Connect with us
Advertisement

Composition of JSC is a mockery – UB head of Law department

A University of Botswana Senior lecturer who is also Head of Department of Law, Dr. Bonolo Ramadi Dinokopila has dismissed the Judicial Service Commission (JSC) asserting that its composition is just a “mockery.”

The composition of the JSC, he pointed out that “it is in itself a mockery to the principles of constitutional democracy.” In his upcoming academic paper, titled: “the role of judiciary in enhancing constitutional democracy in Botswana,” seen by Weekend Post, he contended that, in the main, the appointment process in Botswana is largely entrusted to persons who are appointed, in the first place, by the President acting alone. A possible argument may be that the President (Lt. Gen. Seretse Khama Ian Khama) appoints only one member of the JSC while the rest of the members hold their positions in the JSC ex officio, he highlighted.

“Such an argument loses sight of the members’ appointment to their positions, all of whom are appointed by the President acting alone. The possibility of lack of independence from the executive cannot be ruled out and makes it difficult for one to argue against the perception that the judiciary is not politically independent.” The UB head of law department explained that it severely falls short of international standards relating to the independence, impartiality and integrity of the judiciary.

He added that “this is in the sense that its composition does not qualify as a method of selection of judges that is able to effectively safeguard against judicial appointments for improper motives.” As rightly pointed out previously by the Law Society of Botswana (LSB), he said the JSC is largely dominated by Executive appointees as five out of its six members are appointed by a President.

“The secrecy surrounding the appointment of judges, which is based on an argument that the JSC may regulate its own procedure as per section 103 of the Constitution, adds to the shortcomings of the appointment process. In a constitutional democracy, such secrecy is totally unnecessary and is counterproductive,” Dr. Dinokopila said in the academic paper.

The UB Senior lecturer emphasized that the appointment of judges is a relevant factor to the performance and contribution of the judiciary to constitutional democracy, and therefore a flawed appointment process of judicial officers creates a site for possible political interference. Dr. Dinokopila also observed in the paper to be officially published sooner or later that the Constitution in Botswana has created two centres of power within the Judiciary.

He justified that this is so because the Constitution provides for the appointment of the Chief Justice and the Judge President of the Court of Appeal as two separate offices occupied by two different persons. “The Chief Justice (Maruping Dibotelo) is supposed to be the head of the Judiciary. However, he/she is not a permanent member of the highest Court of the land as is the case in most jurisdictions. The Judge President (Ian Kirby) is the head of the highest Court of the land, meaning that he is the one who provides judicial leadership in his position as the President of the Court of Appeal. He can set aside decisions made by the Chief Justice and is able to influence the direction of the jurisprudence of the country with respect to important matters,” the UB Law expert said.

As such Dr. Dinokopila hinted in his research paper that there is need for reforms in the judiciary saying such reforms will definitely enhance the role of the courts in furthering constitutional democracy in the coming fifty years (from now). The first of such reforms, he said should be geared towards ensuring and safeguarding the independence of the judiciary. In particular, he said (in such reforms) the appointment of judges should be reviewed so as to ensure that the process is insulated from external influences and will lead to a more transparent appointment of judicial officers.

“That is, the composition of the JSC must be reviewed so as to ensure its compliance with international standards relating to the composition of such institutions.”  Dr. Dinokopila also expressed discontentment that it appears that the Industrial Court is considered as a Court of law and equity – and a superior court at that – but does not, de facto, form part of the judiciary. He continued: “Judges of the Industrial Court are appointed by the President without the involvement of the JSC. The de facto exclusion of the Industrial Court from the judiciary is indeed puzzling.”

Notwithstanding the decision of the Court of Appeal in (a case known as) the Setsogo case, the manner of appointment of judges of this Court should be considered as unconstitutional, and the Trade Disputes Act must therefore be amended to make provision for the involvement of the JSC in the appointment of judges of the Industrial Court, he said.

According to the law Senior Lecturer, it should be admitted that the judiciary is operating within the boundaries of a very limiting constitutional framework. He said Botswana’s 1966 Constitution has had a negative impact on the extent to which the courts can protect the rights of the citizenry for example.

“There are times when the judiciary has been viewed with suspicion by members of the community, especially members of the opposition parties, the legal fraternity and the labour movement. There have been instances where the judiciary has been accused of failing to fulfill its mandate under the constitution on allegations that there is too much deference to the executive.” To that end, he said the Constitution confirms that the judiciary is or should be considered as an organ of the state in Botswana.

However he submitted that it must be pointed out that the judiciary is now being identified as the Administration of Justice of Justice (AOJ), a department in the Ministry of Defence, Justice and Security. “This means that the judiciary does not have a separate budget as an arm of government and has its finances controlled by the Minister as opposed to the Chief Justice.”

The UB academic also said in his paper that the independence of the judiciary might be enhanced by ensuring its financial autonomy which can be achieved by ensuring that the judiciary draws its funding from the country’s consolidated fund. “Once the judiciary is able to control its budget, it should be able to allocate its resources in a manner that is consistent with their vision and needs,” he said.

Continue Reading

News

UDC founder warns against merger

19th October 2020
Ex UDC Convener: Mpotokwane

Lebang Mpotokwane, one of the conveners who presided over the opposition cooperation talks that resulted in the formation of the Umbrella for Democratic Change (UDC), has advised against changing the current umbrella model in favour of a merger as proposed by others.

The Botswana Congress Party (BCP) leader, Dumelang Saleshando recently went public to propose that UDC should consider merging of all opposition parties, including Alliance for Progressives (AP) and Botswana Patriotic Front (BNF).

Saleshando has been vehemently opposed by Botswana National Front (BNF), which is in favour of maintaining the current model.  BNF’s position has been favoured by the founding father of UDC, who warned that it will be too early to ditch the current model.

“UDC should be well developed to promote the spirit of togetherness on members and the members should be taught so that the merger is developed gradually. They should approach it cautiously. If they feel they are ready, they can, but it would not be a good idea,” Mpotokwane told WeekendPost this week.

Mpotokwane and Emang Maphanyane are the two men who have since 2003 began a long journey of uniting opposition parties in a bid to dethrone the ruling Botswana Democratic Party (BCP) as they felt it needed a strong opposition to avoid complacency.

Tonota born Mpotokwane is however disappointed on how they have been ejected from participating in the last edition of talks ahead of the 2019 general elections in which BCP was brought on board.  However, despite the ejection, Mpotokwane is not resentful to the opposition collective.

He said the vision of opposition unity was to ultimately merge the opposition parties but he believes time has not arrived yet to pursue that path. “The bigger picture was a total merger and we agreed that with three independent parties, members might be against merger eventuality so the current model should be used until a point where they are now together for as long as possible,” he said.

“UDC should gradually perform better in elections and gain confidence. They should not rush the merger. We have been meeting since 2003, but if they rush it might cause endless problems. If they are ready they can anyway,” he advised. For now the constituent parties of the umbrella have been exchanging salvos with others (BCP and BNF).

“There are good reasons for and against merging the parties. Personally, I am in favour of merging the parties (including AP and BPF) into a single formation but I know it’s a complex mission that will have its own challenges,” Saleshando said when he made his position known a week ago.

“Good luck to those advocating for a merger, it will be interesting to observe the tactics they will use to lure the BPF into a merger,” former BNF councillor for Borakalalo Ward and former BNF Youth League Secretary General, Arafat Khan, opined in relation to BCP’s proposed position.

Mpotokwane, who is currently out in the cold from the UDC since he was ejected from the party’s NEC in 2017, said the current bickering and the expected negotiations with other parties need the presence of conveners.

“We did not belong to any party as conveners so we were objective in our submissions. If party propose any progressive idea we will support, if it is not we will not, so I would agree that even now conveners might be key for neutrality to avoid biasness,” he observed. Despite being abandoned, Mpotokwane said he will always be around to assist if at all he is needed.

“If they want help I will be there, I have always been clear about it, but surely I will ask few questions before accepting that role,” he said. UDC is expected to begin cooperation talks with both AP and BPF either this week or next weekend for both upcoming bye-elections (halted by Covid-19) and 2024 general elections and it is revealed that there will be no conveners this time around.

Continue Reading

News

BDP attaches Boko’s property

19th October 2020
DUMA BOKO

The Botswana Democratic Party (BDP) moved through its lawyers to attach the property of Umbrella for Democratic (UDC) President Duma Boko and other former parliamentary contestants who failed in their court bid to overturn the 2019 general elections in 14 constituencies.

WeekendPost has established that this week, Deputy Sheriffs were commissioned by Bogopa Manewe Tobedza and Company who represented the BDP, to attach the properties of UDC elections contents in a bid to recover costs.  High Court has issued a writ of execution against all petitioners, a process that has set in motion the cost recovery measures.

This content is locked

Login To Unlock The Content!

Continue Reading

News

COVID-19 exposes decay in the education system

19th October 2020
Education Systm

Botswana Sectors of Teachers Union (BOSETU) says COVID-19 as a pandemic has negatively affected the education sector by deeply disrupting the education system. The intermittent lockdowns have resulted in the halting of teaching and learning in schools.

The union indicated that the education system was caught napping and badly exposed when it came to the use of Information System (IT), technological platforms and issues of digitalisation.

“COVID-19 exposed glaring inefficiencies and deficiencies when it came to the use of ITC in schools. In view of the foregoing, we challenge government as BOSETU to invest in school ITC, technology and digitalization,” says BOSETU President Kinston Radikolo during a press conference on Tuesday.

As a consequence, the union is calling on government to prioritise education in her budgeting to provide technological infrastructure and equipment including provision of tablets to students and teachers.

“Government should invest vigorously in internet connectivity in schools and teacher’s residences if the concept of flexi-hours and virtual learning were to be achieved and have desired results,” Radikolo said.

Radikolo told journalists that COVID-19 is likely to negatively affect final year results saying that the students would sit for the final examinations having not covered enough ground in terms of curriculum coverage.

“This is so because there wasn’t any catch up plan that was put in place to recover the lost time by students. We warn that this year’s final examination results would dwindle,” he said.

The Union, which is an affiliate of Botswana Federation of Public, Private and Parastatal Union (BOFEPUSU), also indicated that COVID-19’s presence as a pandemic has complicated the role of a teacher in a school environment, saying a teacher’s role has not only transcended beyond just facilitating teaching and learning, but rather, a teacher in this COVID-19 era, is also called upon to enforce the COVID-19 preventative protocols in the school environment.

“This is an additional role in the duty of a teacher that needs to be recognized by the employers. Teachers by virtue of working in a congested school environment have become highly exposed and vulnerable to COVID-19, hence the reason why BOSETU would like teachers to be regarded as the frontline workers with respect to COVID-19,” says Radikolo.

BOSETU noted that the pandemic has in large scales found its way into most of the school environments, as in thus far more than 50 schools have been affected by COVID-19. The Union says this is quite a worrying phenomenon.

“As we indicated before when we queried that schools were not ready for re-opening, it has now come to pass that our fears were not far-fetched. This goes out to tell that there is deficiency in our schools when it comes to putting in place preventative protocols. In our schools, hygiene is compromised by mere absence of sanitizers, few hand-washing stations, absence of social distancing in classes,” the Union leader said.

Furthermore, Radikolo stressed that the shifting system drastically increased the workload for teachers especially in secondary schools. He says teachers in these schools experience very high loads to an extent that some of them end up teaching up to sixty four periods per week, adding that this has not only fatigued teachers, but has also negatively affected their performance and the quality of teaching.

In what the Union sees as failure to uphold and honour collective agreements by government, owing to the shift system introduced at primary schools, government is still in some instances refusing to honour an agreement with the Unions to hire more teachers to take up the extra classes.

“BOSETU notes with disgruntlement the use of pre-school teachers to teach in the mainstream schools with due regard for their specific areas of training and their job descriptions. This in our view is a variation of the terms of employment of the said teachers,” says Radikolo.

The Union has called on government to forthwith remedy this situation and hire more teachers to alleviate this otherwise unhealthy situation. BOSETU also expressed concerns of some school administrators who continuously run institutions with iron fists and in a totalitarian way.

“We have a few such hot spot schools which the Union has brought to attention the Ministry officials such as Maoka JSS, Artesia JSS, and Dukwi JSS. We are worried that the Ministry becomes sluggish in taking action against such errant school administration. In instances where action is taken, such school administrators are transferred and rotated around schools.”

Continue Reading
Do NOT follow this link or you will be banned from the site!