The judges' dilemma: bias

LAWRENCE OOKEDITSE | Friday March 22, 2013 00:00

What has come to the fore in the past week and this week is also that judges are constantly in the spotlight and some judges are beginning to be labelled for perceived bias. Is it possible though in the human sciences that there be no bias and could we argue as the Unions have done-also citing former Botswana Law Society Chief Motumise that certain judges-Kirby to be specific are likely to be Executive minded? Or are we merely battering confidence in our judiciary for no good reason?

To begin with, after the Court of Appeal dismissed their case, BOFEPUSU made a statement that declared they were disappointed at the judgement. What disappointed them most they said was that 'in what by the court's admission was an intricate and complex case, only Kirby JP has written a judgment, to which the other judges have simply appended their signatures at the end'. They go further to cite past trends where the same Court under the leadership of Justice Amissah, A.  'would in matters of national importance articulate the basis for their concurrence with a particular judgement' and that indeed such practice is common place across the world in jurisdictions such as those of the USA and South Africa.

Not only does it help in the development of jurisprudence to have other judges present their own judgement, the argument is, but it also helps in that justice appears to have been done. And it is the courts that came up with that dictum is it not? On the note of a single judge delivering judgement on such a contentious issue and of national importance I concur presentations from other judges would have gone a long way at nurturing the dictum of justice being seen to have been done. But it was not to be. Neither does it make the judgement one fraught with bias nor dominance by the Judge President's views though.

This has led to further accusations: that Kirby JP is a biased judge, one who has a history of 'oscillating between the posts Attorney General and the Judiciary'. The whole judicial system has actually been questioned in terms of its ability to protect citizens from a strong executive. These are questions that each democracy must continuously pose though the courts may hate them. My biggest problem is that the bias card is thrown whenever government wins cases-or where conservative judges give conservative judgements. When government loses or where the so called liberal judges the courts never get castigated- largely because their judgements go with the current of public sentiment in matters of national importance.

Could we say though that the judiciary in Botswana is executive minded? Judges like all of us come from society and are involved with society. This makes it inevitable therefore that they would have their own influences. Yes, they are expected to stick to interpreting the law and passing judgements but they are human beings. The wig and all make them appear a little super human but it is all is a facade.

You are still a human being, one who has been well trained through school and experience but nevertheless a human being. As such, they too are liable to influences from political sympathies to other socio-economic issues.It is for example widely said that there are 'hanging' judges and 'non hanging' judges: some would never pass the death penalty we are told while some seem gleeful to just sentence one to hang. In such instances, it is not a matter of the law completely; the sentiment of the judge towards sentencing people to death is of paramount importance.

In political and social issues, we have also come to learn that there are judges that are said to be sympathetic to certain sects of society. The accusations against Kirby JP have been made. My argument though is that we seem to all forget that most of our legal brains who went through the University of Botswana tend to be pro opposition- at least in so far as the development of their political consciousness is concerned.I will not mention names but we have had judges who have been actively involved with opposition political parties at some stage of their education and even legal careers. Some have been student leaders of the opposition while some have led or funded opposition parties.

This has not been a coincidence: the strength of the MASS BNF in particular at the University of Botswana and its dominance by students in the social sciences-especially law- meant some of those who graduate would have imbibed the Front's doctrine. It is not a fault either. They are involved with society and cannot be expected to never have had any political alliances. The problem ought to arise if we come to a point where we know so and so will never lose a case against such and such a judge.

Could we really say that? Some will say Justice Dingake never finds against workers, some say Justice Kirby never finds against government and some used to say Justice Dow was against government and government always loses against her (until she joined the ruling party and proved most wrong!).  Looking at the record of cases these have presided over though, the trend is rather spurious. Perhaps in terms of complex cases of national interest you may say that but how many such do you have in each decade? Really few.   I do not agree either with those who say such issues should not be discussed. The courts may have a certain degree of sanctity about them but they did not create themselves. They are formed as part of the republic and must constantly be scrutinised by the media, politicians, civil society and the public at large.

That is the whole essence of having a democracy: much as we do not want a dictatorship by the executive or by the legislature, we do not want any from the judiciary.This is more so important because the judiciary tends to provide finality to matters: thus, if the judiciary makes a ruling, we need the confidence that it did on matters of law-not political sentiment. That confidence is important in that when you have the Court of Appeal making a ruling, it often is the end of the ladder, and you have limited avenues at appealing any further. In some countries, the next stage is the streets and the singing of songs of freedom.

If you get to that point, the judiciary becomes as good as being a wing of the Executive and its reputation lies in ruins. Thus, our courts may also need to introspect given the current outcry as in time it could easily plunge us in turmoil with civic disobedience. It has been argued that the judiciary must not pander to public sentiment at various stages yes but the judiciary is looked upon to be a beacon of hope in the modern state.

The confidence bestowed upon it by the people means they will scrutinise closely how it executes its mandate-in some cases like the Basarwa case it may be exalted-in cases like the appeal on Essential Services workers who went on strike, it will receive lots of scorn. That is to be expected: people's livelihoods are at stake and one may not expect them to celebrate. Thus, in so far as it continues to impact upon our day to day lives, the judiciary must expect scrutiny and criticism from citizens without shouting contempt.

At the end of it all, for every mention of Justice Kirby or Justice Newman as pro-executive like some tend to do, you get the mention in response, in the case of workers of Justice Mosojane or Justice Dingake as being pro opposition, or in the past of Justice Dow as being pro civil society and anti-government.These are perceptions that will always be out there and which we just can never prove and crucifying the courts on the basis of those may be a little farfetched.They are far from conclusive on the Executive dominating the bench or instructing it to rule in its favour.It may be in our interests to scrutinise but not declare the courts to have been taken over by the rulers while facts may be otherwise.