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Assessment of mental status must begin with the President

Publishing Date : 06 March, 2018

Kesitegile Gobotswang (PhD)
BCP Deputy Leader

It is reported in Mmegi (Friday, 23 February, 2018) that government intends introducing new guidelines for appointment High Court Judges.  At the time of writing this instalment the report had not been refuted. We therefore take it as authentic. 

It is a shocking but not surprising revelation.  With these guidelines government is determined to strengthen their tight grip on the Judiciary and undermine the doctrine of separation of powers. The courts will be staffed with political bootlickers (malope) masquerading as Judges.  The involvement of the highly politicised and corrupted Directorate of Security and Intelligence Service (DIS) says it all.

If the guidelines were implemented personal information on physical and health status of applicants will be shared with third parties for profiling.  The proposed guidelines are discriminatory because mental health is specifically mentioned. Law enforcement and financial agencies will be required to provide information on previous conduct of individuals relating to political activity, personal scandals, tax evasions, financial and other improprieties committed in recent years.  

With the proposed guidelines, the Judicial Service Commission (JSC) which is dominated by political appointees may be accused of engaging in political witch hunt. The underlying motive of the guidelines is suspect to say the least. The input of parliament and Botswana Law Society ought to be sought because the guidelines have the potential to infringe on constitutional rights of citizens.

Before we even talk about the introduction of new guidelines we should first address the independence of the Judiciary. There is too much political interference in the way Judges are appointed in Botswana today. Check and balances and interference are not the same thing. Parliament must keep an eye on the government and the Judiciary while the Judiciary keeps a tab on the government and parliament.  Unfortunately under the Botswana constitution government has absolute power over the other arms of government. It is an anomaly that must be corrected when a new government of Umbrella for Democratic Change (UDC) assumes power in 2019.

Oversight institutions and law enforcement agencies are tightly controlled by the executive arm of government in Botswana. Directorate of Public Prosecution in particular is one institution that must be liberated from government and remain truly independent to discharge its mandate without fear or favour. Reports that dockets of public figures in society are gathering dust at DPP are of grave concern to us. These issues need to be rectified before we talk about introducing controversial screening appointment procedures.

As indicated above under President Seretse Khama Ian Khama political interference in public institutions is deeply entrenched. Weekendpost (Saturday 24 February – 2 March, 2018) reports that Cabinet may have requested the Director General of DIS to pay back stolen money from National Petroleum Fund (NPF) using part of the DIS budget. This is preposterous and shows that the ruling Botswana Democratic Party (BDP) government is sick in the head.  Anyone who has stolen public money must pay it back from their pocket. Unlike Kgori Capital, DIS is not a private company.

Paying back the money must never be a substitute for prosecution. Those who are suspected to have stolen the money must be prosecuted without fear or favour.  This is where the independence of the DPP shall be tested. It will be a serious travesty of justice if the cases around siphoning public money from NPF were to be withdrawn under the pretext of security.  

In our view if such guidelines were to be implemented they should begin with the Head of State of the Republic of Botswana. Under the current constitution the president wields more power than all arms of government combined. Imagine a President going senile while in office with so much power.  If these guidelines were applied on presidential candidates very few would make it to the State House.

More importantly, if government is genuinely concerned about the integrity of powerful public officers there are international best practices that can be adopted. The first option could be the introduction of a law on declaration of assets and liabilities applicable to the president and cabinet ministers, members of parliament, senior government officials, heads of state owned enterprises as well as judicial officers.

The second option is introducing a system where applicants or nominees to such positions appear before a select committee of parliament to be interrogated in order to determine their qualifications and competencies as well as their moral fitness to hold such powerful positions.  The process must be open to ensure public confidence.

Some conduct of cabinet ministers brings into question their suitability for public officer. It is shocking when the Minister of Higher Education talks about supporting the private sector that is profiting from education and training in order to compete with public educational institutions, yet his government never supported mobile phone companies to compete with Botswana Telecommunications Corporation. Government never supported private health practitioners in the way they want to help tertiary institutions most of which are offering below standard training. This is hypocrisy that smells like a rotten rat.

Government is under no obligation to financially prop up private companies in any sector including education. Their consistent defence of tertiary institutions is suspect to say the least.  When a Government Minister speaks like a Public Relations Officer of a private company then you know that something is terribly amiss. That is why any profiling must start with the president and his cabinet if it has to be believed.  

The proposed method of appointing Judges raises more questions than answers especially in respect of the involvement of the notorious DIS that is widely viewed as law unto itself. For example how does DIS collect information on the judges, what kind of information is being collected, how is it being collected and many other questions comes to mind. We therefore reject the proposed guidelines for appointment of High Court Judges without hesitation.



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