Sing-along judges infest our courts

| Friday February 8, 2008 00:00

For several months before and a substantial part of last year, the future looked bleak. We had barely emerged from Winter last year when the sun came upon us with all its fury.

Its scorching dryness and prolonged heat were threatening to turn our country into an inferno, baking our black skins and roasting the feet of the rural folk who still walk barefooted to places far flung. We all know the unpredictability of our climate. Its mood swings are sometimes vicious and deadly. There were grey skies and naked trees all around. The future looked desolate. Everything seemed a tragic blunder of blind fate.

And then the rain we had all been yearning for finally came! The naked trees have now given way to rich green vegetation. You can now wake up in the morning and smell the wet fragrance of the morning dew, full of vitality and freshness. May this curative freshness and vitality extend to all our endeavours!

In the halls of justice, in the ordered elegance of our courts, we swear. We are sworn to speak the truth, the whole truth, and nothing but the truth. It is our job; it is our calling to speak humbling truths. We must speak the kinds of truths which, in a nasty, nagging and uncomfortable - sometimes even irritating - way, remain true!

For a long time, our justice system was bedevilled by a persistent problem. I stated in my remarks last year that the system needed to be rescued from the terminal passivity that huge caseloads and backlogs were dragging it into. The Administration of Justice responded to the challenge by introducing Judicial Case Management.

This new system, once it reaches full throttle, will revolutionise the way the business of the courts is carried out. The results have already begun to manifest themselves. It remains for us to fashion procedural rules properly suited to the attainment of the ends we seek. The success in addressing the problem of backlogs must enable the legal profession to focus its attention on yet more pressing concerns.

In the tricky constitutional threesome involving the Executive, the Legislature and the Judiciary, the judiciary has a critical role to play. The Constitution bestows upon the judiciary the awesome power to interpret it and ensure that the other branches of government stay within the locus of their constitutionally defined powers.

The parameters of reference are mapped out and defined by the judiciary. Oftentimes the judiciary is called upon to strike a balance that is infinitely precarious and fragile. The judiciary has neither purse nor sword. It may thus either be perceived - or perceive itself - as by far the less fortunate of the three branches. This perceived weakness may result in a judiciary that allows itself to become a willing hostage to executive will.

We have seen in the determination of many constitutional and human rights cases disturbing levels of deference to executive action.

We have been assailed from our High Court and worse, our Court of Appeal, with a jurisprudence of limitation and defensive anxiety. We have judges who subscribe to a truncated and ineffectual application of the Constitution of this Republic.

These are sing-along judges who still allow the executive to wave that internationally tarnished talisman of 'national security' to hold people in detention without trial.

We need, as a profession, to confront this jurisprudence and speak to its tensions and predicaments. We need to constantly reaffirm our unwavering commitment to the rule of law. We need to understand that, stripped of all academic flannel and accidental accretions, the rule of law is about judicial vigilance.

It is about judicial independence and integrity. It demands of the judges the moral authority and the courage to check any lapses and excesses by the other branches of Government.

The rule of law also requires a robust and fiercely independent legal profession. We lawyers have a terrible weakness acquired from centuries of dead habit. We have appropriated the assumptions of Neo Classical poetry which enjoin us to,
'[T]reat kings as if they were noble and gracious, statesmen as if they were wise and just, soldiers as if they were brave and merciful, great ladies as if they were chaste and fair, whatever actually may be the case.'

It is all very nice and prestigious to refer to ourselves as 'Learned' and 'Honourable'; to hide behind the garbs and accolades of virtues we are assumed to possess. But we must pause and ask ourselves a simple question sometimes.

We who are learned, are we learned? Do we strive to constantly improve our depth of learning in order to more ably assist the judges with erudite arguments?

Do we apply ourselves fully and with requisite levels of skill and competence in pleading our clients' causes before the courts?

The Law Society takes the view that learning is a lifelong process. It was in recognition of this need for continuing legal training that the Law Society mounted the Commercial Law Programme which provides practical skills in commercial legal work to practitioners.

This programme, which began last year, will be run again this year and should, resources permitting, become an annual event.

The Law Society, in collaboration with the Botswana Network on Ethics, Law and HIV and Aids (BONELA), will hold an intensive training seminar on Human Rights Litigation with a Special Focus on HIV and Aids.

This seminar, which will involve about twenty legal practitioners, is sponsored by the Open Society Initiative of Southern Africa.

An eminently qualified team of resource persons is being assembled and the seminar is planned for the middle of March this year. It is our hope that these initiatives will improve the range and quality of legal services our members offer and create a reservoir of skill needed to address the complex legal issues presented by today's world.

The Law Society is working very closely with the office of the Attorney General to carry out a comprehensive amendment of the Legal Practitioners' Act to properly position the Society for a more visible and effective role in its oversight of the legal profession. The Society recognises that under the present arrangement, the professional and ethical standards of attorneys working for the Attorney General and the Directorate of Public Prosecutions do not seem to fall under the responsibility of the Society.

Whatever compromises may be struck regarding this issue, the Society would like to receive membership subscriptions from all attorneys practising in this jurisdiction whether they be in private practice or working for Government. The Society is also keen to define the scope of legal work to ensure that non-lawyers, who do not operate any trust accounts and whose conduct is not regulated by any professional body, do not engage in work for which they are not qualified. Debt collectors will be covered and precluded from undertaking any legal work.

We also need to engage the Administration of Justice to change the current practice in terms of which attorneys make payment to the Registrar for their practising certificates. The Registrar is then required to remit the funds so paid to the Law Society. Delays are experienced in having the money paid over to the Law Society, resulting in delays in the audit of the accounts of the Society. A more sensible arrangement should see all payments for practising certificates being made directly to the Law Society to free the Registrar of the High Court to attend to more relevant functions of that office.

As I am about to conclude, the words of a poem come to my mind. Allow me, therefore, to adopt as my own Tagore's words and express my own personal yearning for a climate

'Where the mind is without fear and
the head is held high;
Where knowledge is free;
Where the world has not been broken up
into fragments by narrow domestic walls;
Where words come out from the depths
of truth;
Where tireless striving stretches its arms
towards perfection;
Where the clear stream of reason has not
lost  its way into the dreary desert sand  
of dead habit;
I would like to second the mo
tion of the Attorney General that the
2008 Legal Year be declared open.
I thank you all for the privilege of your company.