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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