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Theorising about Judgeship

In the news: The High Court has been engaged in the election petitions recently
My occasional foray into academia, whilst at the same time deeply embedded in the vocation of judgeship, gives me some constrained license to theorise about judgeship.

I have always recognised the synergy and symbiotic relationship between scholarship and judicial craft. The wheels of justice require scholarship to remain oiled at all times and fit for purpose. I also firmly believe that civic education pertaining to the work judges do; on the independence of the judiciary and the rule of law is important in ensuring that law is rescued from the monopolistic clutches of lawyers and elites, and is capable of being understood or owned by the people, whom it is intended to serve.

I was reminded of this imperative around the just ended festive season, when I was at home, and had the pleasure to listen to members of the public, at various public meeting places, critique lawyers submissions in court and the conclusions the judges reached with respect to various matters serving before them. Given that all these involved elections and election petitions, the debates were unsurprisingly quite animated. The judges and the lawyers were not spared. It would seem that on matters of national importance, the great current that often hit the general body politics does not spare judges either.

From the debates I listened to, it seems the public acknowledges the truth that he who has the absolute authority to interpret the law, is truly, the Law – giver, to all intents and purposes and not the authority which enacted the law. Being deeply embedded in judicial craft I can confirm that few public officials have the power and influence of a presiding judge. The process of how judges reach their decisions, and how they may not agree with each other, has baffled and intrigued legal scholars, lawyers and members of the public for many centuries. It is a function of many complicated and interlocking factors. At the end of the day, dissent also confirms that the law is fluid and far from a science.

It is good for members of the public, the ones that have delegated judicial authority to judges, to take active interest in how the power they delegated is exercised. They have every right to seek to understand how judges take decisions that affect them.  We, the judges, are not sacred cows. We are liable to be criticised, so long as such criticism is done in good faith, it is sincere, well informed and respectful.

In this piece I offer my brief thoughts on three matters that cropped up most during the debates alluded to above, namely recusal, stigmatisation of judges by social media, and the independence of the judiciary. The thoughts are intended to promote civic education on the business of judges and to enhance better understanding of the discipline of law and the role of judges.

One of the issues that dominated the debates related to the question of when judges should recuse themselves from presiding in a matter. A fair trial is essential to any civilised system of justice based on the rule of law. Where there is sufficient ground to believe that a judge may not bring an impartial mind to the dispute before him then such a judge may recuse himself. The test is whether an informed reasonable bystander knowing the material facts may reasonably conclude that the judge may be biased. Such a determination is based on the facts and circumstances of each case.

Small nations such as Botswana where most people may know each other may have to develop jurisprudence that does not unnecessarily legitimise judges not doing their job and recusing themselves at every opportunity. A judge has a duty to preside and should not be chased away from the judgment seat based on frivolous grounds. Those who work in the law know that recusal is often used by those who fear that “the ship is sinking”, or is bound to sink under the heavy yoke of the facts and the law; to gain tactical advantage from having the judge recuse himself.

Another issue pertains to social media and falsehoods that it often spread that tend to undermine the impartiality of a judge or judges. The phenomenon of “fake news”, if allowed free reign, may undermine the confidence the public have on the judiciary. All of us should be careful not to promote untruths in the social media, as doing so may be injurious to the independence and impartiality of the judges.

Judges are trained to respect each other and to tolerate divergence of opinions. We believe in

both personal and institutional independence of the judge as an individual and the judiciary as an institution. We have a duty to be civil and collegial to each other. No judge can go out of his way to demean another.

False accusations on judges do not advance the rule of law; they undermine it. No judge can cast aspersions on another simply because he does not agree with the decision reached. As a nation we need to close ranks whenever the judiciary is unfairly maligned.

It is also too easy to unfairly malign judges because the conclusions they reached are disliked. This cannot be a justifiable ground to criticise the opinion of judges. Any criticism must be based on some ground that is at the very least arguable. And with respect to this category of criticism, judges must accept that they are not immune from criticism and must in fact encourage it. It is for this reason that I believe that academia has a very important role in offering informed and respectful criticism of our decisions by pointing out flaws in our reasoning.

The values of any civilised society that is based on the rule of law and democracy depends, to a large extent on the independence of the judiciary and public confidence in the judge’s ability to be independent and impartial. The judges too must strive, at all times, to be competent, impartial and independent. The judiciary is the last defence line of our liberty and human rights. It is a key source of our unity and stability as a nation. It is by definition non- partisan. If there be any institution in which we all agree needs our protection because it protects all of us impartially; let it be the judiciary.

It is important that at the end of the day, it must be said of the judges, by the community, (not the Executive and other vested interests) that they are competent, impartial and independent. Let it be said by the community that they are men and women of honour and integrity, that they are knowledgeable and humble; and that theirs is the mind that is open minded; a mind that concedes that they don’t know it all; that they can still learn much more, to perfect judicial craft. A judge’s role is to make a decision one way or the other. He or she, cannot say, “I cannot decide” or decide to toss a coin to resolve a matter before him, or like a traditional doctor, throw the bones to resolve a matter. When pronouncing a decision, the judge should be least bothered by whether it will receive applause or condemnation of the many, because such considerations are irrelevant.

My last comment would be on dissenting judgements. Although not frequent these days, dissenting judgements are common in many jurisdictions. They are to be encouraged rather than suppressed. In the USA soon after the adoption of the Constitution, Chief Justice Marshall attempted to suppress dissenting judgements with little success. He thought they promoted disunity. Forced judicial unanimity is undesirable and does not work.

The beauty of dissent lies in exploding the myth that in matters of law there is always one correct answer. Dissent may speak to the brilliance of the future and it opens up a healthy dialogue among judges, lawyers and legal scholars. Dissenting judgements allow judges to maintain their intellectual integrity; by enabling them not to subscribe to a judgement whose reasoning and conclusions they do not agree with.

In conclusion, it is arguable to posit that that law, not being a pure science, means that judges may credibly not agree with each other. And whilst in many cases judges have discretion in determining a lawsuit, such discretion is often constrained by precedent. Legal realists contend that diverse results of factually similar cases proves that judges do not base their decisions on law alone.

In my opinion all it means is that it is possible to arrive at different answers from factually similar cases. This does not suggest or imply that one of the opinions is necessarily incorrect; it may just imply that one of the jurists may not have reached the best possible result. Additionally, it could also be said that judges, like the cases they decide, are different and unique.

*Professor Key Dingake is a Judge of the National and Supreme Court and a former Botswana High Court Judge

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