Judiciary in crisis - BCP
Judicial independence is the cornerstone of any modern democratic state. It is a sacred principle meant to protect every person against arbitrariness and unlawful actions by whoever, particularly the executive arm of the state. Judicial independence means that judges are independent from all forms of coercion, threat, direct or indirect, whether from government officials, politicians, other judges, or the Chief Justice. Over the years opposition parties, civic organisations, academics, and the labour movement have expressed concerns over the erosion of the independence of the Judiciary.
The growing clarion call for comprehensive reforms has largely been ignored by the ruling Botswana Democratic Party (BDP).
This is because under the current dispensation, the Executive in general and the President of the Republic of Botswana in particular, enjoy absolute power. The exercise of this power and its absurdity could be seen on the ongoing Presidential Commission of Inquiry on the Review of the Constitution.
The less we talk about the ongoing President Commission of Inquiry the better. It is a fraudulent exercise of monumental proportions meant to deceive the nation into believing that it will produce a comprehensive review of the republican constitution. Under President Masisi the situation has significantly moved from bad to worse.
Since the Judiciary is the last line of defence for our democracy, every citizen of the country ought to be worried when the Judiciary is captured by the executive arm of government as it is glaringly the case today.
With this issue of Democracy Alert, the Botswana Congress Party (BCP) seeks to bring to light growing signs of a Judiciary in a state of crisis with a view to defuse the narrative that Botswana is a shining example of democracy and the rule of law. Clearly Botswana’s shining star of an exemplary democratic state has faded as other brighter stars emerged across the length and breadth of the African Continent. This Democracy Alert also provides an answer to the question “What needs to be done?”
The Botswana Congress Party (BCP) is gravely concerned by the privatisation of the Court of Appeal, the apex court of the land and the politicisation of the appointment process. Over the years, we have advocated and demanded that the Court of Appeal must be reformed in the way judges are appointed to the court, by introducing transparency and merit in the appointment process.
These demands have fallen on deaf ears. After the recent retirement of the former President of the Court of Appeal stakeholders and commentators naively thought the situation would change. Instead, the situation deteriorated even further. The Executive control of the appointments of judicial officers of the Court of Appeal continued unabated. In addition, regionalism continued to rear its ugly head. Our view is that the Court of Appeal is a national institution. It is the last line of defence of our democracy.
The Court of Appeal does not belong to any party or individual, neither does it belong to any ethnic grouping. It cannot be the sole control of one ethnic group or members of a particular party.
We, at the BCP believe that the Judiciary should reflect the values that our nation should hold dear: merit, fairness, integrity, and transparency. Recent trend in the appointment of judges where meritocracy is overlooked and junior judges who are close to the ruling party are preferred over deserving ones is a dangerous cancer and blight to our Judiciary and must be stopped forthwith.
The trend we are witnessing under the Masisi regime must be rejected with the contempt it deserves. It is a matter of serious concern that the current regime has totally destroyed the credibility of the Judiciary, especially the Court of Appeal. The Court of Appeal is considered by many as an extension of the Executive.
The BCP associates itself with the calls by the Law Society of Botswana (LSB) and the Civic Organisations led by Ditshwanelo for the immediate resignation of the Chief Justice as he is not fit to hold the esteemed office.
The Judicial Service Commission (JSC) is called upon to rise to the occasion to restore confidence on the Judiciary. Furthermore, the Court of Appeal ought to respect our people and stop taking instructions from the BDP on appointment of Judges. In the long term, the country needs a comprehensive constitutional review that is also inclusive and transparent. There should be a true separation of powers with checks and balances. There should be parliamentary and public hearings in the appointment of judicial officers to the bench to protect the judiciary from mediocracy.