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BOFEPUSU rebukes Ian Kirby

Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPPPUSU) has repudiated the Judge President of the Court of Appeal (CoA), Justice Ian Kirby for “provocative” remarks he uttered during the opening of the Court of Appeal session, beginning of the year.   


Kirby had in his statement castigated unions and opposition parties against attacking him for cases that they have lost against the government and labelled the judges presiding over those matters and those who made the judgements as “executive minded”.
In a long strong worded response to Justice Kirby, BOFEPPPUSU cautioned that if Judges (like Kirby) are caught expressing their personal opinions in Court, they will subsequently be criticized and ostracized. However, the union federation pointed out that if they remain silent, then they will survive the wrath.  


BOFEPPPUSU Deputy Secretary General, Ketlhalefile Motshegwa, said “in his vitriolic attack on the unions and opposition parties (because it is nigh impossible to attack the ruling Botswana Democratic Party (BDP), Justice Kirby did not only attack unions and opposition parties, but his young colleagues in the lower Courts, presumably, the High Court.”


Kirby, when marking the opening of the Court of Appeal session this month uttered that, “the term, Executive–minded” is often used by parties, Unions or interest groups who have been unsuccessful in litigating a case against government, to describe the Judge who wrote their judgment.”


Kirby also blatantly stated that in Botswana there is no real separation of power between the Executive and the legislature while adding that the public service is led by the President and his Cabinet Ministers, who are all also full members of Parliament.


The Judge President also pointed out that “it is perhaps because of this need for stability and certainty that usually older and more seasoned individuals are appointed to the Court of Appeal bench. We have all been young and progressive Judges once, eager to leave our mark in the law reports with innovative and ground-breaking judgments, and to be remembered in a sense, for having in one way or another made or changed some aspect of the law.”


However, Motshegwa is alarmed by Kirby’s utterances. He in fact expressed that BOFEPPPUSU resolved not to let Kirby’s unprovoked vitriolic attack on the unions go unchallenged. He said they have also observed time without number that Justice Kirby is fond of either attacking unions and other interest groups in our society or making orbiter decisions on matters that he knows he will not be able to sit on or are still pending at the High Court; or when a statutory notice is issued against Attorney General as in the case of President Khama versus Omphemetse Motumise and Law Society of Botswana matter.


Motshegwa raised concern that Kirby’s remarks may affect the outcome of some cases, “we know that currently there are cases still to be heard by the Court of Appeal, which cases hinge on judicial independence and separation of power doctrines.  Such cases include the Law Society (on behalf of Motumise) versus President Khama, four suspended Judges versus Khama, Outsa Mokone versus State and Manual Workers Union versus Khama.”


He added that it is therefore in light of the above cases, save for Mokone case, that Justice Kirby will not sit to propagate the executive viewpoint. The union leader highlighted that it has become habitual that the remaining Justices of Appeal either concur with Kirby’s decisions or will make decisions on the basis of the commands contained in Kirby’s speeches or Kirby’s orbiter dicta statements.


On separation of powers Motshegwa asserted that in future, owing to his public opinion, they want Judge President Kirby not to preside over their cases which deal with separation of powers, judicial independence and other public interest matters because “he already has an opinion and we hope his opinion was not also a directive to other Court of Appeal Judges to follow suit”.


He added that, “We are witnessing a situation where our Court of Appeal Judges always concur with Judge President in public interest matters.  This is an indication that our Court of Appeal practices excessive judiciary timidity.” “Justice Kirby is wrong to say in Botswana there is no separation of power,” the union leader further said.


He explained that in Botswana like in America or South Africa, there is the Judiciary, Legislature and Executive and that in South Africa and Botswana, unlike in America, Ministers are members of the National Assembly. “They (Ministers) are appointed amongst the elected 400 members of the South African Legislature by the President.  In South Africa like in Botswana the President and Minister of Public Enterprises are the head of Public Service,” Motshegwa contended against Kirby’s statement. “Our Court of Appeal seems to have regressed since it was localized because the citizen Judges seem to be all conservative and pro-Establishment,” he further quipped.  


In Botswana, the BOFEPPPUSU DSG said, since the ascendancy of Khama to the Presidency of the Republic, the Court of Appeal is practicing excessive judicial timidity and its executive-mindedness is worsening by the day. He highlighted the fact that the Judicial Service Commission is made up of; the Chief Justice, Justice Maruping Dibotelo, President of the Court of Appeal, Justice Kirby, the Attorney General, Dr Athaliah Molokomme, the Chairman of Public Service Commission, a member of the Law Society nominated by the Law Society and a person who is not a lawyer, and all are appointed by the President except the Law Society of Botswana representative.


The BOFEPUSU DSG said in terms of Section 5(1), 96(1), 100(1) and 109(1) of the Constitution of Botswana, the President appoints his political gate keepers to the positions of Attorney General, Chief Justice, The President of Court of Appeal (the highest court), and the Chairman of Public Service Commission to the JSC to protect his interests and those of the Executive.  


He added that “the Chief Justice empanels Judges who hear or sit in matters that involve the President.  The President of Court of Appeal decides who hears matters of public interests which involve the President.  The current President of Court of Appeal has a long history of association with the Khama family.  He also presides over matters that are brought against President Khama.”


According to Motshegwa, tendencies of empanelling the bench with the usual Judges whose decisions are predictable whilst sidelining others speaks volumes of the rot in the Judiciary of Botswana. Motshegwa further emphasized that the struggle to fight for the welfare of workers in Botswana will not be deterred by excessive judicial timorous officers.


He continued: “we will die in the trenches fighting for the rights of workers and for generations yet unborn. Everything has its own timeline. A time will come when we will call audit of judicial competence to deal with judicial packing by Khama.” Meanwhile on his part Law Society of Botswana (LSB) Chairperson, Kgalalelo Monthe told this publication separately that the Society was “uncomfortable” with Kirby’s statement during the opening of the Court of Appeal session.


“You know he even spoke about this while some matters are still to be presided over by the Court of Appeal itself,” Monthe complained. According to Monthe, some of the matters to be decided by the Court of Appeal include the one involving the separation of power, which Kirby has already touched on.


“The separation of power matter is still before the courts and one cannot dwell into the details of it like the Judge President did in his statement.” Monthe further noted that, “You see, the duty of the Judge is to interpret the law. They state what the law says. And as to consequences, it is for other arms of government to see what to do.” He said Kirby was also sounding prescriptive to other Judges when he stated “his opinion” and said he hopes “other Judges agree” with him.

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