As with every year, the Law Society of Botswana is very grateful for this opportunity to share with you, as fellow stakeholders in the administration of justice, its thoughts on the state of our nation in relation to the law and justice.
The Mandate of the Law Society of Botswana
It always makes good sense when one speaks on the state of law and the judiciary to first deal with the mandate of the Law Society. This sets the tone and ensures that all misconceptions that prevail or may arise are adequately addressed upfront. The mandate of the Society is primarily, the Regulatory aspect. There is however another aspect and that is that a Law Society is a guardian of the Rule of Law in any society. Not only because of the Conventions, Protocols and memberships of Bar Associations but simply because a legal practitioner takes oath to be an officer of the court and therefore protect or ensure that justice is paramount.
The Regulatory mandate is in large measure guided by the Legal Practitioners Act (LPA).Whilst the Society has managed over the years to ensure that the legal profession operates fairly well and within acceptable bounds, this has not been without difficulty. The LPA was enacted in 1996 and has not undergone much amendment. As would be expected, it has therefore over the years been found wanting in some respects as it fails to keep up with the fast changing environment which is influenced by globalisation.
The Legal Practitioners Act
In my address last year at this same forum, I decried the seeming reluctance of the Government to amend the Legal Practitioners Act. I again restate the same fact since we again experienced the same shift in goal posts shortly thereafter. The inability to have the LPA amended continues to limit the Society’s capability to fully discharge its mandate. Despite these challenges, the Society has had some success on the Regulatory front. Despite all frustration, it will remain steadfast in the endeavour to ensure that the public has trust in the profession by taking action against those of us who err. Effective regulation no doubt also ensures that most legal practitioners, the majority of whom are very professional, remain proud to be members of this honourable profession.
Appointment of Judges
Over the years since as far back as 2006, or earlier, The Law Society of Botswana has advocated for a change in approach to the process of appointment of Judges with very limited success. The interpretation of the relevant provisions of the Constitution is now before the Courts and hopefully the courts will this year provide certainty. The Society however notes with concern that whilst this litigation is ongoing, the Judicial Service Commission moves on with the same process that is being challenged. We would have thought that it would be prudent to allow the courts to pronounce on the proper process to follow first, or at best err on the side of caution and accept the interpretation suggested by the Society in the interim.
Since the JSC has proceeded with appointments, the LSB has resolved to join in the various litigation affecting the judiciary and further file a challenge to the appointment of His Lordship Brand JA to the Court of Appeal. An accepted principle in the dispensation of justice is that the Presiding officers of Courts must reflect the demographics of the society that those courts serve. The Society, however, notes that this is not the case in the High Court and especially the Court of Appeal where gender, race and age are disproportionate to the demographic position of the country. The Society believes, as does indeed a large part of stakeholders and observers, that a concerted drive to address this issue is required. New democracies such as South Africa, where the Chief Justice is championing this issue, have overtaken us in this regard.
As with last year, the Society restates its position that allocation of all matters should be done in a transparent manner for all litigants. Any perception that some matters involving certain litigants, in particular Government, are treated differently will certainly be unfortunate and should be avoided at all costs. There has in the last few years been an unmistakable impression that cases of national importance or significance to Government always find themselves before the same Judges and / or Panel of Judges, be it at the Court of Appeal or the High Court. The Society needs it to be placed on record that Forum Shopping as deplorable as the Chief Justice said it is in 2014, is deplorable for all. Any partial allocation of cases further destroys the credibility of our judiciary.
Delayed Delivery of Judgements
The Society notes the Chief Justice’s pronouncements that there is no backlog of cases. The Society, its members and members of the public who are litigants have a different story to tell. There continues to be a delay in delivery of Judgments. It cannot be acceptable that a Judgement on a matter brought under a certificate of urgency can be delivered two years down the line. It is not acceptable that a judgment for a Summary Judgment application can be delivered more than a year down the line when the process was meant to avoid dilatory tactics of Defendants. Despite all accolades heaped on Judicial Case Management, the Society believes it has not delivered. It has allowed Judges who are not keen to perform the ability to repeatedly set cases down for Status Hearings whilst avoiding going to the merit of the case. Repeated appearances come at a cost to the litigants. They have to bear the legal fees. We again suggest, as we have previously, that the CJ should take a more robust approach, as we have seen him do recently, to address this administrative problem.
The Rule of Law
We note with some measure of dismay that the Government last year deported two former Ugandan Refugees to some unknown destination, most likely back to Uganda. What concerns the Society is that there seems to have been a deliberate attempt to deny the former refugees access to legal representation and therefore ultimately the courts. Even more distressing is that even when an Order of the High Court was granted, the State frustrated the legal practitioner’s attempts to access his clients and indeed ultimately deported them in violation of an express order of Court. What is intriguing, to say the least, is that the Government of Botswana issued a strong statement condemning the Government or officials of the Government of South Africa when President Al Bashir of Sudan was allowed to leave South Africa in contravention of a High Court Order. Yet again on the question of asylum the Government made some alarmist remarks about some ten Eritrean asylum seekers.
This was done publicly in various media when in fact the same Government was in law expected to carry out a process to ensure that the requests for asylum were impartially considered. Legal Practitioners have not been spared. In the matter of the Eritreans, Government took to the media and other covert operations to disparage one of our finest legal minds and respected protectors of the Constitution and Human Rights. His Professional Assistant, who has lived in Botswana for more than sixteen years, was suddenly a “security threat” and denied renewal of his work and residence permits. Whilst our members may admittedly be afraid, they will not be deterred. The Law Society of Botswana believes that whilst Botswana enjoys repeated commendations on its Rule of Law credentials, we should not be complacent. Botswana and indeed Batswana should in fact introspect to determine if indeed we are what they say we are.
State of the Judiciary
The report to the Botswana Police to investigate four High Court Judges for possible criminal conduct and their suspension for allegedly undermining the authority of the Chief Justice being divisive was a low point and an unfortunate blight on our judiciary. As this matter is sub judice I will not say anything on the legal merits or demerits of the matter save to say that because of the important Constitutional issues raised by this matter in relation to separation of powers, independence of the Judiciary and freedom of expression, the Society has resolved to join in this litigation. It is important to pause here and state that all the litigation on matters relating to the judiciary is being undertaken by our members on a pro bono basis. This is a sign, if any was needed, of the commitment of the Law Society of Botswana to the Constitution of the Republic of Botswana.
Notwithstanding the sub judice rule, it would be remiss of me not to talk about the effect of the suspension of the Judges on the members of the public, the accused persons and litigants. The sad reality is that members of the public who had been litigating before the suspended Judges now have to start their cases afresh. Any attempt to do anything else would be a travesty of justice. This is no doubt at great cost in terms of legal fees and associated loss relating to the various rights that they sought to protect. Some will continue to languish in jails whilst their prosecutions are started afresh. In the assessment of the Society, 2015 has not been a good year for the dispensation of justice in Botswana.
Lawrence Lecha’s speech at the opening of the Legal Year on February 2, 2016.