OPINION: Kirby is an executive-minded judge

SHARE   |   Monday, 30 January 2017   |   By Ketlhalefile Motshegwa
OPINION: Kirby is an executive-minded judge

He was appointed Deputy Attorney General, then acting Judge, then Attorney-General, then Judge and finally the President of Court of Appeal

Judge President Ian Kirby went berserk (on the 9th January 2017 during the opening of the Court of Appeal Session) and castigated trade unions and opposition parties; save for the Botswana Democratic Party (BDP).  BOFEPUSU resolved not to let Kirby’s unprovoked vitriolic attack on the unions go unchallenged. We have also observed over time that Justice Kirby is fond of either attacking unions and other interest groups in our society or making orbiter decisions on matters that he knows he will not be able to sit on or are still pending at the High Court or when a statutory notice is issued against Attorney General as in the case of Motumise matter. We know that currently there are cases pending to be heard by the Court of Appeal, which cases hinge on judicial independence and separation of power doctrines. Such cases include the Law Society (on behalf of Motumise) versus President Khama, four suspended Judges versus Khama, Outsa Mokone v State and Manual Workers Union v Khama.  It is therefore in light of the above cases, save for Mokone case, that Justice Kirby will not sit to propagate the executive viewpoint. It has become habitual that the remaining Justices of Appeal either concur with Kirby’s decisions or will make decisions on the basis of the commands contained in Kirby’s speeches or Kirby’s orbiter dicta statements. In his vitriolic attack on the unions and opposition parties (because it is nigh impossible to attack the BDP) Justice Kirby did not only attack unions and opposition parties, but his young colleagues in the lower Courts, presumably, the High Court. The salient points that Kirby J raised in his speech which BOFEPUSU takes exception to, are:
• The term “Executive–minded” is often used by parties, Unions or interest groups who have been unsuccessful in litigating a case against government, to describe the Judge who wrote their judgment”.
• In Botswana there is no real separation between the Executive and the ligature. The public service is led by the President and his Cabinet Ministers, who are all full members of Parliament.
• It is perhaps because of this need for stability and certainty that usually older and more seasoned individuals are appointed to the Court of Appeal bench. We have all been young and progressive Judges once, eager to leave over mark in the law reports with innovative and ground-breaking judgments, and to be remembered in a sense, for having in one way or another made or changed some aspect of the law.
The above salient points may appear benign to a lay person, who does not know the character, social background, corporate identity and class inclination of the Court of Appeal Justices and the composition of the Judicial Service Commission (JSC). We would like to unpack the principle and definition of an executive-minded Judge so as to reveal the class identity and character of the Court of Appeal Judges in Botswana. Before exploring the term executive-mindedness we analyze the composition of the Judicial Service Commission.

 The Judicial Service Commission is a judicial body charged with interviewing and selecting Magistrates, Judges of the High Court and Justices of the Court of Appeal and thereafter advise the President through a recommendation, who should be appointed by the President [see Sections 104 (2)(b), 96 (2) and 100 (2) of the Constitution of Botswana]. The Judicial Service Commission  is made up of; 1) The Chief Justice, Mr Dibotelo, appointed by the President [Section 96 (1);  2) The President of the Court of Appeal, Mr Kirby JP, appointed by the President [See 100 (1) of the Constitution]; 3) The Attorney General, Dr Molokomme, appointed by the President [See Section 51 (1) of the Constitution], 4) The Chairman of Public Service Commission appointed by the President [see Section 109 (2) of the Constitution]; 5) A member of the Law Society nominated by the Law Society [See Section  103 (1) (e) of the Constitution], and  6) a person  who is not a lawyer appointed by the President [see Section 103 (1) (f) of the Constitution]. It is clear that five (5) out of six (6) members of the Judicial Service Commission are political appointees. In short they are all the President’s gatekeepers, with the exception of one person appointed by the Law Society.  The interview of Judicial Officers is secretive hence other Judges are appointed not on merit but the criterion is whether a Judge or applicant is in the moment of despair or in financial distress or political aligned to the Appointing Authority.  In short, the President’s criterion of appointing Judicial Officers is irrational, capricious and arbitrary.  Is the aforesaid criterion open   for abuse? Is secretive interview of Judicial Officers by JSC not open to promote executive-minded Judges and Magistrates? What then is an executive-minded Judge or Magistrate?

• Dugard [1978; 280] opines that judges were often accused of being executive-minded because the Westminster model of government influences the judiciary’s ability to act independently.
• Cameron [1982:52] describes an executive-minded Judge or Magistrate to be a Judge or Magistrate with an access of ardour in countenancing government power when its exercise is challenged before him.  Cameron further says such a Judge or Magistrate tends to lean towards the side of government or public body when its interests are in dispute before him.
• Cowling [1987:190] states that the Judiciary’s tendency  to agree with the executive stemmed in part from the similar composition of the two branches and the fact that Judges’ past experiences and perceptions of contemporary social circumstances and needs impact on the way in which  they interpret laws.
• Former Chief Justice of the Constitutional Court of South Africa, the Late Pius Langa, confirmed Cowling aforesaid views thus; “we all enter any decision with our own baggage, both on technical legal issues and on broader social issues.  The policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions”.
• Edwin Cameron [1982:52] in his journal article captioned; “legal chauvinism, Executive Mindness and Justice –LC Steyn’s impact on South African Law, said a Judge may be executive-minded without being bound by the fetters of corrupt pre-decision.  Cameron suggested two methods to be used to determine whether a Judicial Officer is executive-minded.  The said two methods are; 1) to evaluate major judgments of the said Judicial Officer, 2) an attempt to establish by statistics a trend in favour of the Executive or public authority in the decisions developed by the arbiter under examination.
• It is not easy to gather all major decisions made by Justices of Court of Appeal, High Court Judges and Magistrates within a short span of time.  But for purposes of rebuttal, we adopt the test of Professor Dugard [1978:303] which test states that; “by virtue of the fact that they came from  the same small sector of society, judges shared with other members of government similar interests and were thus less likely than judges in  representative and diverse legal orders to disagree with legislative enactments”.
• The test we adopt herein is buttressed by Professor Griffith in his thesis, “The Politics of the Judiciary-1998”. Professor Griffith says judicial bias can be personal or corporate. Personal bias is where Judges or Magistrates permit their own personal prejudices to influence their own judgments, whilst corporate bias involves the assertion that the Judges as corpus [body] decide certain types of cases in a biased way.
• Griffith states that as a consequence of their shared educational experience, their shared training and practical experience at the Bar and their shared Social Situation as members of the Establishment, Judges have developed a common outlook.  Griffith further says this shared outlook is inherently conservative, if not conservative in a party political sense.  Professor Griffith says that Judges in the Judicial hierarchy are frequently called upon  to decide cases on the basis  of a determination  of what constitutes the public interest and that, in  making that determination, they express their own corporate values which are in turn  a product of their position in society as part of the ruling Establishment.
• The upshot of our lengthy conceptualization above is necessary to demonstrate the principle of Executive-mindedness in the global village before we descend to Botswana.  Do we have Judiciary executive-mindedness in Botswana?

Applying the test laid above by Professors Dugard, Griffith, Justices  Langa and Cameron, that Judges enter any decision  with a baggage of their own  and further that in determining matters of public interests they {Judges} express their own  corporate values which are products of their  positions in  society as part of the Ruling Establishment. In terms of Section  51[1], 96[1], 100[1] and 109[1] of the Constitution of Botswana, the President appoints his political gate keepers to the positions of Attorney General, Chief Justice, The President of Court of Appeal, and the Chairman  of Public Service Commission to the JSC to protect his interests and those of the Executive.  The Chief Justice empanels Judges who hear or sit in matters that involve the President.  The President of Court of Appeal decides who hears matters of public interests which involve the President.  The current President of Court of Appeal has a long history of association with the Khama family.  He also presides over matters that are brought against President Khama.
In the case of Kenneth Good v State, the Chief Justice allocated a case to the Late Judge Marumo (mhsrip).  When Judge Marumo ruled in a way that the executive disliked, he [Judge Marumo] was removed and another Judge empanelled to decide the Good’s case in accordance with the tastes of the executive. In 2009, the computer allocated Motswaledi case to Judge Dingake. The Chief Justice removed Justice Dingake and assembled a team of Justices Nganunu, Kirby and Lesetedi.  Again Justice Dingake was sidelined.  The result was later in favour of the State.  All the three Justices never reflected on the tension between freedom of association, expression and the immunity of the President.  The three Justices in Motswaledi’s case failed to follow elementary canons of interpretation as laid down by the United States Supreme Court in Smith Dakota v North Carolina and approved in Dow case by our Court of Appeal.  The Supreme Court of U.S.A in Dakota’s case held thus; “it is an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be interpreted as to effectuate the great purpose of the instrument”.
The High Court Judges in Motswaledi’s case together with Court of Appeal Justices failed to resolve the tension between Section 12[1] , 13 [1] and 41 of the Constitution of Botswana but rather made an executive-minded decision.  The Supreme Court of Uganda in Ssemongere & Others v Attorney General [2004] held that it is a cardinal rule in constitutional interpretation, that provisions of a Constitution concerned with the same subject should, as much as possible, be construed as complimenting, and not contradicting one another. The constitution must be read as an integrated and cohesive whole. Our Courts failed in Good and Motswaledi’s cases due to corporate biasness.
In Motumise [Law Society] v Khama, the Chief Justice empanelled the usual Judges that are pro-executive to give a favourable decision to the Executive. The empanelled Judges never bothered to interpret Section 47 [1] together with Section 96 [2] of the Constitution.  Section 47 [1] and [2] makes it clear that the Executive power of the President is subject to provisions of the Constitution of Botswana.  And Section 96 [2] says the President shall appoint Judges in accordance with the advice of the JSC. This is simple and straightforward, that the President’s executive power is restricted to the recommendation of the JSC to avoid abuse of power by appointing Judges that are in a moment of despair or financial distress or politically aligned to the Appointing Authority’s political party only. In the case of Minister of Labour and Homes Affairs & Another v BOPEU & 4 Others, the Court of Appeal held Justice Dingake’s judgment.  The judgment was in favour of the Unions.  The Court of Appeal gave the Unions a hollow victory because the Court went on to advise government on how to deprive the Unions the fruits of their victory-by amending the Act.
In the Public Service Bargaining Council v BOPEU case the Court of Appeal was dilly-dallying and reluctant to make a decision in favour of BOFEPUSU.  When the time came the decision lacked teeth.  It was wish-washy. In the case of the four suspended Judges the Chief Justice reported some to the Police for theft leaving out others who are similarly affected.  The Chief Justice as usual went on to empanel the bench with Executive-minded officers, whose decisions are predictable to preside over the case of the suspended and hated Judges.

The above tendencies of empanelling the bench with the usual Judges whose decisions are predictable whilst sidelining others speak volumes of the rot in the Judiciary of Botswana. The tendency goes against the rule of law. The Secretary General of the United Nations report [2004] defined the rule of law; as a principle of governance in which all persons, institutions and authorities, public and private including the State itself, are accountable to laws that are public promulgated, equally enforced and independently adjudicated and which are consistent with international human rights norms and standards. It requires as well, measures to ensure adherence to principles of supremacy of law, equality before the law, fairness in the application of law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. In the case of the four suspended Judges, other similarly affected Judges were not reported to the Police nor suspended for committing an identical offence as per the final audit report of May 2016. This selective justice and systemic punishment violates the rule of law because the law is not applied fairly to similarly affected Judges. Similarly affected Judges are not treated as equal before the eyes of the law.  The decision to suspend others and insulate others is irrational, arbitrary and tainted with bad faith. The decision to insulate others from suspension is contrary to paragraphs 9 and 12.4 of Chief Justice Dibotelo’s affidavit wherein he says the JSC resolved that the matter be reported to Police and that it is against public policy to conceal wrong doing or apply differential ethical, moral and legal standard[s] to the suspended Judges.
The above clearly shows selective justice and predictable judgments in public interest cases.

Justice Kirby is wrong to say in Botswana there is no separation of powers as if to imply that in South Africa the Constitution has a provision labeled separation of powers.  Separation of powers is a common law principle distilled from the fact that there are three [3] branches of government being the Judiciary, Legislature and Executive.  In Botswana like in America or South Africa, there is Judiciary, Legislature and Executive.  In South Africa and Botswana, unlike in America, Ministers are members of the National Assembly.  They [Ministers] are appointed amongst the elected 400 members of the South African Legislature by the President.  In South Africa like in Botswana the President and Minister of Public Enterprises are the head of Public Service. Section  91[3] [a] & [b] of the Constitution  of South Africa says, the President must select the Deputy President from among the members of the National Assembly and may select any number of Ministers from  among the members of the National Assembly.
The Constitutional Court of South Africa in the First Certification judgment [1996] at paragraph 109 held thus; no constitutional system of government can have an absolute separation of powers and that one branch of government will inevitably intrude to some degree in the terrain of another.  Many scholars around the world agree that no Constitutional provisions talk of water-tight compartmentalized separation of powers in the three arms of government. So it is no magic wand to say in Botswana there is no separation of power.  The statement was self-serving because in South African Association of Personal Injury Lawyers v Health & Others [2001] 1 SA 883, the Constitutional Court held that, appointing a Judge as the head of the Special Investigation  Unit [SIU] would blur the line separating the branches of government because the responsibilities of the head of the SIU included functions that are ordinarily performed by the police, members of staff, NPA or the State Attorney and are in inconsistent with judicial functions.
It is surmised that Justice Kirby was Deputy Attorney General, appointed Judge of the High Court, appointed Attorney-General, appointed judge of the High Court and finally the President of Court of Appeal. This alone does not need any explanation that such oscillations between the Executive and the Judiciary beget an executive-minded Judge and blurs the line separating the branches of government.

The issue whether old age means wisdom or senility is debatable. Much as the issue as to whether being young means immaturity or knowledgeability in the law is debatable.  We feel the issue of age may mean experience and wisdom much as it may mean laziness and senility.  It also has corporate and class connotations. This is an interesting issue that needs a lot of space for debate. It suffices to implore the words of Professor Alan Dershowitz on her paper, captioned; ‘Path to Justice” [1999] as follows; our senior judiciary is a small legal clique who select your wigged Platonic guardians seem to believe there is a white, male gene for intellect, integrity and professionalism”.

We, in BOFEPUSU, advocate for a mix of cultures, ages and ideological differences.  Our Court of Appeal seem to have regressed since it was localized because the citizen judges seem to be all conservative and pro-establishment.  We adopt the cautious words of Albie Sachs, former South African Constitutional Court Judge’s words that “Excessive Judicial adventurism could be as damaging as Excessive judicial timidity”. In Botswana since the ascendancy of Khama to Presidency of the Republic, the Court of Appeal is practicing excessive judicial timidity and its executive-mindedness is worsening by the day.

BOFEPUSU cautions the Judiciary in the following words used by many scholars that ‘in a profession where advocacy and public speaking is vital, silence often become an asset, if not an art’. If Judges are caught expressing their personal opinions in Court, they will subsequently be criticized and ostracized. However, if they remain silent, they will survive.  As Plato questioned, who will guard the guards? Who will in practice Judge the Judges? The voters when they change the ruling party, same must apply to Judges who are excessively timid and we are watching Judiciary packing by President Khama with keen interest.
We, in  BOFEPUSU, wish to inform  Batswana that in  future Judge President Kirby will not preside over our cases which  deal with  separation  of power, judicial independence and other public interest matters because he already has an  opinion  and we hope his opinion  was not a directive to other Court of Appeal Judges  to follow suit.  We are witnessing a situation where our Court of Appeal Judges always concur with JP in public interest matters.  This is an indication that our Court of Appeal practices excessive judiciary timidity. The struggle to fight for the welfare of workers in Botswana will not be deterred by excessive judicial timorous officers. We will die in the trenches fighting for the rights of workers and for generations yet unborn. Everything has its own timeline. A time will come when we will call audit of judicial competence to deal with judicial packing by Khama.
• Motshegwa is BOFEPUSU Deputy Secretary General