Just before reading a judgement quashing President Kenyatta’s re-election, Kenya’s Chief Justice David Maraga said “The greatness of any nation lies in its fidelity to the constitution and adherence to the rule of law and above all respect to God”. In his State of the Nation Address delivered on 13th November 2014, President Ian Khama said that “Adherence to the rule of law remains the cornerstone of our national development”. Presidents Ian Khama and Uhuru Muigai Kenyatta took oaths of office to protect and defend the Constitutions of their respective countries and by extension respecting and promoting the Rule of Law. But recent actions, conduct and utterances by the two Presidents paint an unfortunate but seemingly well calculated contempt of the judiciary in Botswana and Kenya respectively. At the heart of the Presidents’ displeasure are the highest courts in both countries ruling against them – Khama losing Attorney or should I say Judge-elect Omphemetse Motumise’s appeal at the Court of Appeal (COA) in April this year and Kenyatta losing an election petition in the Supreme Court of Kenya mid-August. Judgements on both cases and reactions by both Presidents are therefore the basis of this conversation. Both Presidents are finding it extremely hard and unreasonably so, to come to terms with their court losses compounded by the fact that they do not have any more recourse in law or elsewhere for that matter. It is such a bitter pill to swallow for them. It goes without saying that it is unpleasant to lose a contest whatever it could be. That said, Presidents also have a right to disagree with court decisions but for them to openly cast aspersions on institutions and/or those who lead them is unfortunate and unacceptable. Restraint of the highest order is required and desirable from the two Presidents however strongly they may be aggrieved by court decisions. Let us look as the backgrounds of each President as an affront to the Rule of Law.
The President’s legal team has been very poor in court lately for what one could classify as major cases with huge public interest. It is either cases were highly unwinnable or they were poorly approached. The only major case his team did him proud is the one against the late Gomolemo Motswaledi back then in which the very same COA ruled in his favour. Beside this case, the President attempted but failed soon after the 2014 general election to force Members of Parliament (MPs) to elect the Vice President by show of hands as opposed to a secret ballot. The President approached the High Court and the COA where like I have said, lost at both courts. The second major case was when the Law Society of Botswana (LSB) sued the President for refusing to appoint Motumise a High Court judge which decision was contrary to that of the Judicial Services Commission (JSC). The President enjoyed a short-lived reprieve by winning at the High Court. Tables turned against him when the COA ruled albeit indirectly but directly that Motumise be so appointed. Against all reasonable expectations we were treated to some spectacle and drama spear-headed by none other than the Minister of Justice, Defence and Security Hon Shaw Kgathi – the man charged with the responsibility of ensuring amongst others, adherence to the Rule of Law.
I am saying against all expectations because if the President had ultimately decided to formally appoint Motumise, a simple announcement to that effect would have been made and would have been sufficient without the spectacle and drama as we saw at a ‘state media’ press conference on Botswana Television on Tuesday evening. Kgathi, on behalf of the President, informed us that the latter had ‘very reluctantly’ appointed Motumise. The Chairman of LSB Attorney Kgalalelo Monthe said on Duma FM on Wednesday evening that as at the time of his radio interview, he was not aware of such appointment nor was Motumise himself. Common logic dictates that the appointee would have first been formally and officially informed before us the riff raff. It would appear that the President strongly feels that he has negative information which makes him ‘very reluctantly’ to appoint but that for some strange reason if you allow me to say so, he is unable to avail it to Motumise himself or the COA. In fact, some judges of the COA insinuated that had such negative information been availed to the court and such was valid or persuasive, the court may have agreed with the President not to appoint him. Completely irrelevant information about individuals who had previously applied for judgeship but were unsuccessful during the era of the late Chief Justice Nganunu was brought to our attention. What for, one may ask.
Without blowing my own trumpet, Adam Phetlhe on Sunday wrote in April this year under the heading ‘The President must appoint Motumise a judge’ that ‘My gut feeling tells me that Motumise may very well prepare for another trip to the COA’. This was in anticipation of the President failing to comply with the COA judgement as there were some signs to that effect. It has since emerged that the LSB has set in motion a Writ of Mandamus (a process of approaching the court to obtain an order to enforce its own decision) in this case LSB seeking the COA order to force the President to appoint Motumise. LSB believes that the current turn of events is precipitated by the Writ of Mandamus otherwise no movement would have occurred. The current debacle, drama and spectacle around the appointment of a judge is unprecedented, unnecessary and has arguably brought to the fore, and somewhat confirming the perception that the executive is not yet prepared to accept the role and decisions of the other arm of government, the judiciary.
A day or so after his re-election was overturned by the Supreme Court of Kenya, Kenyatta became abrasive, confrontational and downright contemptuous to this court with particular reference to the Chief Justice, Justice David Maraga. He made disparaging remarks about the robes of the justices who turned his re-election down by saying that such robes did not make them any better than everybody else. He further said that as soon as he is re-elected in the re-run late in October, he will ‘fix’ the judiciary. These are loaded statements which could suggest it is Kenyatta’s way or the highway. He conveniently forgets that about three or so of the judges in the present case were the same who ruled in his favour in a similar petition in 2013. He also conveniently forgets that after he was declared the winner three days after the elections date, he appealed to his chief competitor Raila Odinga to seek recourse at the same court presumably because he thought lightning would strike twice in the same place. It never was! At the time of writing this article, Kenyatta was still ‘blowing hot air about his loss’. I do not understand why Kenyatta is so enraged about the Supreme Court overturning his re-election because he still has an opportunity to reclaim his presidency back through the upcoming re-run. Or is he afraid that the ‘illegalities and irregularities’ which gave him a short-lived win could be absent this time around? Time will tell. What am I saying about the two Presidents?
From the above, it is pretty clear that both Presidents endorse court decisions only when they are in their favour and trash the same when not so. Naturally, there will be tensions between the executive and the judiciary where the former expects the latter to play second fiddle to it. Events unfolding in Botswana and Kenya give testimony to this view. Stanford Encyclopaedia of Philosophy on the Rule of Law first published in June 2016 under ‘The Contestedness of the Rule of Law’ says “The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does and that it should be accountable through law when there is a suggestion of unauthorised action by those in power. But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinants of what their rights and duties are….”