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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.

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Dingake talks about gay rights in tribute to Kirby

11th January 2022
Dingake

Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.

Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.

In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).

Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. “In a stroke of a pen, he ended the long and tortuous road to equality of gay people.

I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered,” Justice Dingake said.

He said in truth Botswana’s Constitution never denied the right to equality for gay men. It was society and the judges who did – some arguing that the time is not right to extend equality rights to gay persons – forgetting the self-evident truth that we are all born equal and that rights are not negotiable – not even with Judges.

“It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.

There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism,” Justice Dingake wrote.

He added that in Kanani the Court of Appeal held back “our march to freedom for more than a decade – and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution”.

The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. “Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.

They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by ‘public opinion’, which was not right, and they chose not read: ‘sexual orientation’, into section 15 of the constitution, which they could have done.”

Botswana’s Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity – and with a sense of the future – and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution – and to effect the promise of the Constitution – by among other things rejecting the tyranny of the majority.

“Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang.  A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.

When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: ‘the constitution is what the Judges say it is’, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.”

Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book ‘Key Aspects of the Constitutional Law of Botswana’. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.

In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. “Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread,” the Judge wrote.

He said serious debate however cropped up sometime around August 1995, after president Robert Mugabe’s much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.

“Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations,” he said.

He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswana’s criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.

“Within the framework of Botswana’s Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.

Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.”

He added that it needs to be said that it is however fruitless to bury “our heads in the sand and hope the issue will disappear for good”. He concluded: “In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority”.

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Electricity prices could go up

11th January 2022
BERA CEO - Rose Seretse

Consumers could pay more for electricity this year, as the government owned power producer, Botswana Power Corporation (BPC) plans to increase prices for electricity by 5% with effect from the 1st of April 2022.

BPC recent statement on tariff adjustment shows that with the planned 5% increase in electricity tariffs, electricity prices per kWh could increase by 111 thebe for household users, 226 thebe for government, 148 thebe for commercial businesses and 111 thebe for the mining sector.

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Botswana GDP in upward trajectory as economy recovers

11th January 2022
Peggy Serame & President Masisi

Botswana economy is registering growth as the country emerges from one of its worsts economic recessions since independence, following the outbreak of COVID-19 pandemic.

In late December 2021 Statistics Botswana released the country’s Gross Domestic Product (GDP) figures for the third quarter of 2021.

The nominal GDP for the third quarter of 2021 was P49, 260.5 million compared to P48, 684.0 million registered during the previous quarter. This represents a quarterly increase of 1.2 percent in nominal terms between the two periods.

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