Within a space of one week, two African states have been warned against disobeying court orders. Courts of law in the jurisdictions of Botswana and South Africa are disobeying orders of the court. Should we be worried about these developments?
While the merits, the circumstances in each of the cases and the implications may vary in detail and gravity, they still point to one thing: disrespect for court decisions. Although we cannot say much about the South African decision, we are however disturbed by the growing tendency of the current administration in Botswana to frustrate the delivery of justice by ignoring decisions of our courts. The arrogance displayed by government in disregarding court orders, reducing them to just an academic exercise is totally unacceptable, to say the least.
In Botswana last week, Justice Key Dingake said: “If the government becomes a law breaker, it breeds contempt for law, it invites every man to become a law unto himself, and ultimately invites anarchy. It is important and in the public interest that government must lead by example in obeying orders issued by the country’s judiciary. Government should stop exerting tension between the judiciary and the executive as they all have the responsibility to ensure that all human rights laws are respected.”
In South Africa, Judge President Dunstan Mlambo said: "Government’s failure to arrest Sudan’s President Omar al-Bashir was inconsistent with the nation’s constitution. The SA gov’t was in contempt of court. Where the rule of law is undermined by the state, it is often done gradually and surreptitiously. We invite the National Prosecuting Authority to investigate if criminal proceedings cannot be proffered against those who disobeyed court orders."
We are very much alive to the fact that Botswana has been commended by different institutions for upholding the rule law over the years. This, despite that we have on numerous occassions witnessed government deliberately refusing to implement orders of the courts. This has resulted in an outcry from judicial officers over the reluctance by government to abide by court orders made against her. This conduct amounts to disrespect for the judiciary by the executive and defeats the delivery of justice. To this end some judges have expressed concern about such reluctance coming from government, which has led to court having to repeatedly make the same decision on matters that should have long been put to rest. At the current we only risk to reverse the gains we have made as a country that respects the rule of law and threaten to turn the judicial process into a mockery. It defies any logic why government is stead festedly refusing to provide Antiretroviral drugs to foreign inmates incarcerated in our prisons when we have the resources to do so, instead of playing hide and seek, and trying to shift the goal posts using flimsy excuses.
Some litigants, among them public sector trade unions are always complaining that government officals more often than not disregard court orders. We never imagined that this issue will be allowed to deteriorate to this level, where lives are placed at risk just because of some attitude of some executives in government.
It is even more disturbing that even as we disrespect decisions of our own courts of law, the current administration has the audacity to claim some moral high ground and shout from roof tops calling for the enforcement of decisions made by other courts elsewhere. It is common knowledge that our government has openly criticised others near and far for disrespecting the rule of law, declaring her that we abhor such conduct. It is an irony of shocking proportions for our government ot be the one to ignore decisions of courts in her own homeland. As the cliche goes, charity begins at home. We should clean our act first before we go out and embarass ourselves claiming to be holier than those countries where disrespect for the rule of law reigns supreme.
We kindly ask the current administration to reconsider the position of disregarding court orders before the international community sees us for what we are.