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.
Over 2,000 civil servants in the public sector have been interdicted for a variety of reasons, the majority of which are criminal in nature.
According to reports, some officers have been under interdiction for more than two years because such matters are still being investigated. Information reachingÂ WeekendPostÂ shows that local government, particularly councils, has the highest number of suspended officers.
In its annual report, the Directorate on Corruption and Economic Crime (DCEC) revealed that councils lead in corrupt activities throughout the country, and dozens of council employees are being investigated for alleged corrupt activities. It is also reported that disciplined forces, including the Botswana Defence Force (BDF), police, and prisons, and the Directorate of Intelligence and Security (DIS) have suspended a significant number of officers.
The Ministry of Education and Skills Development has also recorded a good number of teachers who have implicated in love relationships with students, while some are accused of impregnating students both in primary and secondary school. Regional education officers have been tasked to investigate such matters and are believed to be far from completion as some students are dragging their feet in assisting the investigations to be completed.
This year, Mmadinare Senior Secondary reportedly had the highest number of pregnancies, especially among form five students who were later forcibly expelled from school. Responding to this publicationâ€™s queries, Permanent Secretary to the Office of the President Emma Peloetletse said, â€śas you might be aware, I am currently addressing public servants across the length and breadth of our beautiful republic. Due to your detailed enquiry, I am not able to respond within your schedule,â€ť she said.
She said some of the issues raised need verification of facts, some are still under investigation while some are still before the courts of law.
Meanwhile, it is close to six months since the Police Commissioner Keabetwe Makgophe, Director General of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katlholo and the Deputy Director of the DIS Tefo Kgothane were suspended from their official duties on various charges.
Efforts to solicit comment from trade unions were futile at the time of going to press.
Some suspended officers who opted for anonymity claimed that they have close to two years while on suspension. One stated that the investigations that led him to be suspended have not been completed.
â€śIt is heartbreaking that at this time the investigations have not been completed,â€ť he toldÂ WeekendPost, adding that â€śwhen a person is suspended, they get their salary fully without fail until the matter is resolvedâ€ť.
Makgophe, Katlholo and Kgothane are the three most high-ranking government officials that are under interdiction.
Botswana Democratic Party (BDP) and some senior government officials are abuzz with reports that President Mokgweetsi Masisi has requested his Vice President, Slumber Tsogwane not to contest the next general elections in 2024.
The impacts of climate change are increasing in frequency and intensity every year and this is forecast to continue for the foreseeable future. African CEOs in the Global South are finally coming to the party on how to tackle the crisis.
Following the completion of COP27 in Egypt recently, CEOs of Africa DFIs converged in Botswana for the CEO Forum of the Association of African Development Finance Institutions. One of the key themes was on green financing and building partnerships for resource mobilization in financing SDGs in Africa
A report; “Weathering the storm; African Development Banks response to Covid-19” presented shocking findings during the seminar. Among them; African DFI’s have proven to be financially resilient, and they are fast shifting to a green transition and it’s financing.
COO, CEDA, James Moribame highlighted that; “Everyone needs food, shelter and all basic needs in general, but climate change is putting the achievement of this at bay. “It is expensive for businesses to do business, for instance; it is much challenging for the agricultural sector due to climate change, and the risks have gone up. If a famer plants crops, they should be ready for any potential natural disaster which will cost them their hard work.”
According to Moribame, Start-up businesses will forever require help if there is no change.
“There is no doubt that the Russia- Ukraine war disrupted supply chains. SMMEs have felt the most impact as some start-up businesses acquire their materials internationally, therefore as inflation peaks, this means the exchange rate rises which makes commodities expensive and challenging for SMMEs to progress. Basically, the cost of doing business has gone up. Governments are no longer able to support DFI’s.”
Moribame shared remedies to the situation, noting that; “What we need is leadership that will be able to address this. CEOs should ensure companies operate within a framework of responsible lending. They also ought to scout for opportunities that would be attractive to investors, this include investors who are willing to put money into green financing. Botswana is a prime spot for green financing due to the great opportunity that lies in solar projects. ”
Technology has been hailed as the economy of the future and thus needs to be embraced to drive operational efficiency both internally and externally.
Executive Director, bank of Industry Nigeria, Simon Aranou mentioned that for investors to pump money to climate financing in Africa, African states need to be in alignment with global standards.
“Do what meets world standards if you want money from international investors. Have a strong risk management system. Also be a good borrower, if you have a loan, honour the obligation of paying it back because this will ensure countries have a clean financial record which will then pave way for easier lending of money in the future. African states cannot just be demanding for mitigation from rich countries. Financing needs infrastructure to complement it, you cannot be seating on billions of dollars without the necessary support systems to make it work for you. Domestic resource mobilisation is key. Use public money to mobilise private money.” He said.
For his part, the Minster of Minister of Entrepreneurship, Karabo Gare enunciated that, over the past three years, governments across the world have had to readjust their priorities as the world dealt with the effects and impact of the COVID 19 pandemic both to human life and economic prosperity.
“The role of DFIs, during this tough period, which is to support governments through countercyclical measures, including funding of COVID-19 related development projects, has become more important than ever before. However, with the increasingly limited resources from governments, DFIs are now expected to mobilise resources to meet the fiscal gaps and continue to meet their developmental mandates across the various affected sectors of their economies.” Said Gare.