Botswana Federation of Public, Parastatal and Private Sector Unions (BOFEPUSU) take it that, for our Country to remain a stable, progressive and prosperous democracy there is a need to continue protect, nurture and develop our democracy protection institutions. The citizenry and civic society must develop interest and actively participate in the affairs of the Republic to ensure that the prevalence of democracy is not eroded, and by active participation, critique and holding elected and non-elected public servants to account strengthen our democratic institutions. It is incumbent on society therefore exercise its power to hold Government and its functionaries accountable for their deeds and misdeeds, but in order to do so government needs to be transparent and open. In a functional and well-structured democracy, there exist the executive, legislature, and judiciary. The responsibility of the legislature is with regard to formulation of policy and enactment of law, in turn the executive put such policies and laws into implementation or action. Lastly the judiciary is mandated in accordance with rules of procedural justice to interpret, apply and resolve disputes. There must exist separation of powers between these three branches of Government to guarantee true democracy and freedom. The rationale behind this separation of power is to avoid absolute power, for “power corrupts and absolute power corrupts absolutely.” Essential to this democratic system of holding power to account is the independence of the judiciary, the transparency in the appointment process of judges and the right of the public to have input into who gets appointed to this high office that is intended to safeguard the public interest of the whole nation and not the interests of a select few. Judges occupy a unique and special place in any democratic dispensation, as unelected public servants they have the power to interpret the rights of citizens. This power and authority places them on equal footing, if not above, publically elected officials.
Over the last 10 years, Botswana has witnessed increasing tension between its values of a constitutional democracy and a rigid interpretation of its constitution that undermines that separation of powers. The judiciary has suffered under the leadership of Ian Khama at the helm of Presidency of the Country, Ian Kirby at the helm of Court of Appeal and Maruping Dibotelo as Chief justice. Litigation against the three, two of which hold the highest judicial offices in the country reflects a dangerous combination that has failed to foster, nurture and promote judicial independence and democracy in general. At the heart of judicial independence, is the importance attached to the process of selection and recruitment of judges, and security of tenure of the judges. Such a process needs to be more transparent to ensure judicial independence and bolster the fight against executive encroachment and shield the public from corruption holding power to account. The lack of transparency, absence of public oversight and incomplete or secretive records mars the selection process of judges, which in turn creates a dearth of public confidence in the judiciary, creating a judicial crisis. It is truism that secretive selection breeds conflicts of interests, stifles objectivity, generates influence peddling all of which may lead to a selection of incompetent and executive minded and controlled judges within an institution whose role is ultimately to serve the public. For democracy to be functional and successful, emphasis must be placed on a free judiciary, for without an independent judiciary, the system collapses into chaos and despotism. The role of judiciary must be seen in the context of guardianship and as custodians of the constitution and consequently enhancing the rule of law.
Judges take an oath of office that demands of them to uphold the constitution without fear or favour, affection or ill will. Their oath is not merely binding on the Judge from their point of view but it is just as importantly an issue of public perception of what that Oath entails to the electorate. The public is required to know that those appointed to judicial office are capable, independent and brave enough to interpret the constitution in accordance with wishes of the people as prescribed by law and our nation’s international obligations, and that those appointed will uphold their sacred duty to correct the errors of the executive, and other arms of government when they cross the limits of power assigned to them. In terms of its role and importance, judiciary is tasked with safeguarding and protecting the constitution and its values and in ensuring the consolidation of democracy and the realisation of a better life for all, in accordance with the aspirations of the electorate and not those ascribed by appointed individuals.
Transparent process of appointment
Of paramount in the process of selection of judges is the need for transparency, accountability and independence. Security of judicial tenure is essential for the independence and impartiality of the Courts of Botswana. An effective selection process must come up with judges of highest integrity and competence, who can stand up against the executive, government and whoever might come before them. The selection process must select judges who are not afraid to rule against Government when the law and facts point that way. It must be noted that the impartial and competent administration of justice is fundamental to the rule of law, which underpins our democratic freedoms. On that note therefore a strong and independent judiciary requires the appointment of appropriately skilled judges. The process and manner of choosing who will be responsible for ensuring the administration of justice according to law, impacts directly on public confidence in the courts and their decisions. Our process of selection must ensure transparency, so that the public can have confidence that the selection process appoints the best possible judicial candidates, that all appointments are based on merit, and that everyone who has the qualities for appointment as a judge or magistrate is fairly and properly considered. Consideration should also be given to the diversity of those appointed. We must pursue and aspire for a judiciary that takes into consideration and reflects the rich diversity of our community. The level of diversity should be in relation to professional background, cultural background, experience and gender. We should continue to adapt and improve our processes to ensure that suitable candidates are identified and appointments based on merit.
To make this process more independent, impartial, just and fair the appointing authorities or commission must be independent, publish the policies, criteria, selection procedure, job description, pertaining to judges. The appointing authority/commission must publish its annual report stating its process and selection of judges, for more openness for the general public. Parliament, as elected public servants, and not the executive or the judicial service commission must be the ultimate appointing authority. There is lack of openness and transparency in selection of judges in Botswana and hence the need to introduce reforms which enable the public to be aware of whom is being appointed, their qualities and abilities as well as their philosophical approaches to law and governance. There is need to introduce a fair and transparent system for appointments at all levels within the judiciary, which can only be achieved by introducing a new application process based on openness and transparency. Appointments to judicial office are not made transparent by a public advertisement of posts when the criteria is not disclosed. The constitution lays a basic requirement of whom can be appointed but the process of such appointment has been left, by default, to the non-elected, executive appointed members of the JSC. Parliament must step in and fill this critical void and the public, whose interests in a democratic dispensation are of vital importance must have a say in the process. The necessary security vetting required for judicial appointment cannot be left in the hands of an executive appointed institution that lacks independence. The need to reform in this respect cannot be overstated.
Security of tenure of judges
The guarantee of security of tenure provided by the Constitution must be given effect and legislated, to insulate judges from the executive so that they owe their allegiance to the constitution and pursuit of justice, and not to check whether their judgements please the Executive or President so as to secure their jobs. Without security of tenure, an office-holder may find his or her ability to carry out their powers, functions and duties restricted by the fear that whoever disapprove of any of their decisions may be able to easily remove them from office. As the country experienced recently, the suspension of judges for being critical of the Chief Justice cannot be allowed to be repeated. The travesty of the suspension was made all the more pronounced by the Executive reinstating the judges after the President accepted their apology, undermining the public trust. Security of tenure offers protection, by ensuring that an office-holder cannot be victimised for exercising their powers, functions and duties. It ensures that the democratic or constitutional methodology through which the office-holder comes to office cannot to be undone except in the strictest and most extreme cases. The core elements of judicial independence are freedom from external control by the executive government and freedom from internal control by other judicial officers, and the administration of justice. The primary mechanism for protecting judicial independence is security of tenure, which supports external and internal judicial independence. External judicial independence enables judicial officers to make decisions they regard as just according to law and fact, without being influenced by the state or other parties to reach a particular result.
It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assured with confidence to exercise authority without fear or favour. Judicial independence enhances the rule of law in several ways. In cases between citizens, it supports decision-making based on the facts established by the evidence and the legal arguments rather than external direction. When the court decides disputes between citizens and government, independence from the government reduces the risk of apprehended or actual bias in favour of the government as a litigant. External judicial independence also supports the rule of law by maintaining public confidence in the judiciary and the courts as institutions. A judicial officer who can be dismissed for making a decision of which the government disapproved, would be unlikely to command the confidence of the public. Internal judicial independence is also a key mechanism in the rule of law. Just as executive direction of adjudication would be inconsistent with the rule of law, so would improper direction from the presiding judicial officer — or any other judicial officer.
The need for competent judges
In view the emerging challenges and professional deterioration, the courts need highly-qualified, competent and well-trained appointees to provide the judicial services more efficiently. Our courts need judges with the highest ethical standards, extensive knowledge, complex and unique leadership skills, decision-making and administrative capabilities. We need to develop education and training programmes that provide judicial officers and court personnel the knowledge and skills required to perform their responsibilities fairly, correctly and efficiently while adhering to the highest standards of personal and official conduct. Buildings never make institutions, rather conduct and contribution and effective service delivery to the people make and magnify the institutions. We must have zero tolerance for corruption that dilutes public confidence in our system of democracy and contributes to the adverse perception that questionable or erroneous judgements were not made as free decisions, without fear or favour but were due to lack of independence. Without an independent judiciary it will be impossible for Botswana to make progress in the fight against corruption, impunity and authoritarian overreach. It is noted with alarm that Botswana is allowing the lack of specificity in the Constitution to compromise its judicial system through a flawed process that is vulnerable to special interests. We call upon Parliament to urgently formulate, in consultation with civil society, legislation that governs the appointment and tenure of judicial office.
In an endeavour to instil credibility, promote the integrity of judiciary and restore public confidence in the judiciary there is need for legislative reform in the selection process. There is need for established non arbitrary criteria to be used to select judges, including those of the Court of Appeal, conduct due diligence to establish candidate capabilities and rule out conflict of interest, publicly publish a full report of the selection process have the JSC back up its choices. The public must have an input in the process and ultimately the decision to appoint must be vested in the hands of elected officials, not appointed. For greater transparency, under the current system, the votes by members of Judicial Service Commission should be made public along with all potential conflicts of interest. BOFEPUSU is highly concerned and disturbed by the envisaged process of recruitment of judges and involvement of Directorate of Intelligence Services and other security organs in the selection of judges while these lack independence in their own right. Our concern arises from unfavourable vetting that may be given to “undesired” candidates who do not fit the mould of the powers that such organisations answer to.
As a way forward, the Federation will;
-Lobby parliament to enact law that protect and guarantee judicial independence
-Write to the Judge President of Court of Appeal and Judicial Service Commission to avail the process and criterion of selection of judges, and for publication of report of past activities of selection of judges for public appreciation.
-Petition the President of Botswana on an ongoing act of encroachment of the Executive on the arm of judiciary
-Hold demonstrations against the ongoing and evolving secrecy surrounding selection and appointment of judges
-Identify, name and publicly shame judges who fail to uphold the sanctity of their Oath of Office.
-in joint effort with Law Society of Botswana, host a symposium on the state of judiciary in Botswana and engage in a public education campaign.
We call upon incoming President, Rre Masisi to see to it that the Executive stay away from the business of judiciary and perform only those ceremonial functions that the Court of Appeal has pronounced in such appointments. We expect him to do better in upholding the sacred position of the Judiciary in our democratic dispensation, than the outgoing President.
We further call on judges to remember their Oath of Office, and renew their pledge of allegiance to the Constitution and pursuit of justice.
*Motshegwa is BOFEPUSU Deputy Secretary General. He writes from Turin, Italy