Khama’s hijack of the Judiciary

In Botswana every whim of the Executive is defended by the Attorney General to its fullest extent, be it for the case of the late Gomolemo Motswaledi or “lehanza” or ARVs or the right of a Gay and Lesbian organisation to register and this has left rendered court wide open in accepting the positions of the Executive and the JSC allowing itself to be used as a vehicle to curb judicial independence and expand Executive powers.

The recent decision by the High Court of Botswana dismissing the application by the Law Society and Attorney Motumise to curtail Executive powers on the appointment of Judges raises issues of critical importance for the continuation and survival of Botswana’s democratic principles.
Whilst it is recognised that the current Judgement will be appealed the interpretation of the law that extends the influence, control and powers of the Executive, either now or in the future, into other democratic institutions of Government is concerning.
This case was neither about The Law Society nor was it about Attorney Motumise; they were the litigants that brought before the Court an issue of critical national importance; The independence of the Judiciary.
The application was about the impartiality of the Judiciary, the expansion of Executive powers and the consequent effect of the political and electoral processes in Botswana.
The   3 arms of Government, the Executive, Judiciary and the Legislature, must be clearly demarcated and distinct for effective oversight and protection of our democracy. The role of the Executive in each of these vital organs of the state must be clearly interpreted to avoid even the slightest perception of Executive interference in any of the other arms of government.
The Court’s finding that the Executive has the power to appoint Judges in his sole discretion; and to disregard the advice of the Judicial Service Commissions undermines the key values our democracy. The Executive cannot be seen nor be given the power to control the Judiciary by having unfettered control over the appointment of judges.
What the Court held was a pedantic application of the law in black and white, putting aside the ideals that we as a nation have spent 50 years trying to aspire to. What the Court ignored, and acknowledged that it ignored was the “public interest” but even so, it was not public interest that was of importance in the proceedings but rather our national identity as a country that prides itself in the rule of law and our belief in democratic principles, fundamentally in the context of this case, the independence of the judiciary and a separation of powers.
The acceptance by the Court of the Attorneys Generals argument that the Executive may decline to appoint a person as a judge on grounds that cannot be disclosed due to potential personal embarrassment such a person may suffer is,  self serving to say the least.  Persons seeking public office are fully aware that they will be openly scrutinised. Such scrutiny comes with seeking public office, why should a lawyer be treated any differently? Are we now going to have the DISS vet all persons that seek to hold “public office” for issues that may cause “personal embarrassment” as opposed to genuine security threats (whatever those may be)?
In a time of undoubted political flux the Court singularly failed to ask itself why, in a country that prides itself on having a free and independent judiciary the Executive has advanced the position that only the Executive had the power to appoint Judges.
Once again the Attorney General abdicates her responsibility to the Nation. As the custodian of the Constitution (and consequently our democratic values) the position adopted by the government attorney through her subordinates undermines the rule of law rather than advances it. The position advanced by the Attorney General being that of a black and white interpretation of the Constitution disregards of the principle that our constitution is a “living tree”. That it must be nurtured and strengthened in accordance with the aspirations of the Nation as captured in Vision 2016. It is the Attorney General’s duty to nurture this tree just as it is the Courts duty to ensure that our constitutional tree grows.
The position of the Attorney General that the appointment of Judges is an Executive power is at least consistent with her past position on consolidating Executive power. As with the Motswaledi case where the Attorney General, accepted the argument that the Executive cannot be sued for functions performed outside of those ordinarily performed by the Head of State, the current Attorney General has abdicated her role as the protector of our Constitution and deliberately adopted an approach to litigation that erodes the separation of powers and the safe guards to our democracy that such separation of power protects.
What was impressive about the recent Constitutional Court hearing across our borders to the south in the EFF/DA/ President Zuma case (Nkandla hearing) recently was that President Zuma’s Advocate accepted that the President’s position had been wrong and was based on misunderstanding of the law. Furthermore, and as importantly that the President was not going to advance an argument that would undermine the authority of the Public Protector and the recognised constitutional and democratic principles arising from her office. How unlike the position we have here, where every whim of the Executive is defended by the Attorney General to its fullest extent, be it for the case of the late Motswaledi or “lehanza” or ARVs or the right of a Gay and Lesbian organisation to register.
The Judicial Service Commission finds itself in no better position than the Attorney General; it allowed for and advanced its position that the Executive has the final say in judicial appointments. Once again failing to recognise that in so doing they have handed to the Executive the right to repeatedly refuse its recommendations without giving reasons for such refusal until the “right” candidate is recommended. With the extremely narrow pool of local attorneys from which to choose, the manipulation of judicial appointment and consequent undermining of judicial independence is clearly apparent.
It could not have been the intention of the Constitution and its creators to have allowed the independence of the judiciary to be so easily manipulated.
The court in accepting the position of the Executive and the JSC has allowed itself to be used as a vehicle to curb judicial independence and expand Executive powers.
The case, contrary to what the Judgement stated has everything to do with national issues, and could not be less about the individual protagonists and more about the aspirations of a nation.
What is clear is that our judiciary accepts that it is beholden to the Executive for its existence. The Judiciary has struck its own death knell and the judgement and arguments advanced are an abdication of the responsibility by the Attorney General and the Courts as the protectors of Botswana’s democratic principles.