Presenting his Submissions on the last week to the Parliamentary Supply Committee (PSC) for expenditure for the financial year 2017/2018 Minister of Defence, Justice and Security Kgathi glosses over Botswana’s waning international ratings in the rule of law and defence of human rights, The Botswana Gazette analyzes.
Prefacing his address with the recognition of Botswana’s international ratings Kgathi advised Parliament that Botswana persistently ranked well in the Mo Ibrahim index and the World Justice Project when compared to other sub-Saharan countries. There is no doubt that the international ratings from both these organisations rate Botswana well.
Seeking to justify the budget for both the Administration of Justice and the Attorney Generals Chambers, Kgathi relied on three key international ratings for human rights and social development indices; the Mo Ibrahim index, World Justice Project and the “World Peace Project”.
The Mo Ibrahim rating is an annual statistical assessment of the quality of governance in every African country, it ranks Botswana 2nd in the region after Mauritius. The World Justice Project is an independent, multidisciplinary organization working to advance the rule of law around the world it ranks Botswana in the category of “Rule of Law” as 3rd in the region after Mauritius and South Africa.
There is no international organisation called the “World Peace Project” as specifically alluded to by Kgathi, and there are consequently no ratings by the non-existent organisation. There is however an organisation called the Institute for Economics and Peace, working with The Economist Intelligence Unit that does release an annual Global Peace Index (GPI) and Positive Peace Index (PPI) rating. This ranking places Botswana 31st in the world.
In spite of the blatant “faux pas” as to the “World Peace Project” what is remarkably absent from Kgathi’s address is his failure to advise parliament that all the rating agencies have noted a considerable decline in Botswana’s index for rule of law and respect for human rights.
The Mo Ibrahim index notes that Botswana is going against the regional trends with its downward drift. The Mo Ibrahim index notes that Botswana “…is also one of only four countries in Southern Africa to register a downward trend in Overall Governance in the region”. The pan African rating organisation notes with particular concern the considerable downward trajectory for judicial i ndependence giving Botswana a -12.4 (negative 12.4) index rating, the largest most defining downward rating in the region.
The World Justice Project records under the Rule of law index in the category of “Constraints on Government Powers”, that the independence of the judiciary has declined giving a downward trajectory with an index of 0.55. Botswana’s worst since the rating began.
In justifying the budget requests Kgathi notes that Botswana prides itself on what is known internationally stating that “Against this background, the Administration of Justice will continue to initiate a number of strategies aimed at educating and sustaining the existing local and international confidence in the Botswana Judiciary”. The budget does not indicate how Kgathi will seek to ensure that Botswana’s reputation for having an independent judiciary will be protected, other than seeking to provide infrastructural and technical support. Absent from his submission is any suggestion of introducing legislation to ensure that executive input, control and oversight of the judiciary is curtailed. Kgathi speaks of legislative inroads in respect of aligning the High Court, Court of Appeal legislation in respect of regulatory issues such as tariffs. Critical considerations such as a constitutional amendment to ensure the independence of the judiciary go unmentioned. In 2015, the Administration of Justices, promoted a study headed by now suspended Justice Key Dingake to assess developments in Namibia and South Africa that allow the judiciary to be separated entirely from the other arms of government and manage its own funding with direct access to the consolidated fund. The Administration of Justice has repeatedly noted the lack of funding though more importantly direct access to the consolidated fund would ensure greater judicial independence. Kgathi’s submission is conspicuously silent in this respect.
The irony to the downward trend in the Botswana’s international ratings is lost on Kgathi when, in referring to only Botswana’s rank and not the downward trends he emphasises that “This case is yet another example that demonstrates existence of judicial independence in Botswana and further, the extent to which the courts in Botswana can interpret and review norms and pursue their own reasoning, free from the influence of rulers or powerful groups and individuals”. Kgathi’s submission overlooks the pending litigations in respect of the appointment of judges in the Motumise case, the suspension of Judges in the Dingake and others case and the current impasse in respect of the Court of Appeal, all matters in which the executive is seeking to assert its control over the judiciary by interpreting the constitution in a manner that promotes executive inroads into the judiciary as opposed to limiting its power that undermine the court’s being “free from the influence of rulers”.
Kgathi ignores the underlying principles that govern the international ratings, instead applying what government perceives as the basis for such ratings, “We believe as government that these good ratings are earned largely from our respect of the rule of law and general implementation of the court orders”. International ratings are based on much broader concepts than the fulfilment of court orders. Kgathi neither seeks to explain the normative values of the Rule of law, the restriction to the arbitrary exercise of power, nor does he acknowledge that Botswana’s downward trends in international ratings due to a large degree by executive interference in the judiciary.
In his submission for a budget for the attorney general, is no less self-serving of government than his request in respect of the Administration of Justice. Kgathi praises the attorney general’s defence of government in various key litigations by noting that such litigation “define and strengthen our public institutions inter-relationship as well as the separation of powers”. Again Kgathi omits to note that such litigation would be entirely unnecessary had the attorney general advised the executive to promote as opposed to restrict an interpretation of the constitution that adhered to internationally recognised norms on the separation of power. The international perception of Botswana has been done considerable harm over the years by the attorney general advancing, on governments behalf that the LGBT community are not “people” as defined by the constitution; that death row inmates do not enjoy constitutional rights; that the appointment of judges are the sole purview of the executive; that unions must have limited powers of collective bargaining and strike action . The adoption of such positions undermining Botswana’s valued reputation on the “rule of law.”
Kgathi in painting a one sided picture self-serving image of the country’s achievements is not a unique phenomenon, President Khama speaking at the Tourism Internationale Tourismus-Börse Berlin on the 8th of March proudly proclaimed that Botswana’s success story could be attributed to an “equal distribution of resources”. Botswana, according to the GINI coefficient which ranks countries according to the distribution of wealth, rates Botswana as the fourth worst country in the world.