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.
Minister of Presidential Affairs, Governance and Public Administration, Kabo Morwaeng together with Permanent Secretary to the President (PSP) Elias Magosi, this week refused to name and shame the worst performing Ministries and to disclose the best performing Ministries since beginning of 12th parliament including the main reasons for underperformance.
Of late there have been a litany of complaints from both ends of the aisle with cabinet members accused of providing parliament with unsatisfactory responses to the questions posed. In fact for some Botswana Democratic Party (BDP) backbenchers a meeting with the ministers and party leadership is overdue to address their complaints. Jwaneng-Mabutsane MP, Mephato Reatile is also not happy with ministers’ performance.
Bokamoso Private Hospital is battling a P10 million legal suit for a botched fibroids operation which resulted in a woman losing an entire womb and her prospects of bearing children left at zero.
The same suit has also befallen the Attorney General of Botswana who is representing the Ministry of Health and Wellness for their contributory negligence of having the unlawful removal of a patient, Goitsemang Magetse’s womb.
According to the court papers, Magetse says that sometimes in November 2019, she was diagnosed with fibroids at Marina Hospital where upon she was referred to Bokamoso Private Hospital to schedule an appointment for an operation to remove the fibroids, which she did.
Magetse continues that at the instance of one Dr Li Wang, the surgeon who performed the operation, and unknown to her, an operation to remove her whole womb was conducted instead. According to Magetse, it was only through a Marina Hospital regular check-up that she got to learn that her whole womb has been removed.
“At the while she was under the belief that only her fibroids have been removed. By doing so, the hospital has subjected itself to some serious delictual liability in that it performed a serious and life changing operation on patient who was under the belief that she was doing a completely different operation altogether. It thus came as a shock when our client learnt that her womb had been removed, without her consent,” said Magetse’s legal representatives, Kanjabanga and Associates in their summons.
The letter further says, “this is an infringement of our client‘s rights and this infringement has dire consequences on her to the extent that she can never bear children again”. ‘It is our instruction therefore, to claim as we hereby do, damages in the sum of BWP 10,000,000 (ten million Pula) for unlawful removal of client’s womb,” reads Kanjabanga Attorneys’ papers. The defendants are yet to respond to the plaintiff’s papers.
What are fibroids?
Fibroids are tumors made of smooth muscle cells and fibrous connective tissue. They develop in the uterus. It is estimated that 70 to 80 percent of women will develop fibroids in their lifetime — however, not everyone will develop symptoms or require treatment.
The most important characteristic of fibroids is that they’re almost always benign, or noncancerous. That said, some fibroids begin as cancer — but benign fibroids can’t become cancer. Cancerous fibroids are very rare. Because of this fact, it’s reasonable for women without symptoms to opt for observation rather than treatment.
Studies show that fibroids grow at different rates, even when a woman has more than one. They can range from the size of a pea to (occasionally) the size of a watermelon. Even if fibroids grow that large, we offer timely and effective treatment to provide relief.
The Alliance for Progressives (AP) President Ndaba Gaolathe has said that despite major accolades that Botswana continues to receive internationally with regard to the state of economy, the prospects for the future are imperilled.
Delivering his party Annual Policy Statement on Thursday, Gaolathe indicated that Botswana is in a state of do or die, and that the country’s economy is on a sick bed. With a major concern for poverty, Gaolathe pointed out that almost half of Botswana’s people are ravaged by or are about to sink into poverty. “Our young people have lost the fire to dream about what they could become,” he said.