19 Jul 2023

Dr Ian Kirby belongs to an exclusive club of individuals who have sat on both sides of the court: as a state counsel, private attorney, and judge. 

At a recent public lecture organised by the Law Society of Botswana, the retired President of the Court of Appeal reminisced on a 50-year career that, like the man’s life itself, had a modest beginning. 

The island of Tristan da Cunha lies halfway between Africa and South America in the middle of the Atlantic Ocesn. Seventy-eight years back, its inhabitants – amongst whom was a young South African couple – probably felt the place was, in the middle of nowhere, which it actually was. 

The couple had been posted to the island to work as meteorologists as the Second World War drew to a close. The year the war ended, 1945, the couple welcomed a son, and christened him Ian Stuart, both names a nod to his paternal grandfather’s Scottish roots. 

When the war was won, the young parents had to wait until the baby was old enough to travel safely by sea. They then took a steamer to Cape Town. In South Africa, the older Kirby pursued a musical career as a kettle drummer and later became the first professor of music at Wits University. 

He then quit teaching to pursue a diploma in agriculture at Potchefstroom College of Agriculture. In 1949, with the young Kirby aged 4, the couple migrated to the then Southern Rhodesia (present-day Zimbabwe) armed only with the agricultural diploma which they believed would see them through a new beginning. 

Life in Rhodesia was comfortable, yet very simple. “We lived in roundavel houses, dug a toilet outside and fetched water from the river,” he said. Primary education in Bulawayo was followed by high school in Plumtree, then law studies at Rhodes University on a Rhodesian government scholarship. 

He had been drawn to law because it seemed close to some of his interests, such as drama – and he thought, as most people still view the profession, that it was a doorway to making a lot of money. 

Knowing what he knows now, he holds that the latter is not always the case. “I thought it was a career that would allow me to safely raise a family, be financially self-sufficient, and help other people,” he said. South Africa of the 1960s was a political hotbed. 

Following the banning of the liberation movements in 1962, a tide of anti-apartheid fervour spilt into the country’s different campuses. Kirby was caught up in the spirit of the times, and his activism brought him into the radar of the authorities. 

Deemed a threat by the apartheid regime, in 1968 he was expelled from South Africa. Luckily, he had just completed his studies. He remained a banned person from South Africa for 13 years, and he could not even attend his graduation. 

In 1969, after responding to job adverts, he was invited for interviews in Malawi and Botswana. He preferred Botswana since it was nearer to home. The interview was held at President’s Hotel before a panel made up of chairman of the Public Service Commission (PSC) the late Duplaix Pilane and the then Deputy Attorney General J.K. Havers. “I explained to the panel that I only had enough money for one night at the hotel and for one way on the train and if I didn’t get the job I would be hiking back to Southern Rhodesia,” he remarked. 

He was immediately employed as assistant state counsel stationed in Lobatse. He reported for work the following day. After two years, Kirby naturalised to become a citizen of Botswana. He later opened the first citizen-owned law firm in Gaborone. 

At the time, there were no resident private attorneys. Legal services were accessed from law firms in Mafikeng, and they would occasionally send lawyers to attend cases in Botswana. After years in private practice, Dr Kirby retraced his footsteps back to the Attorney General’s Chambers to be Deputy Attorney General (Civil). 

It was in this capacity that he became involved in one of the landmark cases that ever came before the Botswana courts. In 1984, Parliament had amended the Citizenship Act, and one of its effects was to withhold Botswana citizenship at birth to children born to local women married to men of different nationality. 

A practicing attorney married to a United States citizen, Unity Dow challenged the constitutionality of the Act in a case she lodged in 1991. She argued that it discriminated against her on the basis of gender because it denied her the right to automatically pass her Botswana citizenship to her young children. It was what came to be colloquially known as the Dow Case. 

Appearing for the state, Kirby argued that under both the Roman-Dutch Law and Tswana Customary Law, the father was head of the family, and took precedence over the mother in a patrilineal setup; therefore the Citizenship Act was constitutional. High Court Judge Martin Horwitz ruled in Dow’s favour, and declared the contested provisions of the Citizenship Act to be unconstitutional. 

The Attorney General appealed and the full bench of the Court of Appeal upheld the High Court ruling in a 3-2 split decision handed down in 1992. Effectively, the Court of Appeal held that the Constitution demanded equal rights for women and struck down the gender-discriminatory sections. Parliament then amended the law to comply with the ruling of the courts. Dr Kirby looks at that case as a turning point for women’s rights in Botswana. 

“Ever since, the courts, including my court, and the legislature, have upheld gender equality,” he said. While he had no regrets from his colourful career, Dr Kirby believed he could have done better in the Dow Case. 

He took questions from the audience, including from someone whose path almost mirrors his own, Court of Appeal Judge Mercy Garekwe, who asked Dr Kirby to address some of the controversies elicited by some of his official appointments, such as when he was appointed Attorney General. 

He had been serving on the High Court bench when President Dr Festus Mogae tapped him for the vacant post of Attorney General after the retirement of Mr Phandu Skelemani. Interestingly, Dr Kirby said t he had no ambition for job. 

He said he had been reluctant to accept the offer until he was persuaded by the then Vice President, Lt. General Dr Seretse Khama Ian Khama who argued that it was a call to national duty which he had to honour. 

He went on to hold fort for a little under two years. His mission at AG’s Chambers was threefold: restructure the office, help pilot through legislation to make the Constitution tribally neutral which resulted in the referendum of 2005, and – finally – identify a successor who would be acceptable to both President Mogae and Vice President Khama because according to the Constitutional dispensation the vice president automatically ascends to the presidency. 

By the time he was reappointed to the bench, he felt he had achieved all the three tasks. He said the 2005 Constitutional Amendment Act was passed, resulting in two things. Firstly, it removed tribal connotations from the Constitution. 

It also restructured the Attorney General’s Chambers with the result that the Attorney General ceased to sit in Parliament as an ex-officio member. In addition, the prosecutorial powers were transferred to the Directorate of Public Prosecutions (DPP) which was to be an independent institution. 

Finally, he did find a successor in another High Court Judge Dr Athalia Molokomme – a choice he thought was well considered. When addressing an observation expressed about him by some legal commentators that he tended to be an “executive minded judge”, Dr Kirby said the view was not true.He gave the example of when he wanted to recuse himself from the case in which the late Gomolemo Motswaledi brought against the Botswana Democratic Party (BDP). 

He sought to do this, he explained, because he was perceived to have close ties to the Khama family (and Lt. General Dr Khama was BDP leader at the time). 

“Daniel Kwelagobe defended my position insisting that I will be a fair Judge,” he said. Such a vote of confidence from someone known to have been Mr Motswaledi’s ally led Dr Kirby to decide to hear the case. 

One of the ground-breaking judgments he recalled when he was at the High Court was the one that established the constitutional right to hold a national passport. It involved a soldier who had been refused a national passport because it was believed that his parents originated from Zimbabwe and as a result he was not a Motswana. 

In assessing the case, Dr Kirby said he looked at the Constitution thoroughly and arrived at a conclusion that “the right of freedom of movement embodies a right to hold a national passport as well; so he (applicant) must be accorded the right to move within, out of and into Botswana”. 

He also contributed to the decision that led to amendment of the Penal Code to decriminalise same-sex relationships whose genesis was a case brought by Letsweletse Motshidiemang, a gay student at the University of Botswana, who had applied to the High Court for an order declaring sections of the Penal Code which criminalised homosexual sex to be unconstitutional. 

The High Court as per Judge Michael Leburu, Judge Abednego Tafa and Judge Jennifer Dube held in Motshidiemang’s favour. 

The Attorney General appealed, and the full bench of the Court of Appeal led by Dr Kirby upheld the High Court judgment, and struck down sections 164[a] and 164[c] of the Penal Code as unconstitutional. Dr Kirby received a Presidential Honour in 2015, and an honorary Doctor of Laws (LLD) from the University of Botswana last year.

His advice to young legal minds is: “treat every client's case as if it was your first case. 

Lawyers must also to research each case thoroughly because judges only consider what is on record. Dr Kirby is now working on his memoirs. Quick Facts about Dr Kirby:  He has been married for 52 years.

He has one sister He listens to light opera and classical music He watches news on Btv, CNN and BBC He describes himself as a Motswana, idealist and a hard worker. 

He counts Nelson Mandela among the people he admired in his youth. Ends