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.
Following their loss to the Duma Boko-led lobby in the Botswana National Front (BNF)’s national congress last month, some members of the party are reportedly considering forming a new political party.
According to members, the new party will be formed after they receive a tip-off that the BNF will do all it can to ensure that the aggrieved members do not participate in the 2024 national elections. This will reportedly done through a carefully orchestrated primary elections elimination campaign.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.