* ‘Judges cite his judgements with approval across the world’ This year I read three reviews of books written by Justice Professor Oagile Bethuel Key Dingake, a former Judge of the High Court of Botswana and now with the Supreme and National Courts of Papua New Guinea (PNG).
The books are: In Pursuit of Justice, Judges, and Towards A People’s Constitution for Botswana. Chief Justice Salika, Chief Justice of the Supreme and National Courts of PNG and Professor Crawford, Dean of Law at James Cook University, in Australia and Emeritus Professor of Law, Yash, Ghai, University of Hongkong, reviewed the books.
Recently I bought my own copies at Exclusive Books, OR International Airport, Johannesburg, South Africa. The most recent review of his latest book: Towards A People’s Constitution for Botswana, with a foreword by Professor Emeritus Yash Ghai, one of the foremost Kenyan scholars in Constitutional Law, and former Special Representative of the UN Secretary General, in Cambodia on Human Rights, inspired my article.
I felt provoked to pay tribute to Dingake, a remarkable African Jurist, Judge and scholar with whom I have interacted for more than a decade. My own reviews of each of the above books is forth coming. However, as a prelude, I seek to comment generally about this legal giant who remains disarmingly humble.
In sketching in broad strokes Judge Dingake’s illustrious career at the service of the law, which all the above books are about, I am reminded of what he once wrote in one of his judgements and repeated at several fora. He said: “Every historical epoch has its mood and the judges for that mood.
It falls upon the judges of today to raise the bar on human rights discourse. To do this they need to have, hearts, brains and courage.” The above sentiment explains why many people see in him a judicial icon, a judge with steely determination to make an impact in the world by using law as an instrument of improving people’s welfare.
Amongst bodies concerned with human rights and equal rights for all, Dingake’s name often crops up. Judges cite his judgements with approval across the world. Scholars approve his thinking whilst others cross swords with him.
Many UN agencies have collated his judgements and used them as teaching materials. In legal circles in Botswana where he is from, he is lionised as fearless and independent. Mmegi Newspaper has described him as “every person’s judge”. Last year on the eve of his departure to PNG, one local commentator hit the nail on the head, when he wrote a piece entitled: “No Key no Justice.”
Many lawyers I have met in the SADC region who are familiar with Judge Dingake’s jurisprudential output say it was an apt and fitting tribute. In feminist circles across the globe he is celebrated as a pathfinder or the Thurgood Marshall of the gender justice movement. His decision in Mmusi is cited religiously with approval by many progressive courts and has attracted dozens of academic commentaries in refereed journals.
Many of his colleagues on the bench and in academia see him as the Lord Denning of Botswana. This sentiment is shared by Professor Evance Kalula, of the University of Cape Town.
Early this year, Professor Paula Tavrow, at the University of California, Los Angeles, in the US, compared Dingake to that stalwart of the US Supreme Court, Ruth Bader Ginsburg, who is famous for being an advocate of gender equality.
In passing judgement in the Mmusi case, which won him an international gender justice award, Dingake wrote: “It seems to me that the time has now arisen for the justices of this court to assume the role of judicial midwife and assist in the birth of the new world struggling to be born. Discrimination against women has no place in our modern-day society.”In labour law jurisprudence, he has sought to uphold the values of the core ILO conventions, which, amongst other things, consider the right of labour to strike, after exhausting all avenues of resolving a dispute, as sacrosanct.
He is famous for using the metaphor of a boxing ring to capture the essence of a strike in industrial relations, always cautioning that the courts must be impartial arbiters and not seek to constrain any of the participants to the ‘boxing match’.
Professor Webner of Keele University, in the United Kingdom, in one of his books, wrote that Judge Dingake’s judgements exuded amazing intellectual depth and brilliance, and went as far as suggesting that one of his judgements in labour law, must be made “an annexure to the Botswana Constitution”.
Over the course of his illustrious legal and judicial career, conservative judges have often squirmed in their revolving chairs, but never succeeded to uproot his pro-human rights reasoning. His simplicity of style, mastery of the facts and the law, comparative jurisprudential output and occasional excesses in scholastic sophistry are legendary.
It is on account of this sophistry that Arnold Tsunga, Director of International Commission of Jurists, Africa Division, once described Judge Dingake, as “one of the most intellectually charged judges in Africa”. Judge Dingake’s contribution to constitutional law in Botswana is legendary and many law students in Africa and beyond see him as a role model and inspiration. Some people have suggested that his many riveting speeches on Gender Based Violence, on TB, the Law, the Media, HIV and criminal law must be turned into a book and preserved for future generations.
A Professor at the University of Cape Town, where Judge Dingake is a Professor of Public Law, recently reminded me of Judge Dingake’s absolute commitment to constitutionalism and the rule of law.
He pointed out that Dingake has often used the constitution as a transformative instrument, not only to overturn oppressive and archaic laws, but also institutions and practices that constrained humanity from realising the rights of minorities: women, children, refugees, prisoners and the LGBTI community.
In most of his leading constitutional law pronouncements such as in his famous cases including Diau, Nelson, Mmusi, Oatile, Bopeu, Mathabo and Khwarae, he made it clear that it is emphatically the function of the courts to define the boundaries, context and content of human rights.
I have been anxious to know where Judge Dingake gets all the time to write books. The clue I got reading from some snippets online, about his life, is that his parents inculcated in him at an early stage an amazing work ethic, self-discipline and the importance of achieving targets. His parents taught him that hard work does not kill. They taught him to love every person and to eschew greediness.
His iconic brother, Michael Dingake, long-time political prisoner at Robben Island in South Africa alongside revered Nelson Mandela, once wrote about Judge Dingake’s aversion to greed.
He said that once, whilst at the University of London doing his Masters, the judge sent him a telling postcard. It had an inscription from Dom Helder Camara, saying: “When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist”.
It is safe to conclude that having proved against all odds that he is an intellectual colossus, who cannot be ignored or wished away - a judicial high priest and indefatigable crusader of justice – Dingake’s place in the annals of history, is assured.
*Moses Magadza is a multiple award-winning journalist and PhD student with research interests in how the media frames key populations.