Crisis in the Judiciary deepens

Nicholas Mokwena - BG reporter
Wednesday, 15 February 2017
Crisis in the Judiciary deepens

Disagreements between attorneys at law and Judicial officers is far from over and could throw the judiciary into the third year of crisis, Botswana Guardian has observed.

The judicial crisis has been experienced in the past two years with both sections at each other’s throats over processes and procedures and professional conduct. Anticipation has been that given the two-year ‘war’, 2017 would be a different one. However, as things played out at the commencement of the legal year on Tuesday this week, it was evident that the duo still lives in different worlds.Attorneys at law represented by Law Society of Botswana (LSB), judges represented by Chief Justice Maruping Dibotelo and judicial officers supported by Attorney General on behalf of government sang opposing tunes on the state of the country’s judiciary. The only issue that the trio found common ground on was the resolution of forum shopping.

As for appointment of judges, dispensation of justice (timeline for completion of cases and delivering of judgement) and government’s reluctance to review the Legal Practitioners Act, views remained divergent. The society this week through its Chairman, Kgalalelo Monthe has once again stated that Judges should be appointed on merit as well as integrity and suitability of character and temperament.

He explained that knowledge of the law, the balance of mind, the ability to brush aside the inessential and drive to the heart of a case are crucial. The work of the judiciary is too important to entrust to those of doubtful competence and a bad Judge may do irreparable damage since there are some judicial errors which even the most elaborate system of appeals cannot remedy. “This is particularly so because bad Judges are capable of shaking public confidence in the judiciary,” said Monthe.

Even though Chief Justice Maruping Dibotelo has indicated that through the Judicial Case Management Committee chaired by Justice Tafa there has been some improvement, LSB tells a different story. Dibotelo has stated that timeframes for completion of cases including the delivery of judgements are generally being observed. He said where non-compliance was observed; oversight mechanisms for redress have been put in place. The society however says many legal practitioners; litigants and accused persons have a different story to tell.  Monthe revealed that the Society has therefore resolved to create measures to name Judges whose judgments are delayed beyond the 90 days from the time that the matter is concluded. The 90 days is a measure that the High Court has set for itself for delivery of judgments.

According to Monthe, the Society will publish details of the cases indicating dates when the matter was concluded as well as the name of the concerned Judge. This statement could be observed to have sent some elements of displeasure and distaste among judges and magistrates who attended the legal year opening.Another matter which the LSB is not pleased with, is the participation of the chief justice in cases where he is a party.

The Society has ongoing litigation with the Judicial Service Commission (JSC) on issues relating to its mandate, said Monthe adding that they have expressed concern that in such cases, it is either the Chief Justice, who is Chairman of the Commission, who empanels the bench to decide a matter in which he is a party.

The society says this practice is wholly unsatisfactory as it creates a perception of conflict of interest.  “Similarly, the Society notes that in appeals in which the Judicial Services Commission is a party, the Judge President (Ian Kirby) who is a member of JSC, empanels the court to hear a matter despite being a party. Again, this creates a perception of conflict of interest. At the ceremony of the Opening of the Legal Year in 2016 the Society announced that it intended to launch litigation challenging the then recent appointment of one of the Judges of the Court of Appeal. Indeed, the Society went ahead and filed a Statutory Notice in terms of the State Proceedings Act,” he said.

Monthe revealed that whilst the Society was yet to proceed with the action, the announcement caused quite some agitation to the extent that Kirby publicly called “our then Chairman ‘rude’ and offered a public apology to the affected Judge”. He said it was surprising that Kirby included the said Judge in all three (3) appeals of the LSB during the just-ended session. This also seemed to have caused a stir as the chief Justice warned Monthe to wrap up his address since he had run out of his allocated time.

The tension could be felt within the two courtrooms which were used for the proceedings of the day. The LSB chairman would however not call it a day without responding to Kirby’s utterance over separation of powers at the opening of the just-ended court of appeal session.

LSB has questioned the value these comments brought. Monthe said their hope is that whatever the intention was it has not been achieved. The Society notes that if the credibility of the Judiciary in Botswana is to be ensured episodes such as these need to be avoided at all costs, he argued.“The Society believes that the role of the Court of Appeal is to interpret the law in order to ensure clarity and certainty. Its role is not to provide a “stabilising factor” as stated by the JP. This role as envisaged by the JP sends a somewhat chilling and sinister message to those who litigate against the Executive and Judges who preside over the matters”.

Acting Attorney General Morulaganyi Chamme with a mediatory tone called for respect and professionalism when handling differences. He said there is nothing wrong in addressing the issue of appointment but it would be a problem when an individual is targeted and addressed specifically. Attorney cum politician, Duma Boko told Botswana Guardian at the end of the proceedings that it is evident that the judiciary is still in crisis. He said the issues of lack of transparency and accountability in relation to appointment of judges has been persistent. 

He revealed that the Chief Justice conveniently sidestepped on the issues of concern but “fortunately the Law Society brought them back into the fore-ground.”“One hopes that from today issues as ventilated by LSB chairman will occupy centre stage and society (public) will reflect on and debate these issues robustly going forward and come up with lasting solutions.” In his response to last year’s State of the Nation Address, Boko who is the President of Umbrella for Democratic Change and Leader of Opposition in Parliament, called for intervention to rescue the Judiciary. He said from the perspective of the UDC all institutions of society including the judiciary will undergo reform to ensure they best serve Batswana.

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