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Judges: Servants of Justice or civil servants?

Recent withdrawals of signatures by some Judges who had petitioned and sought for the impeachment of the Chief Justice has raised fresh debate on the extent of the independence of the country’s judiciary.


The withdrawals of signatures was made after four Judges, who also signed the petition were interdicted from Office by the state President, Lieutenant General Seretse Khama Ian Khama for accepting housing allowances which they were not entitled to.


As the debate rages on through the local media platforms including social media networks, the WeekendPost took a look at a paper written by a Judge of the South African Supreme court on a similar matter.


In his paper titled, Judges: Servants of Justice or Civil Servants, Malcolm Wallis discusses the importance of judicial service and separation of powers.


According Wallis, the judicial service is not in the sense of employment, that is, the judges are not employees. As members of the judiciary, he says, they exercise the sovereign judicial power of the state. They are holders of public offices in the same way as the Cabinet Ministers and members of the legislature (Parliament).


“When it is said in a democracy as ours, the executive, the legislature and the judiciary constitute the three pillars of the state, what is intended to be convened is that the three essential functions of the state are entrusted to the three organs of the state and each one of them in turn represents the authority of the state. Those who exercise the state power are the Ministers, the legislature and the Judges,” Wallis explained.


Wallis insists that although Judges must be paid from public monies, they are not civil servants because civil servants are part of the Executive, whilst Judges by definition are independent of the Executive.


“The starting point is a clear understanding that Judges are not civil servants. They are not employees. They have a constitutional responsibility to exercise the judicial authority in our democracy without fear or favour….If Judges were civil servants it will affect the functions of the Judicial Service Commission in making judicial appointments and the working of the courts themselves,” Wallis further explained before adding that the notion “that judges are simply a special class of civil servants may well have hold on the public imagination.”


Although Wallis was discussing the South African state of affairs, matters close to home is the current debate over the proper role of the judiciary and the reorganisation of the judiciary under the office of the Chief Justice. The main question he was answering was that if the Judges are not civil servants, then who is their employer?


He says the only possibility seems to be that in some shape or form the judge is an employee of the state.


“But that raises deeply troubling implications for the concept of judicial independence and the doctrine of the separation of powers. Employees are accountable to their employer. But Judges are supposed to hold the balance between the state and the citizen. They are the guardians of people’s rights. If they are to be accountable to the government, wherein does their independence lie? Are they not then simply civil servants, perhaps with a role of special importance to play, but civil servants nonetheless?” he pointed out.


If judges are civil servants, Wallis says that has undoubted consequences for judicial independence because of their inherent nature of employment. His contention was that the paradigm of an employment contract contains an authority structure at its heart because in return for the payments of wages, the employer bargains for the right to direct the workforce to perform in the most productive way and the employee consents to obey these instructions and so enters into a relationship of subordination.


He goes on to point out that the employer uses both discipline and incentives to enforce obedience and subordination.


“The employer creates a governance structure comprising managerial direction, hierarchies of authority, internal rules of the organisation that allocate power and responsibilities, monitoring devices and techniques for monitoring and policing and disciplining of behaviour. The structure appears as an authoritarian regime that subordinates the employee,” he reiterated.


Wallis argument is that if judges are civil servants, then the above statement is true to them although the mechanisms through which they are subordinated may be subtler and less obvious than in the paradigm case.


“This distinction between the Judges and the members of the other services has to be kept constantly in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice,” he further stated.


He maintains that those who are in want cannot be free as “self reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary and no price is too heavy to secure it. To keep judges in want of essential accoutrements and thus to impede in the proper discharge of their duties is to impair and whittle away justice itself.”


The matter comes at a time when the Law Society of Botswana (LSB) is suing the State President and the Judicial Service Commission over the refusal to appoint a local Attorney as a Judge of the High court following recommendations by commission.


The LSB maintains that the JSC failed to carry out its duty to protect and promote the judicial independence of judges whose appointment and discipline was subjected to political manipulation when the President refused to appoint Omphemetse Motumise and instead appointed a twin brother to one of his cabinet members.

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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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