The Ministry of Defence Justice and Security would like to express its concern at some of the remarks made by the Chairperson of the Law Society of Botswana (LSB), Mr Lawrence Lecha at the Official Opening of the Legal Year at the High Court on 2 February 2016. Mr Lecha stated, among other things, that the LSB had resolved to file papers to challenge the recent appointment of a Court of Appeal Judge.
While the LSB is free to announce its intention to bring litigation against anyone it chooses, the manner and context in which Mr Lecha made his remarks was inappropriate. In naming the Honourable Judge, who was present in court, Mr Lecha personalised the matter unnecessarily, and displayed an insensitivity that is unbecoming of the leader of a professional association.
This insensitivity is further displayed in the statement made by Mr Lecha shortly after mentioning the Honourable Judge by name, to the effect that the constitution of the higher courts, especially the Court of Appeal, does not reflect gender, race and age demographics in the country. By making these remarks, especially in so far as they relate to race, Mr Lecha displayed an insensitivity and intolerance that is not consistent with the values of Batswana, especially Botho, and mutual respect.
Botswana prides itself, and is widely admired, as a multiracial, multicultural and tolerant society that welcomes citizens of other countries openly. The Botswana Government wishes to make it clear that we appreciate the positive role played by professionals from other countries in our development, without regard to gender, race and age. We cannot expect our own citizens who serve in other countries to be welcomed if we do not do so ourselves.
In particular, we reject in the strongest terms any remarks made by anyone, that directly or indirectly have discriminatory, xenophobic and racial undertones. The LSB is reminded that the Botswana Constitution guarantees non - discrimination on the basis of race, origin, colour, sex, creed and political opinion.
It is most regrettable that Mr Lecha's remarks soiled an otherwise dignified and solemn occasion where the leadership of Botswana at all levels was represented, and the world was watching. To this end, we demand an unreserved written public apology from the Chairperson of the Law Society, for the embarrassment he has caused members of the judiciary and the nation. Until this apology is made, the Ministry will not interact with the Law Society in any official capacity.
*Augustine N. Makgonatsotlhe is Acting Permanent Secretary (Ministry of Defence Justice and Security)
Regarding Appointment of Judges, Lecha had stated;
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. The appointment of Justice Fritz Brand, who recently retired from the Supreme Court of Appeal of South Africa, was made by CoA Judge President Ian Kirby at the opening of the January 2016 Court of Appeal session.