Chief Justice (CJ) Terrence Rannowane has come under fire for ‘engaging in politics’.
This was after he said whilst the unsuccessful petitioners in the 2019 elections might remain aggrieved, there can no doubt that the Judiciary in Botswana has carried out its mandate of upholding the rule of law without fear or ill will. Delivering his speech during the occasion of the Opening of the Legal Year this week, Rannowane said: “In so doing the Judiciary ensured that peace and tranquillity prevailed and that the democratic process of ushering in new leaders was facilitated”.
Several attorneys and the Umbrella for Democratic Change (UDC) accused the CJ of assuming the role of the Independent Electoral Commission (IEC) by declaring that the elections were free and fair.
A senior attorney who spoke anonymously to Mmegi said Rannowane’s comments were most unfortunate and spoilt an occasion that was intended to reassure the public that the rule of law was alive and well in the country.
“I don’t think the Chief Justice should ever assume the role of spokesperson of the IEC and take it upon himself to assure the nation that the latter credibly discharged its mandate, particularly when there is still litigation before the Courts in respect of which misgivings have been expressed about how the panels hearing the matters were constituted,” the attorney said.
Another attorney said regarding the elections, Rannowane should have just stated that they prioritised the petitions which are part of elections processes and ensured that as the Judiciary they were dealt with expeditiously in terms of the law to ensure that all parties exercise their rights as provided for and stopped there.
There was no need for him to make declarations on the fairness or otherwise of the election as if he abhors filing of petitions which were not even dismissed on their merits. To date we still do not know if our government was elected by the people.”
Yet another legal practitioner said the Judiciary must be like a church and not an exclusive club of the few. It must accommodate all and not perpetuate injustice by hiding behind technical rules.
“What we have witnessed with the petitions is that the courts were not interested in knowing the truth. In the process they have compromised their own standing and stained the Judiciary,” the legal practitioner said.
He asserted that the elections petitions outcomes were perhaps unsurprising. “The most junior of Judges were empaneled to preside over these important cases and pre-eminent jurists such as Justices Lot Moroka, Abednego Tafa, Modiri Letsididi, Tshepo Motswagole and Michael Mothobi were by-passed.
Could this have been done to ensure a pre-determined fate? While we will never know, what is clear is that the Judiciary has lost its moral standing and has become an extension of the executive. It has become malleable to political interests and its independence is under challenges.”
Meanwhile the UDC also joined the fray saying the Chief Justice’s statement with
“The CJ could at least pretend that he has an open mind with respect to complaints brought by the UDC, particularly that there are still some petitions lying before the High Court. As the UDC we strongly respect the independence of the Judiciary as a forum for adjudication,” the UDC head of communications Moeti Mohwasa said.
He added that they acknowledged that there will always be disagreements on proper interpretation and application of the law.
“There is nothing untoward about people being emotional about the decisions of the Courts and having robust debate ensue as a consequence. It being a public institution, it should not be expected to be exempt from public scrutiny and criticism.”
He added: “What is however worrying is the inability of the Justice system to appreciate how far it can go beyond the courtroom. This statement is an entrance into a forbidden terrain by the Judiciary. It drags the Judiciary into the political space, a turf that will damage its reputation and raise questions about its impartiality. When a court intrudes or bursts into this space, it loses all the respect that go with it. It opens itself to a level of criticism that it will not be able to handle”.
He explained that the UDC expected the Courts to play a major role in defending democracy, fairness and justice. It should protect the voice of the people and not be constrained by any unjust laws, if they exist. Such unjust laws if ever they existed, should be expunged.
“We do not believe that there will be justice if the Court of Appeal cannot review decisions of lower courts. Giving lower courts absolute powers on such matters will have them run amok, knowing that their decisions will not be subjected to review.”
Otherwise those in power will always prevail and the voters will ultimately lose confidence in the both the electoral process and the justice system. “We still maintain that what put Botswana Democratic Party (BDP) in power is not the voice of the people but the works of the unholy trinity (BDP, IEC and Directorate of Intelligence and Security Services).”
Last week the Court of Appeal (CoA) dismissed with costs UDC 14 election petitions citing lack of jurisdiction. The petitions came from parliamentary candidates including that of UDC leader, Duma Boko.
The CoA ruling therefore cemented President Mokgweetsi Masisi’s rule until 2024 when the next general elections will be held.
Botswana held its general election on October 23, 2019 with the ruling BDP winning by a majority of 38 seats against UDC’s 15. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”. The BDP has ruled Botswana since independence from Britain in 1966.