MOKONE V ATTORNEY-GENERAL AND OTHERS (2018): MANIFESTATION OF EXECUTIVE-MINDED JUDICIARY IN BOTSWANA

This is a theoretical paper that seeks to shine the light on the concept of executive-minded judiciary in Botswana. In order to delve deeper into the meaning of the word, the paper traces its origin by reference to other jurisdictions. The paper argues that executive-mindedness is inimical to independence of the judiciary. It is argued that independence of the judiciary stands at the heart of a democracy like Botswana. Judges must not only demonstrate independence but also that they are accountable to the public. The paper does not claim that the judiciary in Botswana is not independent or irresponsible. To the contrary, Botswana is respected globally for its commitment to the rule of law and independence of the judiciary, which is constitutionally entrenched. Rather, the argument is that Botswana must not only retain its record but must step up efforts to improve this and be vigilant at all times to retain integrity of the judiciary. A country like South Korea, with a fiercely independent judiciary, especially its Constitutional Court, is a model to benchmark on. To further enhance integrity in the Botswana judiciary, as the Law Society of Botswana and other parties have requested, action is needed to remove the secrecy that clouds the appointment of judges at both the High court and the Court of Appeal. Transparency is needed in the recruitment and appointment of judges. Public hearings and or publications of portions of deliberations of the Judicial Service Commission would help achieve this openness. As the Court of Appeal has washed its hands on this matter, it is the executive branch that must move for the amendment of the constitution to achieve this. Alternatively a private member’s bill should be tabled. That will put Botswana’s democracy on a higher pedestal. The paper uses the case Mokone v Attorney-General and others (2018) to illustrate the manifestation of executive-mindedness. It argues that remarks uttered in the obiter by Justice Brand not only showed a leaning towards the executive but also have a potential chilling effect on press freedom. The press in this matter had not behaved responsibly, it is admitted, but the judge went overboard as well.