By now, the appointment of Tapologo Mercy Garekwe as Justice of the Court of Appeal is stale news. We congratulate her heartily. What, however, could be interesting and exciting news is tracking and trying to make sense of her meteoric rise.
The suspension was, however, subsequently lifted. Her story is one of rising from the ashes of suspension to being elevated to the top post. How come that against this backdrop of suspension that all of a sudden she has been found worthy and even preferred ahead of her seniors? Even Garekwe herself would be the first to admit that her elevation looks like some microwave engineered promotion, coming before its time. She is relatively new to the bench and it would not be totally wrong for one to think that she is still settling, learning the ropes and finding her feet. Indeed her appointment might have set tongues wagging for many years to come.
Under the prevailing circumstances where the doctrine of separation of powers remains blurred and suspect, one cannot resist the temptation to think that political expediency and the gender ticket must have been overriding considerations in her elevation. Was it affirmative action? What affirmative action? Yes, in a patriarchally dominated society such as ours where deserving women had been historically disadvantaged by accident of birth, affirmative action can be a good remedy to address disparities and undo injustices of the past. But then we are not living in an ancient Botswana.
This is modern day Botswana; where education has done a good job as a socially equalising agent placing women and men on the same pedestal. It would be a case of clutching at straws for the appointing authority to justify the place of affirmative action in this age. Women are qualified and capable of competing pound for pound for jobs on offer with their male counterparts. Any attempt to loot at women otherwise is ill-advised as it would be too patronising and condescending on them. Even if affirmative action was justified, the appointing authority should in the spirit of maintaining the integrity of the judicial system must always exercise great care to ensure that meritocracy is not sacrificed on the altar of the gender ticket.
It is therefore difficult to say Garekwe is the right candidate or not for the job because the system that picked her is shrouded in secrecy and has deprived her of an opportunity to compete in an open and transparent atmosphere. Doubts and questions will always be lingering over judicial picks. The system is not doing itself and Batswana any favour and justice by its continuous rejection of repeated calls for the adoption of a more open, transparent and accountable recruitment process. As things stand, insulating her appointment from political influence would be a hard and difficult ask. Clearly, her promotion is falling short of meeting the requirements and standards of the 2002 Bangalore Principles of Judicial Conduct.
The principles highlight cardinal values of independence, impartiality, integrity, equality and competence, among others. In 2010, the Judicial Integrity Group at its meeting in Lusaka, Zambia adopted measures for the effective implementation for the Bangalore Principles of Judicial Conduct. Article 10 states that it is the responsibility of the State to guarantee judicial independence. “The principle of judicial independence requires the state to provide guarantees through the Constitution or other means and that the judiciary shall be independent from the executive and the legislature and no powers shall be exercised as to interfere with the judicial process”.
Further on the question of appointment of judges, article 12.3 stipulates ''that in order to ensure transparency and accountability in the process, the appointments and selection criteria should be made accessible to the general public including candidates for high judicial office. All judicial vacancies should be advertised in such a way as to invite applications by or nominations of suitable candidates for appointment”. Clearly our system of judicial appointments is lacking in many respects. The ball is in our court to close Constitutional limitations which do not guarantee judicial independence. Politicians, given room and space, could fully exploit anything in the interests of self-preservation and political survival.
So, it is small wonder that judicial appointments in our jurisdiction have all the trappings and character of a suspicious political transaction. And the appointment in question and others that preceded it are no exceptions. Since taking charge of the affairs of the country, President Mokgweetsi Masisi has displayed a notorious distinction for maintaining a culture of sidelining and relegating into the background experience, meritocracy and seniority. The president set the tone with the appointment of Justice Terence Rannowane as the Chief Justice of the Republic ahead of his seniors in the judicial system. Now, Garekewe got the nod ahead of top class and experienced seniors being Justices Michael Leburu, lot Moroka, Abednico Tafa, Modiri Letsididi and Tshepho Motswagole. Justice Leburu in particular has been a star performer and one cannot fathom the reason how his razor sharp legal mind continues to escape the attention of the selector. The big issue at hand is not much about her credentials and suitability for the position but it is about a fundamentally flawed system that has given birth to her rising. To shed light on the issue at hand, comments of Senator Rob Donaldson of the Judiciary Committee with Judge Barret are particularly instructive.
“I will simply take a few moments to address judge Barret directly. Judge Barret, I feel genuinely sorry for you. You have strong credentials and merits. However, you are here not because of them. You are here only because you are a token, a pawn. Throughout the rest of history of this country, your name will have an asterisk by it, denoting that your place on the Supreme Court is illegitimate, the result of hypocritical, amoral conniving to turn the court into a far right political rubber stamp by two faced mandarins of a Republican Party destined to go down in flames, consumed by its own internal rot and the fire of its decrepitude. You will forever be denied the opportunity to compete truly on your own merits”.
In other jurisdictions, the demand for fair, open and transparent process of appointment of judicial officers is growing and gathering momentum. Advocating transparency, the Bahamas Bar Association president Khalil Parker has warned that any further judicial appointments made in the absence of a process based on competition and meritocracy will not be recognised. And further advised that “any appointee who purports to take the judicial oath in circumstances where their appointment was not secured in an open, fair, meritocratic and transparent way should not expect to be regarded as honourable” In his book entitled, “Judges our own homebrewed” revered Judge Key DIngake expressed his complete faith in the Bangalore Principles of Judicial Conduct. He note that judges are required to embrace the values of a pluralistic society that promotes democracy, human rights and diversity. It is clear that those who are privileged to serve as judicial officers must know that they don’t have political masters to serve and don’t owe politicians anything.
Judges have only one master to serve and that is dispensing justice. No judge should be beholden to political influence. So as the nation is welcoming Justice Garekwe and wishing her well, she must return the favour by remaining a true servant of justice. All in all, Batswana deserve a better system of appointing its jovial officers. Maintaining a system that tramples upon transparency places our country in danger.
The battle to secure the future of our children and children’s children is in our hands. For 55 years we have voted overwhelmingly to perpetuate a system that concentrates all powers in the hands of the Executive. Complacency and indifference will not carry this nation anywhere.