Ex UB Vice Chancellor blasts CoA Judges selection
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Former Vice Chancellor of the University of Botswana (UB), Professor Bojosi Otlhogile has stated that Botswana’s model of selection of High Court and Court of Appeal Judges leaves a lot to be desired.
According to the Professor of Law, it matters “who our judges are” and that “it follows then that how they are selected and who selects them matters”. Judges are selected by a sitting president – in this case by the incumbent President Lt. Gen. Dr. Seretse Khama Ian Khama in accordance with the recommendation of the Judicial Service Commission (JSC) as per section 96 (2) of the Botswana constitution. The said section states that “the other judges of the High Court shall be appointed by the President, acting in accordance with the advice of the JSC.”
The said section of the constitution <96 (2)>has attracted a sharp contrast and has been a subject of scrutiny and interpretation by the Court of Appeal panel recently in a matter in which Law Society of Botswana (LSB) was appealing a case in which they were querying the rejection of Senior Counsel Omphemetse Motumise by Khama despite being recommended by the JSC to be a High Court Judge.
A draft academic research paper by Professor Otlhogile seen by Weekend Post this week titled “selecting Judges: constitution, power and accountability,” to be published soon, the law guru takes swipe at the Court of Appeal Judges saying they have, in their judgement, explained the interpretation of the contentious section in such a simple way that it is no longer correct or true.
According to the said judgement, the Court of Appeal Judges; Justices Isaac Lesetedi, Monametsi Gaongalelwe, Lord Hamilton, Jacobus Brand, Alistair Abernethy said in a ruling read by Lesetedi that a conclusion in the main judgement that in the absence of an explanation by the President, in rejecting Motumise, his decision stands to be reviewed and set aside.
“For that reason therefore this ground of appeal is upheld and the President’s refusal to act on the recommendation of the JSC for the appointment of 2nd appellant (Motumise) as a Judge of the High Court is set aside,” all the Judges stated in the conclusion of the final judgement, although they had 4 separate judgement for the first time in the history of Botswana.
While they were all in agreement, Justice Gaongalelwe differed with them only on the proper interpretation of phrase in section 96.2 that “shall be appointed by the President acting in accordance with the advice of the JSC.” He said it depends in the regime of a particular country and the context in light of other provisions of the constitution. “I am in agreement with the conclusion of the court a quo that in this matter the phrase simply means that the president is not to appoint a person who has not been recommended by the JSC,” Gaongalelwe stated.
In light of the judgement, the ex-UB Vice Chancellor, who is also a Professor of Law in the highest institution of learning’s Law department, in his academic paper said that we have to accept that views may differ about the answer to many legal cases, and that it is comparatively rare for judges who heard a case to reach conclusion for the same reason.
Therefore, “I conclude by arguing that the majority decision of the Court of Appeal (judges) may have oversimplified an otherwise vexed question of the interpretation of the provision of the Constitution,” he stated in the research paper to be released soon. He continued to point out that in the case of Botswana, part VI of the Constitution section 96 and 101 on Chief Justice (CJ) and Judge President (JP), respectively, are crystal clear and not ambiguous on their selection (appointment). Section 96 (1) states that “the Chief Justice shall be appointed by the President.”
The Law Professor stated that the duo (JP and CJ) there is “no dispute appointed by the President.” But when it comes to other judges he said, consider other judges, the distinction is blurred with regard to the section 96 (2). In light of the contentious section Otlhogile pointed out that “section 96 (2) – made three changes -i.e. CJ is replaced by other judges of the High Court. It introduced a comma in the place of a full stop and it extended the sentence.”
The professor had many questions that he promised to address in the upcoming academic paper including “why is it (section 96 (2) not conveying same meaning that the President appoints? Justice Lesetedi says turns around “shall” and “appoint.” Shall be appointed by the President – no other? Is the comma syndeton or asyndeton? Is the President bound by the recommendation or does he have discretion? Bound but has limited discretion – exceptions where he is not bound? Fear where exceptions longer the principle.”
The UB lecturer continued to punch holes on the Motumise CoA judgement (which was led and read by Justice Lesetedi): “Lesetedi’s handling of JSC – does he refer to it as one body or collection of individuals?” he wondered. In terms of the issue of national security, he asked whether it is shared in confidence while wondering whether a secret shared with 6 people (in JSC) is still a secret. Otlhogile stated that Khama’s role (rise of presidency) in the selection of judges is both Executive and Ceremonial in his judgement.
According to the UB Professor of Law; with regard to History of Constitutional conference he agrees with reference to it but have different meaning and order of events. “Is the task of the court to decide what the framers meant/intended or what the section means? If the latter, no place for history.” He also submitted that the “Legislative history can help us to determine whether the difficulty in applying the section results from an unfortunate choice of statutory language chosen to effectuate a legislative goal that becomes clearer once one investigates the matter.”
Since independence he said Botswana has followed two models in selection of judges which are ‘tap on the shoulder’ until recently when move to variant of so called ‘merit-based system.’ The Professor said early years the appointment based on provisions of the Constitution – relied largely on expatriates – colonial officers – United Kingdom (UK) process with regard to the tap on the shoulder. He highlighted that, following into lately Motumise matter, the first case when a recommendation by JSC was rejected by a President was under Sir Seretse Khama’s (the father of the incumbent).
“May be this was the first case of rejection of JSC advice (under) President Sir Seretse Khama (who did not give) JSC reasons for declining (the JSC recommendation) including the very basis for appointment – to reconsider.” He said to add salt to injury some sources were in the habit of discounting others and gave an example that a certain candidate for the Judgeship was said had taken to drinking too much, in which he was declined (on that basis) – but allegations which later were found unfounded.
This he said therefore turned out to be unfair to the potential Judge rejected despite the recommendation by the JSC. Currently, the JSC is composed of the Chief Justice Maruping Dibotelo (Chairman); the President of the Court of Appeal Justice Ian Stuart Kirby; the Attorney-General Abraham Keetshabe; the Chairman of the Public Service Commission; and a member of the Law Society nominated by the Law Society; as well as a person of integrity and experience not being a legal practitioner appointed by President Khama.
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ENVIRONMENT ISSUES: Masisi asks Virginia for help
President Mokgweetsi Masisi says the issue of sustainable natural resources management has always been an important part of Botswana’s national development agenda.
Masisi was speaking this week on the occasion of a public lecture at Virginia Polytechnic, under theme, “Merging Conservation, Democracy and Sustainable Development in Botswana.”
Botswana, according to Masisi, holds the view that the environment is fragile and as such, must be managed and given the utmost protection to enable the achievement of Sustainable Development Goals (SDGs).
“It is necessary that we engage one another in the interchange of ideas, perspectives, visualizations of social futures, and considerations of possible strategies and courses of action for sustainable development,” said Masisi.
On the other hand, dialogue, in the form of rigorous democratic discourse among stakeholders presents another basis for reconfiguring how people act on their environments, with a view to conserving its resources that “we require to meet our socio-economic development needs on a sustainable basis,” Masisi told attendees at the public lecture.
He said government has a keen interest in understanding the epidemiology and ecology of diseases of both domestic and wild animals. “It is our national interest to forestall the dire consequences of animal diseases on our communities livelihoods.”
President Masisi hoped that both Botswana and Virginia could help each other in curbing contagious diseases of wildlife.
“We believe that Virginia Tech can reasonably share their experiences, research insights and advances in veterinary sciences and medicines, to help us build capacity for knowledge creation and improve efforts of managing and containing contagious diseases of wildlife. The ground is fertile for entering into such a mutually beneficial partnership.”
When explaining environmental issues further, Masisi said efforts of conservation and sustainable development might at times be hampered by the emergence and recurrence of diseases when pathogens mutate and take host of more than one species.
“Water pollution also kills aquatic life, such as fish, which is one of humanity’s much deserved sources of food. In this regard, One Health Approach imposes ecological responsibility upon all of us to care for the environment and the bio-diversity therein.”
He said the production and use of animal vaccines is an important space and tool for conservation, particularly to deal with trans-border animal diseases.
“In Botswana, our 43-year-old national premier pharmaceutical institution called Botswana Vaccine Institute has played its role well. Through its successful production of highly efficacious Foot and Mouth vaccines, the country is able to contain this disease as well as supply vaccines to other countries in the sub-region.:
He has however declared that there is need for more help, saying “We need more capacitation to deal with and contain other types of microbial that affect both animals and human health.”
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Masisi saddened by deaths of elephant attacks
President Mokgweetsi Masisi has expressed a strong worry over elephants killing people in Botswana. When speaking in Virginia this week, Masisi said it is unfortunate that Batswana have paid a price with their own blood through being attacked by elephants.
“Communities also suffer unimaginable economic losses yearly when their crops are eaten by the elephants. In spite of such incidents of human-elephant conflict, our people embrace living together with the animals. They fully understand wildlife conservation and its economic benefits in tourism.”
In 2018, Nthobogang Samokwase’s father was attacked by an elephant when travelling from the fields, where he stayed during the cropping season.
It was reported that the man couldn’t run because of his age. He was found trampled by the elephant and was pronounced dead upon arrival at the hospital.
In the same year, in Maun, a 57-year-old British woman was attacked by an elephant at Boro and died upon arrival at the hospital. The woman was with her Motswana partner, and were walking dogs in the evening.
Last month, a Durban woman named Carly Marshall survived an elephant attack while on holiday in the bush in Botswana. She was stabbed by one of the elephant’s tucks through the chest and was left with bruises. Marshall also suffered several fractured ribs from the ordeal.
President Masisi Botswana has the largest population of African elephants in the world, totaling more than 130 000. “This has been possible due to progressive conservation policies, partnerships with the communities, and investment in wildlife management programmes.”
In order to benefit further from wildlife, Masisi indicated that government has re-introduced controlled hunting in 2019 after a four-year pause. “The re-introduction of hunting was done in an open, transparent and democratic way, giving the communities an opportunity to air their views. The funds from the sale of hunting quota goes towards community development and elephant conservation.”
He stressed that for conservation to succeed, the local people must be involved and derive benefits from the natural resources within their localities.
“There must be open and transparent consultations which involve all sectors of the society. It is against this backdrop that as a country, we lead the continent on merging conservation, democracy and sustainable development.”
Masisi stated that Botswana is open to collaborative opportunities, “particularly with identifiable partners such as Virginia Tech, in other essential areas such as conservation, and the study of the interplay among the ecology of diseases of wild animals and plants, and their effects on human health and socio-economic development.”
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Gov’t commit to injecting more funds in fighting HIV
Minister for State President Kabo Morwaeng says government will continue to make resources available in terms of financial allocations and human capital to ensure that Botswana achieves the ideal of eradicating HIV and AIDS as a public health threat by 2030.
Morwaeng was speaking this morning in Gaborone at the High-Level Advocacy event to accelerate HIV Prevention in Botswana. He said the National AIDS and Health Promotion Agency (NAPHA), in partnership with UNAIDS, UN agencies, the Global Fund and PEPFAR, have started a process of developing transition readiness plan for sustainability of HIV prevention and treatment programmes.
“It is important for us, as a country that has had a fair share of donor support in the response to an epidemic such as HIV and AIDS, to look beyond the period when the level of assistance would have reduced, or ceased, thus calling for domestic financing for all areas which were on donor support.”
Morwaeng said this is important as the such a plan will guarantee that all the gains accrued from the response with donor support will be sustained until the end when “we reach the elimination of HIV and AIDS as a public health threat by 20230,” he said.
“I commit to continue support efforts towards strengthened HIV prevention, accentuating HIV primary prevention and treatment as prevention towards Zero New Infections, Zero Stigma, Discrimination and Zero AIDS related death, to end AIDS in Botswana.”
He reiterated that government commits to tackle legislative, policy and programming challenges that act as barriers to the achievement of the goal of ending AIDS as a public health threat.
In the financial year 2022/2023, a total of 119 Civil Society Organizations, including Faith Based Organizations, were contracted with an amount of P100 million to implement HIV and NCDs prevention activities throughout the country, and the money was drawn from the Consolidated Fund.
Through an upcoming HIV Prevention Symposium, technical stakeholders will use outcomes to develop the Botswana HIV Prevention Acceleration Road Map for 2023-2025.
Morwaeng stated that government will support and ensure that Botswana plays its part achieving the road map. He said there is need to put hands on the deck to ensure that Botswana sustains progress made so far in the fight against HIV and AIDS.
“There are tremendous achievements thus far to, reach and surpass the UNAIDS fast track targets of 95%- 95%- 95% by the year 2025. As reflected by the BAIS preliminary results of 2021, we now stand at 95- 98- 98 against the set targets.”
“These achievements challenge us to now shift our gears and strive to know who are the remaining 5% for those aware of their HIV status, 2% of enrolment on treatment by those aware of their status and 2% of viral suppression by those on treatment.”
Explaining this further, Morwaeng said shift in gears should extend to coming up with robust strategies of determining where these remaining people are as well as how they will be reached with the necessary services.
“These are just some of the many variables that are required to ensure that as a country, we are well positioned to reaching the last mile of our country’s response to the HIV and AIDS pandemic.”