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Is Khama right on the Independence of our Judiciary?

Ndulamo Anthony Morima

Recently, when officially opening the Judicial Conference in Mahalapye, His Excellency President Lieutenant General Seretse Khama Ian Khama stated that “we are a nation renowned for our peace, stability and tranquility…These precious national tenets … would not have been possible without the checks and balances of an established judicial system, which is respected by Batswana…from the Customary Courts to the Court of Appeal”.

In this article, we consider whether president Khama is right that judicial independence prevails in Botswana. We do so by considering Botswana’s respect for judicial independence in terms of the Constitution and selected case law. For the latter, we use cases that had political implications and were likely to have a bearing on judicial independence.

In addition to stating that the Executive respects the independence of the Judiciary, president Khama stated that Botswana’s respect for judicial independence is demonstrated by its respect for human rights and the rule of law. Further that this is confirmed by the fact that “… our reputation as a constitutional democracy has been one of the reasons for our high ranking internationally in the field of the rule of law…”

President Khama rightly stated that “…the core mandate of the judiciary is to function impartially, without favour or ill will…” Judicial officers, he said, should exercise their mandate “…without agendas or influences from outside affecting their judgements.” The question is: does judicial independence prevail in Botswana?

In terms of the Constitution, judicial independence is entrenched by, among other provisions, the appointment of judges by the President, acting in accordance with the advice of the Judicial Service Commission (JSC) in terms of sections 96(2) and 100(2) for High Court (HC) judges and Court of Appeal (CoA) judges respectively; and security of tenure for judges in terms of sections 97 and 101 for HC judges and CoA judges respectively.

It is, however, submitted that the JSC’s role in the appointment of judges is compromised by the fact that in terms of section 103(1) of the Constitution except for one member of the Law Society nominated by the Law Society, all members of the JSC (i.e. the CJ, President of the CoA, the Attorney General (AG), the Chairman of the Public Service Commission (PSC) and a person of integrity and experience not being a legal practitioner appointed by the President) are presidential appointees and members of the Executive.

In Botswana, unlike in South Africa, neither Parliament nor civil society is represented in the JSC. Consequently, through the JSC, the Executive can ensure that only candidates sympathetic to government are appointed as judges. This view became entrenched when the president declined the advice of the JSC to appoint Gabriel Komboni, Lizo Ngcongco and Gabriel Rwelengera as judges. Recently, the president declined the JSC’s advice to appoint Omphemetse Motumise whose credentials include having been Chairperson of the Law Society of Botswana and Deputy Chairperson of the Independent Electoral Commission (IEC).

It is also worth noting that the independence that the JSC’s involvement seeks to achieve with respect to appointment of judges is negated by the manner in which the CJ and the President of the CoA are appointed. In terms of sections 96(1) and 100(1) of the Constitution, the CJ and the President of the CoA are appointed by the President acting alone.

The President, therefore, has a free hand and may be influenced by such irrelevant considerations as politics in making judicial appointments. To avoid this, we may borrow a leaf from South Africa where the JSC also advices the President in the appointment of the CJ.
Also, the fact that, though a tribunal, appointed in terms of sections 97(3) and 101(3) of the Constitution for HC judges and CoA judges respectively, is involved in investigating whether or not a judge should be removed from office, it is the president alone who, on the tribunal’s advice, removes the judge from office in terms of sections 97(4) and 101(4) of the Constitution for HC judges and CoA judges respectively, is inimical to judicial independence.

Assuming that judicial officers have integrity, the only solace is that, in terms of sections 97(3) (a) and 101(3) (a) of the Constitution, for HC judges and CoA judges respectively, the not less than two other members of the tribunal should be holding or have held high judicial office. But, there can be no guarantee since any person who serves at someone’s pleasure can be easily influenced. Also, there is no mention about the tribunal Chairperson’s qualifications, leaving the president with an unfettered discretion which he can use to appoint any person he can manipulate.    

Therefore, a president who, for some irrational or irrelevant considerations, wants to remove a judge from office may appoint a tribunal to achieve such a purpose. It is incontrovertible that very few such tribunals can have the audacity to make a recommendation contrary to the president’s implied, and sometimes secretly expressed, will to remove a judge. To avoid this, we may once again borrow a leaf from the South African Constitution where a two-thirds resolution by Parliament is required for the removal of a judge.

In Botswana’s legal history four judgments made many question the independence of our judiciary. First was the ruling which upheld section 41(1) of the Constitution which provides that “Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be done in his or her private capacity”.

As a result of the aforesaid section, the late leader of Botswana Movement for Democracy (BMD) and Secretary General of the Umbrella for Democratic Change (UDC), Gomolemo Motswaledi, lost the case in which he challenged President Khama’s powers to suspend him from the Botswana Democratic Party (BDP).

Second was Industrial Court Judge, Tebogo Maruping’s declaration that the 2011 public sector “…strike as it relates to essential service employees is unlawful and unprotected because the strike is in breach of the provisions of section 42(1) (b) (iii) of the Trade Dispute Act(TDA) as read with section 9(1) (b) in that on failure to reach agreement at mediation, the Commissioner of Labour lumped together all the employees and did not take account of the special provisions relating to the essential service employees”.

This decision was later, rightly so in my view, set aside by HC judge, Dr. Oagile Key Dingake. Third was the CoA’s quashing, erroneously so in my view, of Justice Dr. Dingake’s judgment in which he had set aside Justice Maruping’s judgment aforesaid.

Fourth was the HC’s decline to review President Khama’s action to, by presidential decree, postpone the Francis town West bye elections, allegedly in the public interest and in consideration of, among other things, a petition of a large number of voters in Francistown West constituency and the fact that the legal process then pending before the HC and the CoA had not been concluded.  

Recently, however, our courts have demonstrated commitment to jealously guard the independence of the judiciary. In late 2013, the CoA confirmed Justice Rannowane’s judgment that at the time of the submission of the nomination by the BDP’s Ignatius Moswaane, for the Francis town West bye elections, the interim order by Justice Tshepo Motswagole prohibiting Ignatius Moswaane from submitting nomination papers was still operational.

The CoA reasoned that “the concept of the rule of law obligated the IEC to obey the court order issued by Justice Motswagole and accordingly declined to accept nomination papers from Ignatius Moswaane”. Accordingly, the court held that “Court Orders are to be taken at face value and should be respected without debate”.

The Justices stated that “the IEC was legally justified and obliged to respect the said court order by refraining from accepting such nomination papers”.     

On 22nd April 2014 the CoA upheld Justice Dr. Dingake’s ruling and reversed the decision by government to declare teaching, veterinary services, diamond sorting and transport services as essential services. Justice Dr. Dingake’s ruling declared Section 49 of the TDA incompatible with the Constitution and thus invalid. It also declared as invalid Statutory Instrument (SI) No. 57 of 2011, made under Section 49. The appeal to the CoA concerned the extent to which, if at all, Parliament has the power to delegate its constitutionally conferred legislative function to the Executive.

In its judgment the court said “… in the majority of cases the legislative power delegated by Parliament in the interests of good government to ministers or to other administrators or bodies is the power to amend Schedules…It is only in comparatively rare cases that the power to amend substantive sections of an Act is so delegated …”.

This judgment was in line with international best practice since in South Africa, for example, in Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 10 BCLR 1253 (CC), the Constitutional Court held that it was inconsistent with the doctrine of separation of powers for Parliament to delegate its power to amend the laws to the president.

The court held that the decision as to which services or categories of services should be classified as essential services is an important policy matter properly to be debated in Parliament and to be subjected to public scrutiny. “This is more so because, in the case of the teachers and other public servants…, the right to strike was only fairly recently conferred upon them by an Act of Parliament, after full debate” the court held. The court held that to allow the right to strike to be arbitrarily cancelled by a member of the Executive would not pass constitutional muster.

Recently, the CoA upheld the HC’s ruling against the president in a case in which the president wanted the Parliamentary Standing Orders that provided for voting by secret ballot for the elections of Speaker and Deputy Speaker of Parliament and nominations for the Vice President to be set aside as unconstitutional. Many had concluded that the courts will rule in the president’s favour since the case was politically sensitive to the extent it could have a bearing on who becomes Vice President.

In view of the aforegoing, it is incontrovertible that, its deficiencies notwithstanding, the Constitution entrenches judicial independence. In terms of case law, it can also be concluded that our courts are largely independent. In my view, on a literal interpretation of section 41(1) of the Constitution, the decision in the Gomolemo Motswaledi case is not so irrational that no reasonable judge would have made it. However, the same cannot be said about the decision in the Francis town West bye election case regarding the non-reviewability of the president’s decree.

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Export Processing Zones: How to Get SEZA to Sizzle

23rd September 2020
Export Processing Zone (EPZ) factory in Kenya

In 2005, the Business & Economic Advisory Council (BEAC) pitched the idea of the establishment of Special Economic Zones (SEZs) to the Mogae Administration.

It took five years before the SEZ policy was formulated, another five years before the relevant law was enacted, and a full three years before the Special Economic Zones Authority (SEZA) became operational.

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Egypt Bagged Again

23rd September 2020

… courtesy of infiltration stratagem by Jehovah-Enlil’s clan

With the passing of Joshua’s generation, General Atiku, the promised peace and prosperity of a land flowing with milk and honey disappeared, giving way to chaos and confusion.

Maybe Joshua himself was to blame for this shambolic state of affairs. He had failed to mentor a successor in the manner Moses had mentored him. He had left the nation without a central government or a human head of state but as a confederacy of twelve independent tribes without any unifying force except their Anunnaki gods.

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23rd September 2020

If I say the word ‘robot’ to you,  I can guess what would immediately spring to mind –  a cute little Android or animal-like creature with human or pet animal characteristics and a ‘heart’, that is to say to say a battery, of gold, the sort we’ve all seen in various movies and  tv shows.  Think R2D2 or 3CPO in Star Wars, Wall-E in the movie of the same name,  Sonny in I Robot, loveable rogue Bender in Futurama,  Johnny 5 in Short Circuit…

Of course there are the evil ones too, the sort that want to rise up and eliminate us  inferior humans – Roy Batty in Blade Runner, Schwarzenegger’s T-800 in The Terminator,  Box in Logan’s Run,  Police robots in Elysium and  Otomo in Robocop.

And that’s to name but a few.  As a general rule of thumb, the closer the robot is to human form, the more dangerous it is and of course the ultimate threat in any Sci-Fi movie is that the robots will turn the tables and become the masters, not the mechanical slaves.  And whilst we are in reality a long way from robotic domination, there are an increasing number of examples of  robotics in the workplace.

ROBOT BLOODHOUNDS Sometimes by the time that one of us smells something the damage has already begun – the smell of burning rubber or even worse, the smell of deadly gas. Thank goodness for a robot capable of quickly detecting and analyzing a smell from our very own footprint.

A*Library Bot The A*Star (Singapore) developed library bot which when books are equipped with RFID location chips, can scan shelves quickly seeking out-of-place titles.  It manoeuvres with ease around corners, enhances the sorting and searching of books, and can self-navigate the library facility during non-open hours.

DRUG-COMPOUNDING ROBOT Automated medicine distribution system, connected to the hospital prescription system. It’s goal? To manipulate a large variety of objects (i.e.: drug vials, syringes, and IV bags) normally used in the manual process of drugs compounding to facilitate stronger standardisation, create higher levels of patient safety, and lower the risk of hospital staff exposed to toxic substances.

AUTOMOTIVE INDUSTRY ROBOTS Applications include screw-driving, assembling, painting, trimming/cutting, pouring hazardous substances, labelling, welding, handling, quality control applications as well as tasks that require extreme precision,

AGRICULTURAL ROBOTS Ecrobotix, a Swiss technology firm has a solar-controlled ‘bot that not only can identify weeds but thereafter can treat them. Naio Technologies based in southwestern France has developed a robot with the ability to weed, hoe, and assist during harvesting. Energid Technologies has developed a citrus picking system that retrieves one piece of fruit every 2-3 seconds and Spain-based Agrobot has taken the treachery out of strawberry picking. Meanwhile, Blue River Technology has developed the LettuceBot2 that attaches itself to a tractor to thin out lettuce fields as well as prevent herbicide-resistant weeds. And that’s only scratching the finely-tilled soil.

INDUSTRIAL FLOOR SCRUBBERS The Global Automatic Floor Scrubber Machine boasts a 1.6HP motor that offers 113″ water lift, 180 RPM and a coverage rate of 17,000 sq. ft. per hour

These examples all come from the aptly-named site    because while these functions are labour-saving and ripe for automation, the increasing use of artificial intelligence in the workplace will undoubtedly lead to increasing reliance on machines and a resulting swathe of human redundancies in a broad spectrum of industries and services.

This process has been greatly boosted by the global pandemic due to a combination of a workforce on furlough, whether by decree or by choice, and the obvious advantages of using virus-free machines – I don’t think computer viruses count!  For example, it was suggested recently that their use might have a beneficial effect in care homes for the elderly, solving short staffing issues and cheering up the old folks with the novelty of having their tea, coffee and medicines delivered by glorified model cars.  It’s a theory, at any rate.

Already, customers at the South-Korean  fast-food chain No Brand Burger can avoid any interaction with a human server during the pandemic.  The chain is using robots to take orders, prepare food and bring meals out to diners.  Customers order and pay via touchscreen, then their request is sent to the kitchen where a cooking machine heats up the buns and patties. When it’s ready, a robot ‘waiter’ brings out their takeout bag.   

‘This is the first time I’ve actually seen such robots, so they are really amazing and fun,’ Shin Hyun Soo, an office worker at No Brand in Seoul for the first time, told the AP. 

Human workers add toppings to the burgers and wrap them up in takeout bags before passing them over to yellow-and-black serving robots, which have been compared to Minions. 

Also in Korea, the Italian restaurant chain Mad for Garlic is using serving robots even for sit-down customers. Using 3D space mapping and other technology, the electronic ‘waiter,’ known as Aglio Kim, navigates between tables with up to five orders.  Mad for Garlic manager Lee Young-ho said kids especially like the robots, which can carry up to 66lbs in their trays.

These catering robots look nothing like their human counterparts – in fact they are nothing more than glorified food trolleys so using our thumb rule from the movies, mankind is safe from imminent takeover but clearly  Korean hospitality sector workers’ jobs are not.

And right there is the dichotomy – replacement by stealth.  Remote-controlled robotic waiters and waitresses don’t need to be paid, they don’t go on strike and they don’t spread disease so it’s a sure bet their army is already on the march.

But there may be more redundancies on the way as well.  Have you noticed how AI designers have an inability to use words of more than one syllable?  So ‘robot’ has become ‘bot’ and ‘android’ simply ‘droid?  Well, guys, if you continue to build machines ultimately smarter than yourselves you ‘rons  may find yourself surplus to requirements too – that’s ‘moron’ to us polysyllabic humans”!

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