The Presidential Order of Honour bestowed on Court of Appeal (CoA) judge president Justice Ian Kirby on Independence Day has stirred controversy, with trade unions suggesting that the executive arm of government is buying the judiciary. In a letter to President Ian Khama, Justice Kirby and Justice Isaac Lesetedi on Friday BOFEPUSU said as regular litigants before the courts of Botswana, including the Court of Appeal and the High Court, they are concerned about the new practice by the Justices of the Court of Appeal, which is the highest court in the land, to accept awards from Khama.
They argue that such conduct is in breach of the principle of separation of powers as it blurs the line between the executive and the judiciary.At worst, it amounts to the executive - a regular litigant before the courts - currying favours with the judges, the federation argues. As regular litigants before the courts against the executive arm of government, BOFEPUSU and its constituent unions said they are worried when the President, who is the head of the executive arm of government, rewards judges. They posit that the awards may cause Their Lordships to develop a liking for the executive arm of government to our prejudice.
The federation said they are also worried that these awards could influence other judges to render favourable judgments to the executive with the hope that they, too, will be honoured by His Excellency the President. To buttress their point, the federation cites the writings of legal experts Rebecca Annan-Welsh and George Williams. In Judicial Independence From Executive: A First Principles Review of the Australian Cases, published in the Monash Law Review (Vol 40, No 3) Annan-Welsh and Williams write: “Personal independence further requires that judges are not rewarded or punished for the conduct of their judicial functions.
Hence, any practice of the executive awarding, or recommending the award, or an honour of a judge for his or her judicial activity should be avoided. This kind of improper reward is contrasted with civil honour awarded by an independent body and with awards given after the judge’s retirement". On 30 September 2015, among 24 other receipients, Justice Kirby was given a Presidential award “for his achievements as a private lawyer, wildlife conservationist, among other things. The presidential awards are bestowed on members of the public in recognition of their service to the country in accordance with the Botswana Honours Act schedule.
The Presidential Honour is an honour awarded for efficient and devoted service to the republic of Botswana. Justice Ian Kirby last practiced as a private lawyer about 30 years ago. "It beats logic that one can be awarded a Presidential award for having practised law some 30 years ago. Why wait for him to be a judge of the Court of Appeal before awarding him? Why not wait for his retirement? It is very clear that this new practice does not augur well for the independence and impartiality of the judiciary as entrenched in section 10 (9) of the Constitution of Botswana and international conventions and consensus," said Ketlhalefile Motshegwa, BOFEPUSU deputy Secretary General.
Last year Justice Isaac Lesetedi also got the award for notable judgments in a number of legal areas ranging from commercial law, land law, procedural, family, administrative, customary and constitutional and customary law. BOFEPUSU argues that the doctrine of judicial independence requires that Justice Lesetedi ought to have refused such an award. They said the judgments which the President had in mind were not published so that everybody knows what exactly the President had in mind. "Was he being thanked for favourable judgments? What criterion was used to determine that his judgments are better than those of his peers on the bench? These are vexing questions which could have been avoided if Justice Lesetedi had refused to accept the award," asks BOFEPUSU.
The federation has called upon Justices Kirby and Lesetedi to restore public confidence in the independence of the Judiciary by publicly returning to the President their awards. "We also call upon His Excellency the President to publicly announce that he shall never again bestow awards on any judicial officer. The President and his executive arm of government are regular litigants before the Court of Appeal and the High Court. It is unethical conduct for any judge to accept awards or gifts from the President or any other government functionary in respect of their judicial functions," said Motshegwa.