Not so many years ago, our Court of Appeal bench was dominated by white male foreign judges. Whilst this affair may have been acceptable or tolerable in those years with time the notion of a Republic with its highest court dominated by white foreign judges became troublesome and unacceptable. It was not troublesome and unacceptable that the judges were per se foreigners – it was troublesome that the judges were all foreigners; it was not troublesome and unacceptable because the foreign judges were white per se; it was unacceptable and troublesome that black judges were few (just two in my recollection – Justice Twum and Justice Ramodibedi (Lesotho/Swaziland).
It was troublesome and unacceptable because that affair implicitly accused the many local senior attorneys and High Court judges of incompetence to sit and adjudicate the laws of their country – troublesome and unacceptable because the perpetuation of such a policy contradicted the notion of an independent Republic that was not under the garb of colonialism – troublesome and unacceptable for it opened the door to corruption and judicial manipulation – we could not know the activities of these judges when in their own countries. The Court of Appeal was in essence a foreign court in the apparel of a domestic one – not very different from when the Judicial Committee of the Privy Council in the United Kingdom, its successor.
In 2010, two years in his office, President Ian Khama appointed Ian Kirby the Judge President of the Court of Appeal, making him the first citizen to be appointed a judge and a judge President of the Court of Appeal. It had taken Botswana 44 years to appoint one citizen to its Court of Appeal. This was then followed by the appointment of Justice Lesetedi, Justice Gaongalelwe and the late Justice Legwaila – death was unfair to cut his time short – having intelligently adjudicated under “equity” at the Industrial Court – his expertise was evidently a necessity at the Court of Appeal. For these appointments, President Ian Khama must be applauded.
With local judges on the bench one is assured that the judgments will reflect the local conditions and ethos of Batswana – one was never at peace that all foreign judges knew and understood such aspects. In one case, a local attorney who was handling a threat to kill appeal was worried that the judges would not quite understand and appreciate the very many senses that Batswana use the phrase “ke tla go bolaya.” The day was saved by the fact that the Judge President was part of the bench. The Court of Appeal’s decision in State v. Kanane, where the majority was foreign judges, and the decision was that Batswana were not ready to accept homosexuals in their society is laughable and will anger me for the remaining days of my life. In human affairs, the feeling of hatred towards others is dangerous –I do not know it means to hate an inanimate in the magnitude that I hate the decision in Kanane.
One never knows if and when there is a vacancy at the Court of Appeal – the vacancies are not advertised and the appointments are done in secrecy with the members of the public never knowing who the candidates are – like the illuminati – a situation that all men of good senses will know is wrong. But with the passing of Justice Legwaila – and it is unfortunate that we must learn of vacancies through death – one can be certain that there is, officially, a vacancy.
If President Khama appoints a female judge to the Court of Appeal, he will have added a credit to his legacy bank. Justice Dow ( as she then was) is the first female to be appointed a judge in Botswana. There are now about six judges at the High Court and about two at the Industrial Court. Botswana has never had a female judge at the Court of Appeal. It is not appropriate that the bench should be reduced into an exclusive arrangement for males. It has been six years since a citizen male judge was appointed to the bench, it is now time to appoint a female judge to the Court of Appeal. There are competent senior females that qualify for the job.
The life of Lady Ruth Khama, President Ian Khama’s mother, is enough proof that women can also competently do trades which men can do. During the Second World War, she left Eltham high school to join the Women’s Auxiliary Air Force, served as an ambulance driver and work at an emergency landing station at Beachy Head. If this cannot convince President Ian Khama to appoint a female judge to the Court of Appeal, there is nothing that will.