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Ex UB Vice Chancellor blasts CoA Judges selection

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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Transgender persons in Botswana live a miserable life

23rd November 2020
Transgender persons

An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.

In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.

In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.

Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.

More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.

At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.

The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).

Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).

International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.

In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”

The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”

According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.

In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.

The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.

LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.

“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.

Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.

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Khato Civils fights back, dares detractors

23rd November 2020
Khato-civil

CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”

Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.

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UDC petitioners turn to Saleshando

23rd November 2020
Dumelang Saleshando

About ten (10) Umbrella for Democratic Change (UDC) parliamentary candidates who lost the 2019 general election and petitioned results this week met with UDC Vice President, Dumelang Saleshando to discuss the way forward concerning the quandary that is the legal fees put before them by Botswana Democratic Party (BDP) lawyers.

For a while now, UDC petitioners who are facing the wrath of quizzical sheriffs have demanded audience with UDC National Executive Committee (NEC) but in vain. However after the long wait for a tete-a-tete with the UDC, the petitioners met with Saleshando accompanied by other NEC members including Dr. Kesitegile Gobotswang, Reverend Mpho Dibeela and Dennis Alexander.

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