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Lawyers demand changes at Court of Appeal

Publishing Date : 16 February, 2015

Author : FRANCINAH BAAITSE


There are fresh calls on Chief Justice, Maruping Dibotelo to amend the Court of Appeal rules so as to align them to those of the High Court. Lawyers believe this will be a final act to curb suspected forum shopping for that perceived “right ruling”.


The pressure is projected specifically by the Law Society of Botswana, which is concerned that Judge President, Ian Kirby is solely responsible for allocating cases to other judges unlike at the High Court where cases are automatically allocated to the next available judge through the central Case Management System.


In fact the Law Society chairperson, Lawrence Lecha has publicly challenged Dibotelo to change the rules of the Court of Appeal if he is to do away with the alleged forum shopping.


“Given the importance of perception and central role of the court of Appeal, the society’s position as stated at this forum last year, is that the practice that obtains in the High Court should apply to the Court of Appeal,” Lecha remarked during the official opening of this year’s legal year in Gaborone.


Last year the Chief Justice expressed displeasure at the worrying practice of forum shopping that was apparently being applied in the High Court and vowed to amend the law to reduce  if not eliminate altogether such incidents.


The unpopular remark by Dibotelo led to animosity within the Judiciary but however led to serious engagement on the matter. As part of that discussion allocation of cases at the High court through automated system, case Management System, was promoted as a primary tool that was introduced to avoid forum shopping.


In order to achieve that, Dibotelo amended the rules of the High court to make withdrawal of cases more difficult once allocated to the judge.


He particularly changed the rules through Statutory Instrument number twenty-two of 2014 to provide in particular that a Party cannot register a cause of action at more than one High Court Registry and that a cause once registered may not be withdrawn without leave of the judge to whom it has been allocated.


Although Dibotelo is hopeful that the amendment would go a long way in eliminating the “shameful and dishonourable practice”, the law society is of the view that he had applied double standards as he failed to do the same for the Court of appeal.


“With all those measures having been put in place in a bid to do away with forum shopping, it is of concern that the Court of Appeal allocation of cases is not automated. Quite to the contrary, the rules of the court of Appeal unequivocally provide that the judge President of the Court of Appeal is single-handedly tasked with allocating matters to the Justices of Appeal,” Lecha added.


Lecha made the remarks four days before the Court of Appeal issues judgements for its January session. Among the pending judgments were cases that bother on the country’s constitution including powers of the country’s President who personally appoints the Judge President.


 “Perceptions are that judges do favour certain people and if rules are to be amended, there would be no justification for such perceptions,” Lecha stated in a brief interview on the sidelines.


The other concern raised by Lecha is that unlike the appoint of the High Court Judges and Magistrates, the appointment of the Court of Appeal Judges is not advertised and is shrouded in such secrecy that even the society which is represented at the Judicial Service Commission is sometimes faced with considering a candidate without the background of how the application came about.


“Whilst the Society commends the JSC for the improvements in the Approach, it can be hijacked by anyone at anytime for personal benefit. This lack of certainty and other outstanding matters as raised in the society’s position paper continue to be addressed with the JSC,” Lecha explained further.


Such an approach according to Lecha impacts negatively on perceptions of the independence of the court and the image of the country’s judicial system.

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