By and large his record in public law was a mixed one. In public law some lawyers tended to think he would fit the category of the judges that Lord Atkin considered executive minded - and perhaps even more than the executive.
Jurisprudentially a close academic scrutiny of his judgements; how he elected to exercise the options before him in any case reveal him as being inclined to legal positivism. In many high stake cases of national importance his deference to the executive was often undisguised.
The case in point was the case of Bopeu v the Attorney General. At issue was whether the dismissal of the public sector employees who embarked on a strike to press home their demands for better working conditions were lawfully dismissed. They had contended before the High Court and the Court of Appeal that their dismissal was unlawful because a hearing did not precede it.
The Court of Appeal, in a judgment penned by Kirby P, held that the dismissals were lawful in that the requirement to hear the other side before an adverse decision was taken was not breached. Justice Kirby stressed that the strike posed a danger to the life and health of patients and that the pressing urgency of the situation occasioned by the strike and the danger it posed to life and property required that decisive action be taken to protect the public. In order to cast doubt on the reasonableness of the workers’ demands, he cited issues of recession – and also offered his view that strikes in the public service should be a rare occurrence.
In the cause of his rendition in the Bopeu matter he would make statements to the effect that Botswana has enjoyed peace and stability for more than forty-five years since independence – a common self -praise line by members of the executive over the years – and perhaps a tagline appropriate to be issued by an Attorney General. If ever there were a case that opened Kirby P to accusations of executive mindedness this would be the one. The judgement as one Senior Advocate in South Africa, once pointed out, was littered with too many political statements – so many that had there been a higher court to appeal to, the possibility of the Court of Appeal being reversed existed.
In Oatile v the Attorney General, a case in which the state appealed against an order of the High Court ordering the state to pay compensation to the accused whose right to trial within reasonable time was breached he reluctantly embraced the novel idea, in Botswana’s jurisprudence, of the need to hold the state accountable for wrong doing through ordering constitutional damages as a remedy. The reluctance manifested itself in the low quantum of damages the court issued.
Before then, our courts had relied on the law of delict to remedy any wrong doing by the state and were reluctant to embrace the possibilities offered by public law – in the form of constitutional damages as an alternative. Oatile explored two related but distinct themes: the need to hold the state accountable for its wrongdoing and the need to hold it liable to pay a monetary sum to a victim of its wrongdoing. It boldly posited that in an appropriate case, an award of constitutional damages might be a better means to hold the state accountable for the performance of its distinctive obligations.
In 2019 Botswana held elections that were marred by allegations of irregularity. On the merits petitioners averred, amongst other things, instances of alleged corrupt and/ or illegal practices. These included assertions that several companies were used to launder money to pay IEC officials, that IEC officials issued more than one voters registration cards in order to circumvent the requirement of one man one vote; that there was double registration of voters, that voters were paid money to vote more than once; and that voters rolls were falsified to favour some candidate. Several petitions were registered challenging the undue return of members of parliament.
The allegations were grave. They called into question the integrity of the elections. The High court dismissed the petitions on technicalities. The majority of the judges dismissed the petitions on the basis that the petitions were presented to the Registrar of the High Court, outside the requisite 30 days set by Section 17 (b) of the Electoral Act, on the main, including that the petitions were not accompanied by a written notice of the presentation of the petition as envisaged by Section 118 of the Electoral Act.
An appeal to the Court of Appeal in the case of Duma Gideon Boko and Others v Independent Electoral Commission and Others was not successful. The Court of Appeal, in a judgement penned by Kirby P held it had no jurisdiction to entertain the appeal. Surprisingly, the court then proceeded to give a 70 page or so rendition that appeared to veer into the merits of the dispute. Surprisingly, a court without jurisdiction went so far as to make it clear that it disagrees with the dissenting judgments in the three sets of petitions delivered by the High Court.
This is one case in which finding my own position with respect to the conclusion of the court that it had no jurisdiction was difficult. I found myself overruling my previous day’ conclusions adinfinitum. I confessed this recently to one judge after engaging in the across –the oceans midnight debate on the matter. Could it be (I asked myself) that the case of Gideon Boko would in future be remembered as a case that held back the tectonic plates of power from shifting?
This was not an easy case. The force and weight of section 106 of the constitution was unmistakable. Perhaps the potential of section 7 of the Court of Appeal Act as a logjam breaking mechanism was not fully and exhaustively interrogated. The dismembering of the section and assigning adverse meaning to the first limb of the section and not interrogating the potential of the second limb may explain the conclusion reached by the court. And my rumination continues: could it be that even a full interrogation of section could have cum to a judicial cul- de- sac? Without the benefit of full argument on the point, I cannot adequately proffer an informed opinion on same.
It may well be true that although we may never know with complete certainty the winner of the 2019 general elections, because the merits were never traversed and the Court of Appeal denied jurisdiction, the identity of the loser is clear: it is the people’s confidence in an electoral regulatory framework that denies aggrieved parties access to the apex court and in the ability of the rule of the law and the judges to hear them out - to listen to what it is they say happened.
In the discipline of criminal law, Kirby P tended to embrace restrictive approach as in public law. Two examples would suffice: In Lyndon Mothusi v the Attorney General, he suggested that the right to speedy and expeditious trial did not include an appeal. And in Attorney General v Kajabanga he diluted the time frames that were more favourable to the accused as to when the cloak starts ticking, set out in the famous case of Sejammitlwa, when determining an application for permanent stay of prosecution.
Justice Kirby had a deep influence on the development of the law in our country. He was a remarkable man of the law in many respects; but more significantly he was a product of his generation and the circumstances under which he grew. All those influences found their way into our law in one form or another – because the truth of the matter is that no judge ascends to the bench as a virgin.
He had the power during his tenure to live the true values of the judiciary by reforming the process of appointment to the court of appeal to ensure that appointments to the apex court, out of respect of the people who delegated judicial power to the court (“we the people”) and the litigants were done transparently and based on merit. He failed to do so. He opened himself to accusations of privatization of the judiciary and that he had turned the judiciary into a “private spaza”. These accusations stigmatized the Court of Appeal and would hurt his legacy badly.
It is important to remember that the court exercises delegated judicial power from the people. Secrecy can never be in public interest. It is imperative that the leadership of the judiciary must conduct themselves in a manner that promotes the respect and dignity of the court. The dignity of the court is maintained better by being transparent, fair and appointments merit based.
As an administrator justice Kirby was efficient. In my experience he executed all tasks assigned to him in time. I was privileged to work closely with Kirby P on many occasions, twice or so as an acting justice of appeal at the instance of Nganunu and Dibotelo CJ. I chuckle, on reflection, recalling what both Chief Justice Dibotelo and Nganunu said to justify enrolling me to sit together with justice Kirby, in the Court of Appeal, in the few cases we did. That they all had same reasons was to my mind interesting and revealing.
Chief Justice Dibotelo also appointed me to a committee, which Kirby J (as he then was) chaired. The other member was Phumaphi J. He is a hard worker who executed assignments on time as agreed; and excellent at drafting whatever the committee may have agreed upon. It appeared drafting was second nature to him.
Fare thee well my brother. You worked hard for the republic over the years. You deserve to rest. Some elements in the bar and academia liked portraying us as ideological opposites. I do not know how true that is. History shall be the ultimate judge. I have read many of your judgements with profit. Find time to write and let us compare notes.
Hon Professor Justice OBK Dingake, PhD*
– Justice of the Court of Appeal of Seychelles and the National and Supreme Court of Papua New Guinea.
