Like the late Justice Scalia of the Supreme Court in the United States of America, history will confirm Justice Kirby as a brilliant conservative judge, occasionally prone to progressive impulses as his last judgment delivered on the 29th of November 2021, a day before his last day in office shows. Unlike any other decision he has ever delivered his last judgement dramatically expanded rights – and judicial power in a manner that is unprecedented – and it seems the timing was perfect.
In the philosophy of law there are certain markers that point to the philosophical inclination of a judge. Elements of conservatism include willingness to limit individual rights where they conflict with government authority, preference and respect for private property; deference to governmental decisions and reluctance to upset same; concern for law and order, often over liberty and equality, less enthusiasm to embrace international law; deciding cases on narrowest of grounds, avoidance (if that is possible) to decide cases on constitutional grounds, respect of precedent ( even in circumstances where the march of time dictates otherwise) and preference for textual provisions on constitutional matters and not paying much attention to the spirit thereof.
It needs to be stated that conservative judges often deliver liberal and progressive decisions, just as liberal and progressive judges may occasionally deliver conservative judgments. It is the general tendency that is a marker of the philosophical inclination of a judge. Most judges go about their work without caring about which philosophical school of thought they belong to. In any event in ordinary run of the mill cases this hardly matters. It does however matter in high stake cases of constitutional importance.
In the literature on law few books qualify to be called classics. However, Benjamin N. Cardozo’s The Nature of the Judicial Process is such a classic. If it were left for me to dictate it would be mandatory reading for every law student and every judge. Some of Cardozo’s probing reflections needs to be recalled in order to give context to this piece. In his book referred to above he ponders the following questions (which I personally find I usually confront in a number of cases of national importance):
“What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportion do I permit them to contribute to the result? In what proportion ought they to contribute? If a precedent is applicable, when do I refuse to allow it? If no precedent is applicable, how do I reach a rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of social welfare, by my own or the common standards of justice and morals”?
The above summarises questions that often crop up in a judge’s mind when deciding a verdict of a matter and provides a context of my interrogation of justice Kirby’s contribution to our law through an assessment of a cross section of some of his defining cases. This is so because the best way of paying tribute to a judge is through a consideration and assessment of his jurisprudential trajectory that lays bare his contribution to law and reveals his legacy. Justice Kirby’s contribution to our law is undeniable.
Our law reports are littered with many of his decisions. However, the following easily stand out for their jurisprudential brilliance or lack thereof: These are: Attorney General v Motshediemang; Attorney v Peter Ogbal Paul, Attorney General v Mothusi, Kajabanga v Attorney General v Kajabanga, Attorney General v BOPEU, Hands-up Case (involving the Speakership of the National Assembly) Attorney General v Tapela and Others, Attorney General v Rammoge and Others, Mzwinila v Attorney General, Patson v Attorney General and Boko and others v IEC. I will discuss a few of these cases below.
It is of course true that no judge ascends to the bench as an ideological virgin. We all come to the bench from different backgrounds that often has a bearing on how we engage with the law. Justice Kirby is no exception. His world out look that was mirrored in his judgements may have been at variance with those who grew up in circumstances different from his.
In his days as a practicing lawyer he ran a successful law firm with significant corporate clientele. He was also the legal advisor of choice by those at the top echelons of power and their associates for a very long time.
He later rose to become the Attorney General of the Republic – and then judge of the High Court, before being elevated to head the Court of appeal, by President Khama.
In our constitutional arrangement the President of the Court of appeal and Chief Justice are gifts to the nation from a sitting President. Botswana remains one of the few countries were appointment of Chief Justice and President of Court of Appeal is the sole prerogative of the President. The Judicial Service Commission is not involved and so is Parliament and Civil Society.
Critics have bemoaned political considerations that often inform such appointments. In South Africa there is scholarly literature that suggests that the ANC appointments of heads of the judiciary and other members of the bench, are often intended to secure hegemonic control of all levers of power in society.
