Judicial quagmire deepens

SHARE   |   Monday, 08 February 2016   |   By Ditiro Motlhabane
Lawyers at the opening of the legal year Lawyers at the opening of the legal year PIC: OMANG KILANO

The relationship between government and the Law society of Botswana (LSB) deteriorated to an all-time low by Friday following a fall-out sparked by utterances made by the chairman of the latter-Lawrence Lecha-at the opening of the 2016 legal year on Tuesday. On Thursday Court of Appeal president Ian Kirby entered the fray on the side of government while numerous stakeholders supported LSB, among them BOFEPUSU and BONELA. Acting Permanent Secretary in the Ministry of Defence Justice and Security Augustine Makgonatsotlhe had said Lecha's speech at the opening of Legal Year was discriminatory, xenophobic and had racial undertones. "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," wrote Makgonatsotlhe.

LSB showed government the middle finger, refused to apologise and stood firm in support of their chairman. Lecha had rubbed government the wrong way with his vitriolic attack on the rampant disregard for the rule of law by government and ill treatment of foreign nationals. A routine invitation for President Ian Khama to grace the opening of the 2016 legal year, and mingle with the Lordships in banquet fashion on Tuesday turned into an ugly spectacle with speakers hijacking the programme to highlight failure by his administration. With a voice booming across a courtroom consumed by pin-drop silence, Lecha went for the jugular and criticised government for trampling on the rule of law. He said government last year deported two former Ugandan refugees to some unknown destination. He expressed concern that there seemed 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," said Lecha, in clear reference to statements by Shaw Kgathi and the treatment of veteran human rights attorney Dick Bayford.

SEE ALSO: Lecha’s address

Clearly disturbed, Khama reached across the couch to Shaw Kgathi-Minister of Justice sitting further to his right and whispered something, probably to relief the pressure of hundreds of eyes trained on him and giving an instruction. Lecha's rupture hit the right nerve as from then on Khama watched with a wry smile, a clenched fist to his right cheek. In the 2015 State of the Nation Address (SONA) Khama had reiterated Botswana's commitment to the International Criminal Court (ICC) and international Criminal Justice system, promising to support the ICC and cooperate with its operations. Khama said Botswana will continue to play her part as a compassionate member of the international community, before citing a raft of indices which he said affirmed and underscore the country's continued high international as well as regional ratings when it comes to issues of good governance, respect for the rule of law, safety and security, adherence to democratic norms and commitment to fighting corruption. Lecha said although members of LSB may admittedly be afraid, they will not be deterred, saying they believe that whilst Botswana enjoys repeated commendations on its Rule of Law credentials, they should not be complacent. Botswana and indeed Batswana should in fact introspect to determine if indeed we are what they say we are, he said.

State of the Judiciary

Developments in the judiciary during the week contradict the preacher - Reverend K. Kgeretlhwa, who had delivered a sermon ahead of all speakers on Tuesday. Bishop Boniface Setlalekgosi and him had prayed for sanity and peace to prevail in the judiciary for judges to deliver meaningful decisions. The judiciary was in turmoil for the better part of 2015, with appointments of judges and their fitness to hold office questioned following embarrassing leaks revealing strange conduct by some in the bench. Lecha said 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 the judiciary. He said 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.

He added that all the litigation on matters relating to the judiciary is being undertaken by LSB members on a pro bono basis. "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," said Lecha. 

 On the state of the judiciary Lecha said over the years since as far back as 2006, or earlier, LSB 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. He expressed concern that whilst this litigation is ongoing, the JSC 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," said Lecha.

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. Regarding the composition of the bench Lecha said 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, he said. He therefore said LSB 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," he said.


Lecha decried the continued delay in delivery of Judgments, which he said cannot be acceptable that a Judgement on a matter brought under a certificate of urgency can be delivered two years down the line. He said 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," he said, threatening to name and shame judges who continue to fail to deliver judgments in reasonable time. 


Lecha also called on government to stop "shifting goal posts" and amend the Legal Practitioners Act (LPA), to ensure that the legal profession operates without difficulty. He said 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, he added. In couched and guarded language, Chief Justice Maruping Dibotelo, had earlier on avoided mentioning the ongoing crisis unraveling under his administration, which has led to numerous court cases challenging the constitutionality and process of appointment of high court and court of appeal judges to the bench.

He however, called on Khama to encourage his administration to empower the Administration of Justice (AoJ) by increasing their budget to achieve their projects. To ruptures of laughter from the audience Dibotelo expressed disappointment that the AoJ has been excluded from the beneficiaries of the Economic Stimulus Programme (ESP), where they had pinned their hopes and waited in anticipation. Even more painful is that the 2016/17 budget delivered by Minister of Finance Kenneth Matambo left out projects for the AoJ, he said.  Dibotelo further said the AoJ budget should be removed from under the ministry of defence, justice and security to enhance its indepence and strengthen the separate of powers between the arms of government.