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Is the judiciary a trustee of society?

The ongoing Umbrella for Democratic Change UDC elections petitions have invoked much interest in the general public and raised critical questions about our jurisprudence (See Lediretse Mokalake, Sunday Standard, January 19, 2020) especially its independence from the political executive class, where it derives its mandate.

The recent dismissal of UDC petitions merely on account of technical grounds, not based on substance, reminded people of the way Mme Pelonomi Venson-Motoi’s case was knocked out. This rejoinder is inspired by learned Justice Key Dingake’s piece, “Theorising about Judgeship” (Mmegi 17, January 2020).

To lay a foundation, we would like to refer the reader to one the foremost Marxist scholars and revolutionaries of our time, Rosa Luxemburg. In her masterpiece pamphlet “Reform or Revolution”, she writes a critical rebuttal against Eduard Bernstein revisionism and Karl Kautsky opportunism. In essence, she defends scientific socialism, materialism and the dialectical method ultimately reminding her protagonists that “theories are invented images of reality”. Reading through Justice Dingake’s article, one misses a theoretical peg which grounds the heading, “Theorising about Judgeship”. Equally missing is a theory to sustain the main discourse and argumentation he proffers.

What in fact, our respected Justice Scholar provides is an opinionated articulation of legal sacrosanct, basically writing a defence of the judiciary. This is of course expected, as he is part of the system. What is glaringly missing is discourse and contextual analysis of the judicial system and some of its processes. In theorising the judiciary it is necessary to relate and discuss its foundational philosophy, whose purpose and what purpose it serves. In this respect the role played by the state and its political apparatus is relevant.

It is common cause that though judges enjoy some semblance of autonomy, they remain constrained as they are ultimately beholden and owe their allegiance to the appointing authority. Judges are not elected. It is not unintentional that their ultimate appointee is the President. They are still under the stranglehold of the ruling class, who define a priori given conditions in which they operate. It is not the people who have written such laws, they rather reflect the class structure of our society. The ruling class defines the framework of law and they find their positions in it. It is the President, who appoints the Chief Justice and the Justices.

In Botswana, the memories of suspension of four Judges are still vivid and remind us just how the state powers can intimidate and compromise the judiciary forcing them to tow the executive line. Outside of our borders, in the land of the not-so-free, President Trump and a Senate majority can refuse to give testimony and prevent witnesses to testify. This is how liberal justice works under capitalism.

Is the judiciary neutral?

In his classic pamphlet the “State and the Revolution” written at the height of the 1917 October Revolution in Russia, the Bolshevik leader Vladimir Lenin outlines the origin, role and the raison d’etre of judiciary. It serves to defend the bourgeois state and the status quo of the ruling order. He explains the state as a composite force consisting of soldiers, the police, prisons and courts. Lenin emphasised that the state is not a neutral player acting to the benefit of all, but defends the interest of the ruling elite. The state’s power rests on two things: firstly,

the state through its organs has the monopoly of power. Soldiers are armed, police have weapons, and the courts have the power to send you to prison. Secondly, and more importantly, all these state organs are not elected and are therefore not truly representing the people in a democratic way. They can also not simply be recalled if they do not fulfil their mandate, sometimes they are corrupt or abuse their offices.

If we would assume, as we are told all the times, that the judiciary is the trustee of society, it is difficult to understand, why the killers of Kalafatis are not in prison, why Basarwa as the First People of Botswana are still suffering to reclaim their ancestral land and have access to water. How can it be that the working class lost their lifetime pension to the rich and powerful who are exempted from criminality after squandering pension funds and the petroleum fund? Why should a court decide to prevent a trial in relation to contested election results purely on technical grounds? How can justice be achieved if it is not granted the benefit of doubt and allow both sides are heard? Denial of justice is injustice. Here even our traditional Kgotla system in Botswana is better ___mmualebe.

In reality, the state is not neutral. This is not to say that judges misjudge all the time. We recently had a ground-breaking judgement on nullifying the legal discrimination of LGBT people in Botswana by Justice Leburu. But it is essential to understand that the judiciary reflects the balance of class forces in society. In a situation where a society undergoes progressive change instigated by mass action, naturally you will see many activist lawyers, progressive judges, better constitutions.

We have seen this during the anti-apartheid struggle in South-Africa that brought forward remarkable struggle lawyers, like George Bizos representing Nelson Mandela, Walter Sisulu et al. However, the constitution remains a mere piece of paper until people are given the opportunity to participate in its drafting and they fully own it – South Africa has one of the best constitutions in the world because it reflected the public aspirations from the freedom charter. If a society is regressing into stiff conservatism, the landscape will be shaped by a judiciary, which is concerned about not rocking the boat with its respective authorities. Therefore, if we want a better judiciary we need to change the socioeconomic conditions and the political landscape towards true democracy. That means, we should fight for extension of democracy to all spheres of society and our lives.

In the brief period of true democracy immediately after the Russian revolution, some legal structures ceased to have a purpose. People entered into personal relations consensually without interference by the state. If a couple wanted to separate, they simply split and lived their lives. Translated to today it would mean that a whole profession of highly paid divorce lawyers and judges presiding over their cases would become obsolete.

*Motsomi Ndala Marobela is with International Socialists Botswana

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