When an institution declines to abide by basic dictates of fairness, good governance and transparency, and instead insists on operating under a veil of darkness, like a wicked society, supplying no valid excuse to justify its compulsion to doing things in the dark, one is naturally bound to be suspicious – to think that the institution is hiding something – to think that there are impure motives and possibly corruption, all of which thrive in the darkness of the night when nobody is there to see. This cannot bode well for an institution of justice, which, as all know, survives on public trust and confidence.
It is the Court of Appeal that operates in this matter.
Out of the many wrongs, sins and other ugly things one can think of about the Court of Appeal, the one that disgusts one’s mind is that the appointment of judges, these unelected men, is done in complete secrecy – like we do when we hang convicted murders on the neck until they die.
We, the people of Botswana, possess no knowledge of how these men are approached, we do not know who approaches these men, and we have not been informed of the criteria of selection that he who approaches these men uses to choose.
In a Court of Appeal that consists of foreign judges as the majority the local attorneys who might be interested in the job do not even get to know when there is a vacancy – like any other mortal, they wake up to the appointment of a foreign judge on their bench like their forefathers did many years ago during colonization. This is a distasteful state of affairs.
It is distasteful because the transparency rule only applies to the High Court. When judges of the High Court are recruited the posts are advertised – those interested get to see the adverts Because of localization at the High Court it is as if this measure is designed for locals. Those appointed at the Court of Appeal, the majority of whom are foreigners, are not expected to answer to public invitations, rather for them, the treatment that befits them is private invitation.
It gets even more bizarre. In terms of the law, judges of the High Court are also judges of the Court of Appeal. This means there are instances when those appointed by public invitation seat with those appointed by private treaty. There exists no satisfactory reason for treating these two courts differently.
Not so long ago, a justification for this differential treatment was proffered. I gathered that it worried the Judge President that extending the same treatment to candidates of the Court of Appeal judges is likely to politicize the process of appointing judges. Obviously, considered from all angles, this is not sound reasoning. First, making the appointment process transparent at the High Court has not politicised the process. Second, operating under the veil of darkness is what politicises the appointment through its baseless discrimination and providing an opportunity for favours and other corrupt ills. All Batswana who qualify to serve as justices of appeal are entitled to be invited to apply. If not, then we should be told that the Court of Appeal is a private society because public bodies don’t operate like that.