Independence of the Judiciary 2024 PDF

2024  “… No judge or magistrate in Botswana should do that which his conscience tells him is wrong and against the Constitution or laws and usages of Botswana, to gain a nod of approval from any official or politician or the applause of thousands or the daily praise of the pr...

2024  “… No judge or magistrate in Botswana should do that which his conscience tells him is wrong and against the Constitution or laws and usages of Botswana, to gain a nod of approval from any official or politician or the applause of thousands or the daily praise of the press or the news media or avoid that which his conscience tells him is right and in conformity with the Constitution, though it should draw upon him a whole artillery of libels, all that falsehood and malice can invent, and the credulity of a section of the populace can swallow.” (Hayfron-Benjamin CJ ( former Chief Justice of Botswana) from “ The Judicial Institution in Southern Africa”, by Linda Van De Vijver, 2006, ( Siber Ink), p29))  The Universal Declaration of Human Rights of 1948; the International Covenant on Civil and Political Rights of 1966, all declare that everyone in the determination of his civil, political rights and obligations and of any criminal charge preferred against him or her is entitled to a fair hearing by an independent and impartial tribunal established by law.  Focuses on the separation of the judiciary from the executive and legislature  Allows the judiciary to be the supreme interpreting authority of any law made by parliament or legislature  Judicial independence is needed to:  1) Test all other organs of government  2) Interpret constitutional provisions  3) Decide disputes  Botswana's 1966 independence Constitution provides for an independent judiciary. Chapter VI of the Constitution deals with the setting up of the various courts, their jurisdictions and composition, and the appointment and tenure of judges.  It also sets up the Judicial Service Commission, which is the main body which appoints or recommends judges for appointment. While the constitutional provisions have laid down the de jure foundations for judicial independence in Botswana, there are some reservations about the de facto situation, particularly in the area of localizing the superior bench.  The concept of the independence of the judiciary is not a complicated idea. It refers to the ability of a judge or judicial officer to decide a matter free from improper influences. Improper influences might come from sources external to the judiciary, such as another branch of government, or from powerful interest groups within society, or from “public opinion” and or the media. It may also come from colleagues, friends and relatives of a judicial officer (Dingake, 2010)  Any self respecting liberal democracy predicated on the rule of law needs legal and institutional measures to ensure that judges individually are, and the judiciary collectively is, independent from external forces.  Judicial independence also means that judges must be afforded independence from their judicial colleagues, so that only a judge presiding over a case, who has heard the evidence and the arguments, must take a decision on the basis of the application of the law to the facts of the case. The above is often referred as personal independence.  [t]he court defined judicial independence as follows: “…judicial independence involves both individual and institutional relationship: the individual independence of a judge, as reflected in such matters as security of tenure and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationship to the executive and legislative branches of government.”  The court concluded that: “…judicial independence is a status or relationship resting on objective conditions or guarantees as well as a state of mind or attitude in the actual exercise of judicial functions…”  The notion of judicial independence clearly suggests that a judge must not be influenced by any outside sources. In order to avoid such a perception, judges must have no real or apparent contact with any person and or litigant that may reasonably call into question his/her impartiality. If a court or an individual judge is subject to, or even appears to be subject to, inappropriate or improper influence from any person whatsoever, not just the executive or the legislature, then he/she cannot be said to be independent and impartial.  Hogg, correctly puts it, “it is inherent in the concept of adjudication, at least as it is understood in the western world, that the judge must not be an ally or supporter of one of the contending parties”.  See Peter Hogg, the Constitutional law of Canada 3rd ed, (Toronto: Carswell, 1992) p 168  Personal independence of a judicial officer is one of the elements of judicial independence. The concept of personal independence postulates that in the decision making process, judges shall be independent from any influences or pressures from their friends, relatives and colleagues at the bench.  This means that any hierarchical organization of the judiciary and any difference in grade or rank shall in no way interfere with the right of the judge to pronounce his or her judgment freely. Courts in liberal democracies founded on the rule of law, depend on public confidence for their credibility. Citizens will not be willing to submit to the decisions of the judiciary if they perceived that judges are subject to influences and or pressures by their friends, relatives and colleagues.  Another important factor that helps to guarantee independence and impartiality of the courts is the immunity afforded to judicial officers. Judicial officers are not liable to be sued for the legitimate exercise of their powers. It should be obvious that if judges were to be sued for delivering a judgment which was not in accordance with the law, but which the judge believed to be in accordance with the law, the judicial function would be impossible to exercise. However, a judge may be sued if it can be proven that his or her judgment was actuated by malice.  Judicial immunity may be traced to the early 16th century. In an old English case of Floyd v Barker (1607) 77 ER 1305, Lord Coke explained that the significance of judicial immunity lies in ensuring that judicial officers decide disputes before them freely and without fear of adverse consequences that may arise.  In Sirrors v Moore (1975) 1 QB 118, Lord Denning likewise expressed the significance of judicial immunity by stating: “Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: ‘if I do this, shall I be liable in damages?’ p. 136  Some Chief Justices have played a deleterious role in the nefarious battle to undermine judicial independence, thwart judicial accountability and render the rule of law nothing but a pipe dream. Judges are not fully and irreversibly converted in this regard. There is a great need to continue preaching the “gospel” of the independence of the judiciary and the rule of law, especially to judges. People, including members of the judicial and legal professions, tend to forget or become complacent regarding core ethical and judicial virtues.  Thomas S. Masuku J “JUDICIAL INDEPENDENCE AS AN ESSENTIAL ASPECT OF THE RULE OF LAW” Paper presented at the Judicial Colloquium on Working towards a Just, Peaceful and Inclusive Botswana: 50 years of Promoting Rule of Law and Equal Access to Justice, held at Gaborone, Botswana on 11 and 12 April 2016.  Shientag (BL Shientag “The Personality of the Judge” Benjamin N. Cardozo Memorial Lectures (1943) says the following about this internal parasite, so to speak: “The subtlest poison to which a judge may succumb may be from pressure within. Every man craves praise, although some call it recognition. A deep instinct of human nature is the yearning to be appreciated. Within normal limits that craving is not only natural, but desirable. It becomes reprehensible when the judge woos popularity by his decisions, or by his conduct on the Bench.”  When the judiciary is truly independent and it actually upholds the rule of law, this is when government can rule justly for its citizens. As Shientag put it: “There can be no government of law without a fearless, independent judiciary. The independence of the judge is the chief of all cardinal virtues. He must be free from all external influence and subservient only to his conscience.”  The Constitution of Botswana has carefully delineated, and distributed, the powers of the State among the three organs (with a certain amount of overlap), namely the Parliament, the Executive and the Judiciary, in accordance with doctrine of the separation of powers. The Constitution of Botswana guarantees rights to the individuals and the courts are obliged to enforce such rights; the courts further have the constitutional prerogative to singularly define the scope and extent of the power for the other organs according to the law, to which all the organs of the State, and the citizenry, are subservient. Section 3 to 18 of the Constitution deals and confers fundamental human rights and freedoms.  Section 10 of the Constitution provides that any person who is charged with a criminal offence must be afforded a hearing, within a reasonable time, by an independent and impartial court. Sections 10 (1) and 10 (9) are quite similar, though with notable differences; the first deals with criminal cases and the second with civil cases.  Section 10 is material to this discussion and deserves being quoted:  “(10)(1): If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognized by law. (10)(9): Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established or recognized by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.”  Sections 10 (1) and 10 (9) prescribes, interalia, the following conditions: (a) Independence (b) Impartiality (c) Fairness  Although the Constitution does not single out personal independence as an important element of an “ independent and impartial court” there can be no doubt that if the term “ independent” is construed broadly and generously in accordance with the well known canons of constitutional construction it would invariably cover the element of personal independence.  Personal independence is secured, interalia, by security of tenure; decent salary to secure financial independence; irreducible benefits; transparent and objective appointment procedures.  The Constitution of Botswana does not provide for the immunity of judges. Instead the immunity is provided by section 25 of the High Court Act. Section 25 of the High Court Act provides that: “ No judge shall be liable to be sued in any court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not done within the limits of his jurisdiction, nor shall any order of costs be made against him, provided that he at the time in good faith believed himself to have the jurisdiction to do or order the act complained of”.  On close scrutiny it seems clear that the section limits immunity to judicial acts and does not cover administrative acts. In the case of Ngope v O’Brien-Quinn the former Chief Justice was successfully sued by a court Clerk for defamation. The defamatory statement was made by the Chief Justice whilst discharging his functions. Some authorities have expressed concern that the failure to cover administrative functions may constrain judicial officers to perform their judicial functions  See also Justice P.H. Tebutt and Others v Water Engineering (Proprietary) Ltd and 8 Another (2004)1 BLR 241  Judicial officers wield enormous power. In the course of endeavoring to deliver justice to all, judicial officers may ruin lives if their appreciation of the law is inadequate or lacking. Armed with the constitutional power to pass judgment on every aspect of human life, a judicial officer can occasion immense harm, if his or her appreciation of the law is inadequate which is often a feature of unmeritorious appointments. The harm inflicted may be far reaching and enduring