A TRIBUTE TO JUSTICE ANTONIO SCALIA OF THE U.S. SUPREME COURT
Opinions
The passing on of Justice Scalia of the US Supreme Court who was renowned for his conservatism affords one an opportunity of paying tribute to his life at the bench and also to interrogate the philosophy of law that informed his decisions. On Saturday the 13th of February, 2016, the US judiciary, and the entire, nation lost one of the most highly respected justices of the Supreme Court, regarded by many as a fierce intellectual force of the right wing in the Supreme Court.
His departure and consequent replacement has sparked fierce debate amongst the conservatives and liberals in that country.
The conservatives have called upon President Obama to refrain from nominating a new justice to replace Justice Scalia for fear that he will replace him with a liberal justice who may tilt the balance of the US Supreme Court jurisprudence – on major constitutional issues – to the left. These forces argue that the tradition in the US is that a lame duck President – a president who is on his way out, should not nominate a new justice in the dying days of his tenure. However, President Obama is adamant that he intends to fulfill his constitutional obligations. With the departure of Justice Scalia, the US Supreme Court is evenly balanced in terms of ideological outlook.
Justice Anthony Kennedy is considered a vacillating justice, who often tours the middle path, and therefore unpredictable. His record shows that in a majority of cases, he votes with the right although on occasions he has voted with the left. If history is anything to go by, the Court is set to continue being divided on major constitutional issues touching on the rights of LGTBQ’s, abortion, affirmative action and immigration laws. Justice Antonio Scalia was born in 1936, in Trenton, New Jersey. He was the only child of Mr. and Mrs. Scalia.
His father emigrated from Sicily as a teenager to the United States of America. In 1953, he enrolled at George Town University in Washington DC where he graduated with a bachelor’s degree in History. He is a Harvardian – having graduated at the prestigious Harvard Law School. In 1967, he took up an academic post as Professor of Law at the University of Virginia Law School.
Justice Scalia has also taught law at the University of Chicago Law School. He was appointed to the Supreme Court in 1986 by President Reagan and soon thereafter earned a reputation as a constitutional textualist who believed that the duty of the court in interpreting the Constitution is to give effect to the intention of its framers. This judicial philosophy was called originalism. It is an interpretation method that seeks to hold the Constitution hostage to those departed.
This method has no traction with modern constitutional lawyers. This brought him in confrontation with liberals who believed that the Constitution is a living and breathing organism that allows the courts to interpret it expansively and in a manner that is consistent with the contemporary values of the society. Justice Scalia believed that an expansive and generous interpretation allowed judges the opportunity to legislate and often to be the overlords of the Constitution.
He took the view that to regard the Constitution as a living document allowed courts to facilitate change, which is not their duty. He abhorred judicial activism with a passion believing in the fairy tale that judges do not make law, when in actual fact judges are the best lawmakers. He was a firm believer in the doctrine of stare decisis – which meant that the principles derived from previous decisions formed a body of controlling law for future decisions.
He derided liberals for striving for ‘justice’ in a case, in the light of their own philosophies and socio economic values and in the process according settled legal principles little or no weight. According to Justice Scalia, judicial power should never be exercised for the purposes of giving effect to the will of the judge, but rather that of the legislature, the primary lawmaker.
It is this approach that defined Justice Scalia as a conservative – some would say an ultra-conservative. It seems to me that judges, like other mortals, need to view complex constitutional issues with a broader compass and a more sharper microscopic lens – and of course with some measure of humility – the conviction that one human mind can embrace but a tiny fraction of all judicial wisdom and knowledge. Conservative to the core, he occasionally veered to the left.
He surprised many members of the legal fraternity when he voted to uphold free speech in the Texas flag burning case. He acknowledged the discomfort in seeing the flag burnt, but could not fathom those who wanted to punish the flag burners. He recognized that the ability to speak one’s mind, to challenge authority without fear of recrimination by the State is the essential distinction between life in a free country and in a dictatorship.
He understood that although the flag was a fundamental symbol of American nationhood, a proper constitutional reasoning requires the courts to make decisions they do not necessarily like, but that must be taken because they are right – and that to this extent, it is imperative that the flag protects those who hold it in contempt. Justice Scalia weighed in his conservative views in the case of Bush v Gove and literally helped hand over the 2000 election victory to President George Bush. Many constitutional scholars have criticized the decision as wrongly decided.
In the dissenting judgment of Justice Stevens, with whom Justice Ginsburg and Justice Breyer agreed with, the majority decision, in essence discredited the independence and impartiality of the judiciary. He concluded that: “Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
In June 2015, when the Supreme Court upheld the Obama care, Scalia, was scathing against the majority decision which allowed the federal government to provide nationwide tax subsidies to help Americans buy health insurance, accusing the majority of twisting the meaning of plain words, saying in the course of his dissent: “the court’s decisions reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct supposed flaw in statutory machinery.
That philosophy ignores the American people’s decision to give Congress all legislative powers enumerated in the Constitution.” Justice Scalia was equally scathing in his dissent in the 2015 landmark case in which the Supreme Court upheld the right to same sex marriage by a majority of one. He came hard on the majority decision, writing that the ruling was “at odds not only with the Constitution, but with the principles upon which our nation was built”.
Over the many years of his extra-ordinary judicial career, Justice Scalia was the very epitome of conservatism. Some traces of this can be discerned from his upbringing, for the truth is that no judge ascends to the bench as an ideological virgin, sometimes personal and professional experiences may influence the colour and texture of one’s jurisprudence.
The tragedy though of conservative/liberal contestation over what the task of judging entails is often characterized by self-serving criticism; the right accusing the left of judicial activism – shaping the law in accordance with the judges socio-economic views or philosophy; whilst history would testify that conservative elements, just like liberals, may occasion violence to plain words to give effect to their world outlook.
The truth of the matter though is that in each of us, judges, there is a stream of tendency; call it philosophy for lack of better word, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other ordinary mortals. All their life experiences which they cannot recognize or name have some influence on how they tackle jurisprudential issues of our time – all these constitutes, as it has often been said, “the total push and pressure of the cosmos,” which, when reasons are nicely balanced, must determine where choice shall fall. It is incontestable that our background constitutes a critical context to our thinking process – for we may try to see things as objectively as we may wish to, but the bottom line is that we can never process a problem, with any mind other than our own.
It can hardly be contested that in the life of the mind, there is a tendency towards the reproduction of the essence of the self. Liberals do not consider legal interpretation to be a mechanical enterprise. They consider that the ultimate objective of law should be the welfare of society. Perhaps the most significant advance in the modern science of law is the change from analytical to the functional attitude.
In the enterprise of judging, justice must be the overarching objective that must direct our reasoning process. In conclusion and in reflecting on the life of Justice Scalia and his philosophy of law and the debates it has generated over the years, it seems to me that logic, history, values, and social welfare are critical considerations in judicial reasoning.
As to which of the above considerations should predominate in any given case, must depend largely upon the judges outlook, knowledge of the law (for the level of jurisprudential output is a product of knowledge borne of intense reading and study) and his/her commitment to justice. In conclusion, whilst Justice Scalia, and many in his ideological camp subscribe to the view that judges do not make law; the truth is that judges make law in the course of interpretation. A provision in a Statute or Constitution may appear clear and straightforward – and until construed, is not really law, it is perhaps “ostensible” law.
There is therefore merit, philosophically, in the view that, real law is not found anywhere except in a judgment of the court. In that view, even past decisions are not law because the courts may overrule them. Men and women go about their business from day to day, and govern their conduct by an ignis fatuus (something deluding or misleading). The rules to which they yield obedience are in many respects “ostensible” law; for law never is, but is always about to be – unless construed is not real law.
News
The case for Botswana to ratify the ACDEG
The Ibrahim Index of African Governance (IIAG) is the most comprehensive dataset measuring African governance performance through a wide range of 81 indicators under the categories of Security & Rule of law, Participation, Rights & Inclusion, Foundations of Economic Opportunity, and Human Development. It employs scores, expressed out of 100, which quantify a country’s performance for each governance measure and ranks, out of 54, in relation to the 54 African countries.
The 2022 IIAG Overall Governance score is 68.1 and ranks Botswana at number 5 in Africa. In 2019 Botswana was ranked 2nd with an overall score of 73.3. That is a sharp decline. The best-performing countries are Mauritius, Seychelles, Tunisia, and Cabo Verde, in that order. A glance at the categories shows that Botswana is in third place in Africa on the Security and Rule of law; ninth in the Participation, Rights & Inclusion Category – indicating a shrinking participatory environment; eighth for Foundations of Economic Opportunity category; and fifth in the Human Development category.
The 2022 IIAG comes to a sweeping conclusion: Governments are less accountable and transparent in 2021 than at any time over the last ten years; Higher GDP does not necessarily indicate better governance; rule of law has weakened in the last five years; Democratic backsliding in Africa has accelerated since 2018; Major restrictions on freedom of association and assembly since 2012. Botswana is no exception to these conclusions. In fact, a look at the 10-year trend shows a major challenge. While Botswana remains in the top 5 of the best-performing countries in Africa, there are signs of decline, especially in the categories of Human Development and Security & Rule of law.
I start with this picture to show that Botswana is no longer the poster child for democracy, good governance, and commitment to the rule of law that it once was. In fact, to use the term used in the IIAG, Botswana is experiencing a “democratic backsliding.”
The 2021 Transparency International Corruption Perception Index (CPI) had Botswana at 55/ 100, the lowest ever score recorded by Botswana dethroning Botswana as Africa’s least corrupt country to a distant third place, where it was in 2019 with a CPI of 61/100. (A score closer to zero denotes the worst corrupt and a score closer to 100 indicates the least corrupt country). The concern here is that while other African states are advancing in their transparency and accountability indexes, Botswana is backsliding.
The Transitional National Development Plan lists participatory democracy, the rule of law, transparency, and accountability, as key “deliverables,” if you may call those deliverables. If indeed Botswana is committed to these principles, she must ratify the African Charter on Democracy Elections and Governance (ACDEG).
The African Charter on Democracy Elections and Governance is the African Union’s principal policy document for advancing democratic governance in African Union member states. The ACDEG embodies the continent’s commitment to a democratic agenda and set the standards upon which countries agreed to be held accountable. The Charter was adopted in 2007 and came into force a decade ago, in 2012.
Article 2 of the Charter details its objectives among others as to a) Promote adherence, by each State Party, to the universal values and principles of democracy and respect for human rights; b) Promote and protect the independence of the judiciary; c) Promote the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs; d) Promote gender balance and equality in the governance and development processes.
The Charter emphasizes certain principles through which member states must uphold: Citizen Participation, Accountable Institutions, Respect for Human Rights, Adherence to the principles of the Rule of Law, Respect for the supremacy of the constitution and constitutional order, Entrenchment of democratic Principles, Separation of Powers, Respect for the Judiciary, Independence and impartiality of electoral bodies, best practice in the management of elections. These are among the top issues that Batswana have been calling for, that they be entrenched in the new Constitution.
The ACDEG is a revolutionary document. Article 3 of the ACDEG, sets guidance on the principles that must guide the implementation of the Charter among them: Effective participation of citizens in democratic and development processes and in the governance of public affairs; Promotion of a system of government that is representative; Holding of regular, transparent, free and fair elections; Separation of powers; Promotion of gender equality in public and private institutions and others.
Batswana have been calling for laws that make it mandatory for citizen participation in public affairs, more so, such calls have been amplified in the just-ended “consultative process” into the review of the Constitution of Botswana. Many scholars, academics, and Batswana, in general, have consistently made calls for a constitution that provides for clear separation of powers to prevent concentration of power in one branch, in Botswana’s case, the Executive, and provide for effective checks and balances. Other countries, like Kenya, have laws that promote gender equality in public and private institutions inscribed in their constitutions. The ACDEG could be a useful advocacy tool for the promotion of gender equality.
Perhaps more relevant to Botswana’s situation now is Article 10 of the Charter. Given how the constitutional review process unfolded, the numerous procedural mistakes and omissions, the lack of genuine consultations, the Charter principles could have provided a direction, if Botswana was party to the Charter. “State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained, if need be, through referendum,” reads part of Article 10, giving clear clarity, that the Constitution belong to the people.
With the African Charter on Democracy Elections and Governance in hand, ratified, and also given the many shortfalls in the current constitution, Batswana can have a tool in hand, not only to hold the government accountable but also a tool for measuring aspirations and shortfalls of our governance institutional framework.
Botswana has not signed, nor has it acceded or ratified the ACDEG. The time to ratify the ACDEG is now. Our Movement, Motheo O Mosha Society, with support from the Democracy Works Foundation and The Charter Project Africa, will run a campaign to promote, popularise and advocate for the ratification of the Charter (#RatifytheCharter Campaign). The initiative is co-founded by the European Union. The Campaign is implemented with the support of our sister organizations: Global Shapers Community – Gaborone Hub, #FamilyMeetingBW, Botswana Center for Public Integrity, Black Roots Organization, Economic Development Forum, Molao-Matters, WoTech Foundation, University of Botswana Political Science Society, Young Minds Africa and Branding Akosua.
Ratifying the Charter would reaffirm Botswana’s commitment to upholding strong democratic values, and respect for constitutionalism, and promote the rule of law and political accountability. Join us in calling the Government of Botswana to #RatifyTheCharter.
*Morena MONGANJA is the Chairperson of Motheo O Mosha society; a grassroots movement advocating for a new Constitution for Botswana. Contact: socialcontractbw@gmail.com or WhatsApp 77 469 362.
Opinions
The Taiwan Question: China ramps up military exercises to rebuff US provocations
US House Speaker Nancy Pelosis visit to Taiwan has violated the One-China policy, and caused the escalation of tensions across the Taiwan Strait. Experts and political observers across the spectra agree that Pelosis actions and subsequent pronouncements by US President Joe Biden gave impetus to an already simmering tension in the Taiwan Strait, provoking China to strengthen its legitimate hold on the Taiwan Strait waters, which the US and Taiwan deem as international waters.
Pelosis visit to Chinas Taiwan region has been heavily criticised across the globe, with China arguing that this is a serious violation of the one-China principle and the provisions of the three China-US Joint Communiqus. In response to this reckless move which seriously undermined China’s sovereignty, and interfered in China’s internal affairs, the expectation is for China to give a firm response. Pelosi visit violated the commitments made by the U.S. side, and seriously jeopardized peace and stability across the Taiwan Strait.
To give context to Chinas position over Taiwan region, the history behind gives us perspective. It is also important to note that the history between China and Taiwan is well documented and the US has always recognized it.
The Peoples Republic of China recognises Taiwan as its territory. It has always been the case even before the Nationalist Republic of China government fled to the previously Japanese-ruled Island after losing the civil war on the mainland in 1949. According to literature that threat was contained for decades first with a military alliance between the US and the ROC on Taiwan, and after Washington switched diplomatic recognition to the PRC in 1979 by the US One China policy, which acknowledges Beijings position that Taiwan is part of One China. Effectively, Taiwans administration was transferred to the Republic of China from Japan after the Second World War in 1945, along with the split between the Peoples Republic of China (PRC) and the Republic of China (ROC) as a consequence of the Chinese Civil War. Disregarding this history, as the US is attempting to do, will surely initiate some defence reaction on the side of China to affirm its sovereignty.
However, this history was undermined since Taiwan claimed to democratise in the 1990s and China has grown ever more belligerent. Furthermore, it is well documented that the Biden administration, following the Trump presidency, has made subtle changes in the way it deals with Taipei, such as loosening restrictions on US officials meeting Taiwanese officials this should make China uneasy. And while the White House continues to say it does not support Taiwanese independence, Bidens words and actions are parallel to this pledge because he has warned China that the US would intervene militarily if China attacked Taiwan another statement that has provoked China.
Pelosi, in her private space, would know that her actions amount to provocation of China. This act of aggression by the USA seriously undermines the virtues of sovereignty and territorial integrity which has a huge potential to destabilize not only the Taiwan Strait but the whole of the Asia- Pacific region. The Americans know very well that their provocative behavior is deliberately invoking the spirit of separatism masqueraded as Taiwan independence. The US is misled to think that by supporting separatism of Taiwan from China that would give them an edge over China in a geopolitics. This is what one Chinese diplomat said this week: The critical point is if every country put their One-China policy into practice with sincerity, with no compromise, is going to guarantee the peace and stability across the Taiwan Strait. Therefore, it was in the wake of US House speaker Nancy Pelosis visit to Taiwan, that China, in a natural response revealed plans for unprecedented military exercises near the island, prompting fears of a crisis in the Taiwan Strait and the entire Asia-Pacific region. The world community must promote and foster peace, this may be achieved when international laws are respected. It may also happen when nations respect the sovereignty of another. China may be in a better space because it is well capacitated to stake its territorial integrity, what about a small nation, if this happens to it?
As to why military exercises by Beijing; it is an expected response because China was provoked by the actions of Pelosi. To fortify this position, Chinese President, Xi signed a legal basis for Chinas Peoples Liberation Army to safeguard Chinas national sovereignty, security and development interests. The legal basis will also allow military missions around disaster relief, humanitarian aid and peacekeeping. In addition the legal changes would allow troops to prevent spillover effects of regional instabilities from affecting China, secure vital transport routes for strategic materials like oil, or safeguard Chinas overseas investments, projects and personnel. It then follows that President Xis administration cannot afford to look weak under a US provocation. President Xi must protector Chinas sovereignty and territorial integrity, of which Taiwan is a central part. Beijing is very clear on One-China Policy, and expects all world players to recognize and respect it.
The Peoples Liberation Army has made it clear that it has firepower that covers all of Taiwan, and it can strike wherever it wants. This sentiments have been attributed to Zhang Junshe, a researcher at the PLA Navy Research Institute. Zheng further said, We got really close to Taiwan. We encircled Taiwan. And we demonstrated that we can effectively stop intervention by foreign forces. This is a strong reaction from China to warn the US against provocation and violation of the One-China Policy.
Beijings military exercises will certainly shake Taiwans confidence in the sources of its economic and political survival. The potential for an effective blockade threatens the air and shipping routes that support Taiwans central role in global technology supply chains. Should a humanitarian situation arise in Taiwan, the blame would squarely be on the US.
As Chinas military exercises along the Taiwan Strait progress and grow, it remains that the decision by Nancy Pelosi to visit Chinas Taiwan region gravely undermined peace and stability across the Taiwan Strait, and sent a wrong signal to Taiwan independence separatist forces. This then speaks to international conventions, as the UN Secretary-General Antnio Guterres explicitly stressed that the UN remains committed to the UN General Assembly Resolution 2758. The centerpiece is the one-China principle, namely, there is but one China in the world, the government of the Peoples Republic of China is the sole legal government representing the whole of China, and Taiwan is a part of China. It must be noted that the US and the US-led NATO countries have selectively applied international law, this has been going on unabated. There is a plethora of actions that have collapsed several states after they were attacked under the pretext of the so-called possession of weapons of mass destruction illuminating them as threats – and sometimes even without any valid reason. to blatantly launch military strikes and even unleash wars on sovereign countrie
Opinions
Internal party-democracy under pressure
British novelist, W. Somerset Maugham once opined: If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.
The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties ruling and opposition.
As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.
We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.
Former President, Festus Mogae once stated that Botswanas democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.
Although many may not publicly care to admit, Mogaes assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values.This has been happening over the years now, and the situation is getting worse by the day.
Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in theBulela Ditswedispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.
Bulela Ditswewas an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.
Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.
We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties ruling and opposition have embraced this position and believe democracy is the hindrance to their political ambitions.
These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.
Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.
The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.