Home » News » Debates » Kirby’s lecture on separation of powers

Kirby’s lecture on separation of powers

Publishing Date : 16 January, 2017

Author :

Your Lordships, members of the Bar, I welcome you once more to the opening session of the Court of Appeal for 2017.

We have another heavy session before us, with fifty four appeals enrolled, of which only ten are criminal appeals, and many of the civil matters are complex with weighty records of proceedings. So I will not detain you long with these remarks. I express my gratitude to Justices Walia and Leburu whom the Chief Justice has kindly released to assist us during this session, so that where necessary three panels may sit simultaneously.

On behalf of all the Justices of Appeal, I would like to extend our condolences to the families of two of our former colleagues of the Court, who passed away in the course of 2016. They were Lord Coulsfield, who served from 2005 until 2009, and the Honourable Elijah Legwaila, who joined the Court in December 2011, and retired on account of his failing health in December 2015.  Their services to Botswana, and to this Court are greatly appreciated.

During 2016, as in previous years, there has been some commentary in the press about “executive-mindedness” in the judiciary, and particularly in this Court, so I would like to say a few words about this and about my own view as to the role of the Court of Appeal.  First, there is the separation of powers – much of the debate on this subject has arisen from comparisons with South Africa and the United States of America, whose constitutional dispensations are very different from our own.  We may learn from them in some respects, but in others we prefer not to do so.

In Botswana there is no real separation between the executive and the legislature.  The public service is led by the President and his Cabinet Ministers, who are all full members of Parliament.  Together with the other members of the House they conceive and pass all the laws which we in the Judiciary implement and interpret in the performance of our mandate. 

The true separation is between those two putative branches of Government, who are effectively one, and the judiciary which must remain independent and free of political influence, whichever party is in power.  This is notwithstanding the fact that in Botswana, as in virtually every other country in the world it is the Legislature and the Executive – the powers that be – that in the final analysis legislate for the selection of Judges.  And because of this they have the power to appoint most members of  the bodies that make such recommendations or choices.

And it is because the tenure of Judges is constitutionally guaranteed, that their independence and fair-mindedness is so important. Although there may be changes of Government, in the political sense, the members of the Judiciary remain in post, pledged to respect, implement, and interpret the laws passed by the Government of the day, without fear or favour, and protecting the rights of every citizen accorded by the Constitution. 

That is the essence of the Rule of Law.  You may be aware that the Judicial Oath, by which all Judges are bound, enjoins us to honour and respect not only the Constitution, which is supreme, but also “the laws and usage of Botswana” and that is what we try to do.
So what, then, is an “executive-minded” Judge, and what is the role of the Court of Appeal in its adjudication of disputes and controversies between citizens, between (on occasion) Government and civil society, and between powerful corporations and less-resourced

The term “executive-minded” is often used by parties, unions, or interest groups, who have been unsuccessful in litigating a case against the Government, to describe the Judge who wrote their judgment. On the other hand, successful litigants tend to describe their Judge or Judges as “progressive”. 

So the same Judge may, depending on the circumstances be described in either way, because every case is decided upon its own facts, and upon the same laws which apply to conservatives and progressives alike. That we must accept, but dramatic departures from the norm, or ground-breaking interpretations of the law will always be the exception rather than the rule and, on balance, any Government loses more cases than it wins. This is so because, in managing such a large workforce and such a wide portfolio of duties, as every Government must, there is abundant scope for the inevitable errors and miscalculations that do occur.

The Court of Appeal, as the highest court in the land, whose decisions bring final closure to litigants and often have a significant effect on their lives, has a grave responsibility to bear.  It is expected to be a stabilising influence in society, and to make mature, measured, fair and usually predictable decisions, with which society can live for the future.

Major policy changes, as for example the abolition or retention of the death penalty, which is a punishment recognised by our Constitution, are usually better left to the elected representatives of the people to decide upon through the parliamentary process. Our responsibility, whatever our personal views may be, is to respect and interpret the laws passed by the Government of the day, and to ensure that these do not stray beyond the boundaries set by the Constitution.  If they do exceed those boundaries we must, of course, intervene, as happens from time to time, and we must do so without fear or favour.

It is perhaps because of this need for stability and certainty that usually older and more seasoned individuals are appointed to the Court of Appeal bench.  We have all been young and progressive Judges once, eager to leave our mark on the law reports with innovative and ground-breaking judgments, and to be remembered, in a sense, for having in one way or another made or changed some aspect of the law. 

It is for the Court of Appeal to steady the ship, to ensure that our judgments reflect the general expectations of society, and to see to it that to the extent that the law, and the principles of constitutional interpretation may permissibly be developed by the Courts, this is done in a gradual and responsible way so as to minimise disruptions in public life.

These of course, are my personal views, but I believe that they are shared by the other members of the Court.  We are all as you can see (and with due deference to Justice Leburu) more mature in age than most, so I hope you will be patient with us, and speak up when making your brief and concise submissions.  It only remains to wish you all a happy and prosperous New Year, and to proceed to the calling of the Roll for what I hope will be both a stable and a progressive session. *This is an address by the Judge President Ian Kirby at the opening of the January 2017 Court of Appeal session



Do you think the courts will help put the UDC, BMD impasse within reasonable time ahead of the 2019 General Election?