Botswana has never had proper separation of powers

Botswana has never had a proper separation of powers, former Judge President of the Court of Appeal and one of the country’s most colourful jurists this country has ever had, Dr. Ian Kirby, has observed.

Advancing his argument at the recent gathering dubbed, ‘Candid with Kirby’ organised by the Law Society of Botswana (LSB), Kirby boldly stated that “the main separation is supposed to be between parliament and the executive, but the executive dominates parliament even today and cabinet’s will normally has its way with parliament.”

Kirby said this is in response to a question by event moderator, Justice Mercy Garekwe who had wanted him to clarify the controversy about blurred lines regarding him tossing between the High Court Bench and Attorney General Chambers, in light of separation of powers.

“I think that was probably a valid argument that was put forward,' he said. Further adding that despite the executive dominating others, all members of the executive, judiciary and legislation, take the same oath to uphold the same constitution.

'We are all trying to make Botswana succeed. But you can’t look at the separation of powers as being one particular branch of government trying to retard progress, while another branch is trying to advance it. There has to be a balancing of the three, that is the only way it can work,' he said.

In his response to those who labelled him ‘an executive minded judge’, as well as the fact that he has been closer to the Khama family hence the many appointments, Kirby said “that was never the case”.

He said he was asked to recuse himself in the Gomolemo Motswaledi case because it was said that he had been close to the Khama family and perhaps he would not be able to exercise independence.

'The person who came up and opposed was Daniel Kwelagobe who was a chief protagonist of Motswaledi at the time.'

Speaking on the cases that he presided over and deems to be ground breaking while still at the high court, Kirby said among many judgements, one that comes to his mind is the one where one person challenged that it is his constitutional right to hold a Botswana passport.

He was a BDF soldier that had been refused to renew his national passport because they believed his parents came from Zimbabwe and suspected that he is not a Motswana, but could not prove it as he had already been given a passport before.

'In my judgement I stated that as per the constitution, the right of freedom of movement embodies the right to hold the national passport as well, and right not only to move within Botswana, but to move out of, or into Botswana.'

Another important one that he recalls involved one Moatshe. It was at a time when statutory minimum sentences were introduced for all sorts of crimes, and one of them was robbery.

'The robbery had a wide definition, for example, when a starving street child knocks a delivery man off his bicycle and steals a loaf of bread, in terms of the Act, he was bound to be sentenced to 10 years.

“But, everybody acknowledged that this was not right. So I looked at other countries which had introduced the court constitutional exemption which states that when the facts make it absolutely clear that it will be unconstitutional to deprive him of his liberty for that sort of offence, you can introduce a constitutional exemption.'

He said shortly thereafter, he became Attorney General, and the Penal Code was amended, Section 24 sub section 4 came in which stated that in extreme cases one does not have to impose the minimum sentences anymore.

Kirby does not regret any judgement that he has ever given. However, 'I regretted arguing the Unity Dow case, but I was not part of the bench when the judgement was made.'

The other case was the first Gay rights case.

'I was a member of the bench which stated that acts of homosexuality should not be criminalised because the country is not yet ready for it.

“But, there were a number of reasons for those decisions. I don’t think that I would really change the Kanani case. But, in fact if the case was to come up today, it will certainly have a different outcome.'