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Law Society wants judicial arm to bury the hatchet

The Law Society of Botswana (LSB) wants all stakeholders in the justice system to settle the incessant divisions and wars within the judiciary itself, and smoke a peace pipe.


Independents have been observing that the judiciary is in crisis following the contentious issues of alleged forum shopping, suspension of the four judges of the High Court, rejection to appoint a recommended candidate to the high court by President Lt. Gen. Seretse Khama Ian Khama, despite the Judicial Service Commission (JSC) advice among other issues.


When he took to the podium on Thursday during the opening of the legal year, Chairman of LSB, Kgalalelo Monthe, called on all the judicial stakeholders to bury the hatchet and turn a new page in the entire judiciary. “All of us individually and collectively, are not bigger than the nation that we all strive to serve and any failure to settle, the nation will require a full explanation as to what has accrued to it by reason of what has been reduced to a chess game. Surely, any ruffled feathers must have been soothed because time is a great healer,” Monthe told the audience in which Vice President, Mokgweetsi Masisi was present, sitting in for President Khama.


At the time, Khama was meeting his Zambian counterpart, Edgar Lungu in Kazungula. Monthe pointed out that it is crucial that the judicial partners reconcile while emphasizing that at the end there will be no heroes and villains nor victors and vanquished as all will be scarred and in instances permanently. While pointing out to a road of reconciliation he nonetheless explained what he termed has been the crisis engulfing the judiciary.


He gave an example with the matter of all the Judges, including those suspended, which he emphasised must be settled with each party retaining its integrity so that the judiciary can return to conditions of normalcy. He stated that: “the past two years can best be described as annus horribilis for the Botswana judiciary. Four judges of the High Court remain on suspension and fight to vindicate their rights in the High Court. We are now seven months shy of two years since the suspension.”


Appointment of judges is flawed


The LSB has always maintained that the appointment of judges is unsound. Monthe said over the years, the Society has called for a change in the manner in which Judges are appointed. He also mentioned that the Society has ongoing litigation with the Judicial Service Commission (JSC) on issues relating to its mandate.


“We have expressed concern that in such cases, it is either the Honourable Chief Justice Maruping Dibotelo, who is Chairman of the Commission, who empanels the bench to decide a matter in which he is a party. This practice is wholly unsatisfactory as it creates a perception of conflict of interest.”


Similarly, Monthe stated that the Society notes that in appeals, in which the Judicial Services Commission is a party, the Judge President who is a member of JSC, empanels the court to hear a matter despite being a party to it, which he said creates a perception of conflict of interest.


“However, the Society believes that Judges should be appointed on merit as well as integrity and suitability of character and temperament. 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,” Monthe pointed out.

LSB response to Ian Kirby on Separation of Powers


The LSB further took a swipe at Court of Appeal Judge President Ian Kirby, saying that the society suspected sinister motives of his comments made at the opening of the just ended session of the Court of Appeal. Kirby had at that time reflected his views on separation of powers and the role of the CoA.


“What value these comments, which did not seem to have any relevance brought, is anybody’s guess, but we do have our own suspicions. It is our ardent hope that whatever the intention was has not been achieved.” He noted that if the credibility of the Judiciary in Botswana is to be ensured,  such episodes need to be avoided at all costs.


According to Monthe, the role of the CoA is to interpret the law in order to ensure clarity and certainty and not to provide a “stabilizing factor” as stated by Kirby. “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,” he added.


Localization of the Court of Appeal bench


Monthe recalled that at the opening of the legal year in 2016, the Society made a point that in the dispensation of justice, the presiding officers of court must reflect the demographics of the society that they serve. Further, he said, the society noted and still notes that this remains a challenge not so much in the High Court as in the Court of Appeal; in that court, gender, race and age are disproportionate to the demographics of the country.


He said the Society was in making that statement, hauled over coals, and shamed as outcasts who were ill-mannered, racist and xenophobic. He added that the Executive was so agitated that a statement was immediately issued expressing the above sentiments and notifying the Society of an immediate embargo in relations.


Out of 10 Court of Appeal judges, native Justices are Isaac Lesetedi, Monametsi Gaongalelwe, and Michael Leburu. The remaining six are all white including one of Indian extraction (Appeal’s Justice Singh Walia) who has announced his retirement due in June.  The other one is an Afrikaner being Appeal’s Justice Brand. The remaining ones are of Saxon extraction (Lord Abernathy, J.A Foxcroft, Lord Hamilton, J.A Howie and Kirby).


The chairman explained that the Society however still believes that it is only right and proper and in keeping with international standards, “that our Court of Appeal should reflect who we are and in so saying, it can hardly be said to be xenophobic and or racist in any manner”.


He said it is no longer in doubt that Judges make law and that Law is not an abstract science to the extent that Judges are influenced by their own values to reach a decision. “In that regard, the Court of Appeal judgments must necessarily reflect our hopes, aspirations and more. The jurisprudence coming from there must carry our desires as encapsulated in Vision 2016.”


He also said the current procedure for appointment of Justices of Appeal is one of secrecy and therefore not transparent. The secrecy, he said, leaves the society uniformed on the process and the qualities considered that makes a person suited to be a Judge of the Appeal.


Monthe stressed: “as a public institution, the Court of Appeal should not be immune from our vision of an enlightened, open, informed and transparent nation. The appointment of the Judges of the Appeal therefore ought to follow the established procedure for calling for the advertisement and for anyone interested, including and especially serving Judges of the High Court to apply.”


Delayed delivery of judgments


As over the years, the LSB said the Society has noted with concern delayed delivery of judgments. Despite assurance that all is well provided by the AOJ through statistics, he added that many legal practitioners, litigants and accused persons have a different story to tell.


“Matters under Certificate of Urgency and Summary Judgments sometimes have a judgment delivered more than a year after the proceedings were launched and arguments completed,” he asserted adding that this therefore defeats the purpose of both procedures to the detriment of litigants.


“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. The Society will publish details of the cases indicating dates when the matter was concluded as well as the name of the concerned Judge,” he further warned.

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Understanding the US Electoral College and key election issues 

28th October 2020
Mark J Rozell

The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.

Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.

US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.

Dr Mark Rozell, a Dean of  the School of Policy and Government at George Mason University  in  Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.

“The founders of our Republic de-centralised  authority  significantly  in  creating  our  constitutional  system,  which  means that  they  gave  an  enormous  amount  of  independent  power  and  authority  to  State  and  local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.

Unlike  parliamentary  democracies, like Botswana the  United  States  does  not  have  all  of  the  national government elected in one year. They do not have what is commonly called mandate elections where  the  entire  federal  government  is  elected  all  in  one  election  cycle  giving  a  “mandate”  to  a particular political party to lead, and instead US have what are called staggered elections, elections over time.

The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators  serve  for  six  years  and  one  third  of  the  Senate is elected every  two  years.

For this election cycle, US citizens will be electing the President and Vice

President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.

An  important  facet  of  US electoral  system  to  understand  given  the  federalism  nature  of  the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.

“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State  is  assigned  a  number  of  electors  to  our  Electoral  College  and  the  candidate  who  wins  the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.

“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”

Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to  win  a  State  by  one  vote  to  win  a  100 percent of  its  electors,  the  margin  does  not  matter.

“Donald  Trump  won  many  more  States  by  smaller  margins,  hence  he  got  an  Electoral  College majority.”

Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.

“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going  to  break  with  the  popular  vote,’’ Dr Rozell said.

“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”

There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.

If however there are more candidates, and  this  happens  extremely  rarely,  and  a  third  candidate  got  some electors  to  the  Electoral  College  denying  the  two  major  party  candidates,  either  one  getting  a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.

“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.

BLUE STATES vs RED STATES

Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.

Many  states  have  populations  that  are  so  heavily  concentrated  in  the  Democratic party or the Republican party that there is really no competition in those states.

California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.

However there are swing  states, where  there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.

“So  it  ends  up  making  a  national  contest  for  the  presidency  actually  look  like  several  state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.

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Masisi to make things right with Dangote

26th October 2020

High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.

Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana.  “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.

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Dow wants GBV culprits isolated

26th October 2020
Unity Dow

As murder cases and violent incidents involving couples and or lovers continue to be recorded daily, Specially Elected Member of Parliament, Dr Unity Dow has called for more funding of non-governmental organizations and accelerated action from government to come up with laws that could inhibit would-be perpetrators of crimes related to Gender Based Violence (GBV).

Just after Dr Dow had deposited her views on this subject with this reporter, a young man in Molepolole opened fire on a married woman he was having an affair with; and ended her life instantly. While it is this heinous cases that get projected to the public space, the former minister argues that the secrecy culture is keeping other real GBV cases under wraps in many spaces in the country.

The former Minister of Foreign Affairs and International Cooperation said there is GBV all the time in all kinds of places. “We have become accustomed to stories of rapes, marital rapes, defilement of children, beatings and psychological violence and even killings,” she said.

Gender-based violence is a phenomenon deeply rooted in gender inequality, Dow is worried that there is absolutely no social punishment for perpetrators; they will continue to have the same friends, jobs, wives, homes, as before. Yet another factor, she said, is that there is little or no “justice” for victims of GBV.

The renowned activist said justice for GBV victims is not just the jailing of the perpetrator. “Justice for victims means an agile, victim-friendly, accessible (time, money and procedures) and restorative justice system.”

Asked what could be leading to a spike in Gender Based Violence cases or incidents, she observed that there is no one factor to which this spike can be attributed. “The most obvious factor is stress as a result of economic distress and or poverty. Poverty makes one vulnerable and open to compromises that they would otherwise not make. For perpetrators with anger management issues, economic stress leads to lashing out to those closest to them. Another factor is the disintegration of families and family values,” she opined.

According to Dow, no government anywhere in the world is doing enough, period. “We know the places and spaces where women and girls are unsafe. We know the challenges they face in their attempts to exit those spaces and places.” The former Judge of the High Court said GBV undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in the culture of silence.

Asked what could be done to arrest GBV cases, Dow said it is critical to involve and fund civil society organizations. She observed that much of the progress done in the area of women’s human rights was during the time when Botswana had strong and funded civil society organizations.

“The funding dried up when Botswana was declared a middle-income country but unfortunately external funding was not replaced by local funding,” she acknowledged.

Further Dow said relevant government institutions must be funded and strengthened.

“Thirdly, create a society in which it is not okay to humiliate, rape, beat or kill women. You create this by responding to GBV the same way we have responded to livestock theft. We need to create agile mechanisms that hear cases quickly and allow for the removal of suspected perpetrators from their homes, work places, boards, committees, etc.”

The former Minister said the much anticipated Inter-Ministerial Task Force on Gender Based Violence will have its work cut out for it. According to Dow, GBV is not just a justice issue, it’s not just a gender issue, but rather an issue that cuts across health, education, labour, economic, housing and politics. “As long as any one believes it is someone else’s problem, we will all have the problem,” she said.

In her view, Dow said every work, educational and other place must have a GBV Policy and/or Code of Conduct. “It is important that we acknowledge that the majority of men are law-abiding. The problem is their silence, in the face of injustice,” she observed.

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