foreign Judges. The first wave was a motley crew of West African and European jurists but that was justifiable. Our legal system was in its formative years and not many Batswana had been to law school let alone seen the inside of a classroom. Of recent, we have admitted other nationalities, going as far as the Caribbean. Their contribution to our jurisprudence cannot be measured in the number of judgements they churned out during their fleeting visits but in whether they in any way advanced the frontiers of our jurisprudence.
I guess we have developed a big enough pool of legal talent to render an expatriate dominated bench needless. Many Batswana judges have served at the High Court level and have the requisite experience to embark on the higher challenge. There is no discernible quality that the foreign judges are bringing to our jurisprudence which our own cannot give. Often, the judgments these men produce are very average and offer no real import quality. I cannot understand why we should continually import judges so they can spend most of their time concurring. Yes, once in a while we do get a dissenting and concurring judgement. But such occurrences are as rare as Haley’s comet. Batswana Judges are equally capable of signing above a dotted line and saying “I agree”. In fact they have done that many times before.
Look here, I do not say that these men have served no purpose. They do decide cases. I am simply saying that their time is up. Their jobs should be advertised to Batswana before they are exported. That’s called localisation and it’s a policy that government has been very passionate about. I am simply supporting the
The fourth came from the Industrial Court. Nearly all of them have served well. I have seen no substantial difference between their judgments and those of their expatriate brothers. In fact, I would venture to say that overall, they have been better.
High Court Judges take up CoA duties each session. By now, they should have gained the requisite experience necessary to take up permanent posts at that level. It is high time the CoA bench is localised. Tell me why we need the foreign component of the CoA, in particular what quality they bring to that bench which cannot be found in the current crop of High Court Judges. High Court Judges would acquit themselves better if they know that by so doing they commend themselves to be appointed to the CoA.
One can, of course, envisage a situation where occasionally, the issue is potentially divisive regard being to conflict of interest, demographic or political factors necessitating the engagement of a foreign Judge to bolster public confidence in the judicial outcome. I stand corrected but I think we have done that before and we have done it on an ad-hoc basis. In any case, such cases are few and far between and constitute an exception to the general rule. To say that we need juridical perspectives from other jurisdictions does not hold water. The practice of the law has always prided itself in its ability to consult with other jurisprudences within our constitutional and statutory limitations.
We do not need an American Judge to come to Botswana to give us an American perspective. We simply need to sufficiently resource the Judges with sufficient facilities and manpower for research. South African Constitutional Court Judges are equipped with trained research assistants who assist them in their functions.
The beauty of their evolving jurisprudence is not an accident. I have had the privilege of meeting and working with some of them, all lawyers in their own right. It may actually help for younger magistrates to do at least two years pre-magisterial training at the High Court and the CoA. We would have more punctual magistrates and fewer lawyers going to jail for daring to say, “I beg to differ, your worship”.
We need a permanent CoA to deal with the perennial inflow of cases from the High Court. The answer lies within our borders. We do not need foreign CoA Judges.