Justice when fair is foul

M.D. LECHA | Thursday February 14, 2008 00:00

The administration of justice and the courts of law serve and favour only members of the legal institution comprising lawyers (prosecutors and defense counsels), magistrates, judges and the rest of them who studied the legal letter or practice it for themselves and their well paying or well placed clients.

Many examples abound in which cases are not poorly stage managed for everybody to see the hoax in them, but many cases are hastily put together to help let loose a client of the courts even against the odds of evidence mounting against the accused and often times against the ruling. For example, what was Judge Key Dingake thinking when he released Rre Mhlauli out on bail without knowing the arguments and merits of the case that convicted him in the first place; and even despite the Prosecutor's pleas that he has not seen the Court Records of the appeal case before him for to make a useful judgment as to whether the prisoner has reasonable 'prospects for success'? 

Note that Dingake ruled for bail on a case he did not know. Justice Key Dingake overturned Magistrate Lot Moroka's learned decision on a case that he, Dingake, did not have a clue about its merits or arguments except from newspaper stories that are very so often flawed as second hand news. What does that do to Lot Moroka and his experience in the guild if it does not insult his intelligence and integrity? What does it say about the national magistrate cadre if one man, a judge, may wake up one fine morning, observe to the world that he is 'not a magistrate' but a judge, and therefore can overturn any judgment passed by a magistrate even without knowing the facts or evidence in the matter? What does it say to the Prosecution who have worked hard to produce the facts that convicted the prisoner when a judge may come and rule against conviction even without listening to or countenancing the proof or otherwise of the prisoner's case at issue? What did Dingake base his ruling on? What did he expect the Prosecution to base their argument on when there were no court records? And why did the Prosecutor allow himself to be steamrolled into posing a conjecture to be construed as factual evidence from a phantom case presented for appeal? Why would anyone, a lawyer or not, claim to argue for a position the contents of which he does not know?  

As a matter of fact, where were the court records in the Mhlauli appeal case? Does it take two months to produce court records in Botswana, when you have 14 days to appeal? How do you prepare for your appeal without the court records? And why is Justice Dingake not angry that the court records be availed instantly because it is a typical case of poor productivity? 

As a matter of administrative protocol, the case should never have been admitted to the roll without all the necessary requirements in place, including the attachment of court records thereto. A judge if it happened the case mistakenly was entered into the roll, should have had the sense to chastise and dismiss the defense counsel (Monthe) for coming to court with an incomplete filing, or without knowing or producing for consideration the facts of argument in his case (the court records).

Justice Dingake should on the other hand, have allowed Rampete to be availed the court records for study as they were to form the sole basis and content for debate and consideration in the appeal case. It was upon Monthe to fight that the records were made ready for him to help his client. Justice demands openness and transparency as the main markers of impartiality and dispassionateness. Short of that, any judgment that fails to balance itself on the truth and foundedness of propositions and premises, the very basic standard of justice, is biased and is stillborn at delivery.

Of-course Justice Dingake in all his excellence of judicial garb should not be too pleased with himself for presiding over a case the proceedings and records of which he did not have and did not know.  This was a bail pending appeal case for goodness sake. You are going to be basing decisions on whether or not to allow bail on the 'prospects for success' in the appeal as gleaned from the previous judgement. And how else and where, might the honourable Judge Dingake tell us, do you glean such prospects for success if not from the case as argued in the prior instance? What an indictment on our legal system! It speaks terribly for our law personnel and the law courts they populate. So these guys come to court not having read all those affidavits and statements in evidence but merely to listen to presentations and rule on the oral presentation by the disputing parties and their lawyers? Then what is the point in all that paper work if it does not do a meaningful job but is rather a waste of time, stationery, and effort that could have been invested in other more nationally important areas?

If it is for the eloquent and glibness of tongue in oral presentation to always win, where will justice be when you win because you are fluent and quick witted and not because the facts themselves stand alone to exonerate your position?

Rampete should have stood his ground and stated that he has no authority to vouch on any case the content of which he did not know. Why did he give in so nice and easy unless he was under some pressure? And what possible pressure was there? From what possible quarters may the pressure come from? Only this time remember that Justice Dingake is not Domkrag. So we cannot talk of Madomi fixing the case for one of their own. Or else you will be suggesting that the progressively 'scientific socialist' Dingake would have been bought by the arch-reactionaries? What would that suggest for the rest of them Marxist-Leninist thumping progressive intelligentsia if those who have sworn to a life of piety and impartiality are here seen to be kow-towing with reckless abandon to the 'dreaded ways and wiles' of those they deem 'corrupt and exploitative forces'? Somebody will have been fooled in this charade. But thanks to the Lord God, it wasn't me. But surely they must have fooled someone. Perhaps they fooled my parents, Batswana, especially all my elders who think bana ba ile kgonnye, kante go orwa legora. Consider yourselves warned from the Holy Scriptures: 'He who digs a pit shall fall into it, and he who breaks a hedge a serpent shall bite him'. Eccl: 10:8.