Omphemetse Motumise who was the first in list recommended by the Judicial Service Commission (JSC) is awaiting a letter from the JSC or appointing authority inviting him to commence work as High Court Judge in Botswana.
This comes following a matter in which Law Society of Botswana (LSB) was challenging the refusal by President Lt. Gen. Seretse Khama Ian Khama to appoint Motumise as a Judge – as recommended by the empowered JSC. It is understood that during the JSC shortlisted candidates interviewed by the latter, Motumise had the highest score followed by Justice Tapiwa Marumo of the Industrial Court, Sarkodie Mensah who has previously acted as High Court Judge was the third, and the now Acting Judge Justice Zein Kebonang who is a twin brother to one of Khama’s cabinet Ministers Sadique – came last.
However after rejecting Motumise, Khama moved swiftly to appoint Kebonang as Acting High Court Judge – the position he still holds to date. The position fell vacant following the retirement and subsequently departure of Judge David Newman who has since been awarded with the ambassadorial post.
In appointing Motumise, the JSC were said to be acting in terms of section 96.2 of the Botswana constitution which states that “The other Judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.” The JSC is composed of the Chief Justice Maruping Dibotelo who is also Chairman; the President of the Court of Appeal Justice Ian Stuart Kirby; the Attorney-General Athaliah Molokomme (who has since retired); 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.
According to the Court of Appeal Judges; Justices Isaac Lesetedi, Monametsi Gaongalelwe, Lord Hamilton, Jacobus Brand, Alistair Abernethy in a judgement read by Lesetedi this week in Gaborone; he said as a conclusion in the main judgement that in the absence of an explanation by the President (in rejecting Motumise) therefore 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.
JSC, Lesetedi contended that for the transparency purposes, it can decide on whether they want to make interviews for candidates vying for High Court Judgeship in the open and that the court has no right in the absence of a law empowering it to do so. He however highlighted that this may continue to be a debate going forward. Meanwhile the appellants having succeeded partially in the reliefs they sought, each party was ordered to bear its own cost in the appeal.
LSB and Motumise were cited as 1st and 2nd appellants in the matter while President Khama, JSC and AG were cited in papers as 1st, 2nd and 3rd respectively. Appellants were represented by Advocate Alec Freund, Advocate Hephzibah Rajah, Osego Garebamono, Tshiamo Rantao and Tefo Gaongalelwe. On the other side respondents were represented by Advocate Anwar Albertus, Advocate Grant Quixley and Yarona Sharp.
On his part, Rantao of Rantao Kewagamang Attorneys’ who was representing LSB and Motumise (appellants) who are triumphant in their main contention, could not hide his excitement outside court shortly after the judgement. He stated with poise that the CoA decision in his view is “a resounding victory – for the rule of law.” “Its resounding victory for us because the CoA on the main issue which we went to court in the first instances all is in our favour particularly on the interpretation of section 96.2 of the Botswana constitution, all but not entirely” he said.
Rantao however cautioned that: but the results are that if the president is concerned about a person who is recommended by the JSC, for example if he is a national security threat, he must raise his concerns with the JSC through the Attorney General (AG). “The AG as you would know, represent the Executive in particular the president in this case and the JSC. So what it means is that the president cannot now, without giving any reason refuse to accept the recommendation of the JSC.”
He added that in the history of the Court of Appeal, which is the highest court in the land; we had 4 judges writing different opinions arising in many respects in the same results. “But, not just agreeing, not just concurring, 5 out of 5, but differing on how to arrive at the judgement that’s very good that’s what we expect from our CoA and I think that, in that regard, they acquitted themselves very well.” According to the attorney, “so, Mr Motumise is now effectively waiting for a letter from the JSC or any other relevant authority advising him when to take a seat as the Judge of the High Court.”
Government is currently sitting on 4 400 vacant posts that remain unfilled in the civil service. This is notwithstanding the high unemployment rate in Botswana which has been exacerbated by the recent outbreak of the deadly COVID-19 pandemic.
Just before the burst of COVID-19, official data released by Statistics Botswana in January 2020, indicate that unemployment in Botswana has increased from 17.6 percent three years ago to 20.7 percent. “Unemployment rate went up by 3.1 percentage between the two periods, from 17.6 to 20.7 percent,” statistics point out.
Leading commercial bank, First National Bank Botswana (FNBB), expects the central bank to sharpen its monetary policy knife and cut the Bank Rate twice in the last quarter of 2020.
The bank expects a 25 basis point (bps) in the beginning of the last quarter, which is next month, and another shed by the same bps in December, making a total of 50 bps cut in the last quarter. According to the bank’s researchers, the central bank is now holding on to 4.25 percent for the time being pending for more informed data on the economic climate.
An audit of the accounts and records for the supply of food rations to the institutions in the Northern Region for the financial year-ended 31 March 2019 was carried out. According to Auditor General’s report and observations, there are weaknesses and shortcomings that were somehow addressed to the Accounting Officer for comments.
Auditor General, Pulane Letebele indicated on the report that, across all depots in the region that there had been instances where food items were short for periods ranging from 1 to 7 months in the institutions for a variety of reasons, including absence of regular contracts and supplier failures. The success of this programme is dependent on regular and reliable availability of the supplies to achieve its objective, the report said.
There would be instances where food items were returned from the feeding centers to the depots for reasons of spoilage or any other cause. In these cases, instances had been noted where these returns were not supported by any documentation, which could lead to these items being lost without trace.
The report further stressed that large quantities of various food items valued at over P772 thousand from different depots were damaged by rodents, and written off.Included in the write off were 13 538 (340ml) cartons of milk valued at P75 745. In this connection, the Auditor General says it is important that the warehouses be maintained to a standard where they would not be infested by rodents and other pests.
Still in the Northern region, the report noted that there is an outstanding matter relating to the supply of stewed steak (283×3.1kg cans) to the Maun depot which was allegedly defective. The steak had been supplied by Botswana Meat Commission to the depot in November 2016.
In March 2017 part of the consignment was reported to the supplier as defective, and was to be replaced. Even as there was no agreement reached between the parties regarding replacement, in 51 October 2018 the items in question were disposed of by destruction. This disposal represented a loss as the whole consignment had been paid for, according to the report.
“In my view, the loss resulted directly from failure by the depot managers to deal with the matter immediately upon receipt of the consignment and detection of the defects. Audit inspections during visits to Selibe Phikwe, Maun, Shakawe, Ghanzi and Francistown depots had raised a number of observations on points of detail related to the maintenance of records, reconciliations of stocks and related matters, which I drew to the attention of the Accounting Officer for comments,” Letebele said in her report.
In the Southern region, a scrutiny of the records for the control of stocks of food items in the Southern Region had indicated intermittent shortages of the various items, principally Tsabana, Malutu, Sunflower Oil and Milk which was mainly due to absence of subsisting contracts for the supply of these items.
“The contract for the supply of Tsabana to all depots expired in September 2018 and was not replaced by a substantive contract. The supplier contracts for these stocks should be so managed that the expiry of one contract is immediately followed by the commencement of the next.”
Suppliers who had been contracted to supply foodstuffs had failed to do so and no timely action had been taken to redress the situation to ensure continuity of supply of the food items, the report noted.
In one case, the report highlighted that the supplier was to manufacture and supply 1 136 metric tonnes of Malutu for a 4-months period from March 2019 to June 2019, but had been unable to honour the obligation. The situation was relieved by inter-depot transfers, at additional cost in transportation and subsistence expenses.
In another case, the contract was for the supply of Sunflower Oil to Mabutsane, where the supplier had also failed to deliver. Examination of the Molepolole depot Food Issues Register had indicated a number of instances where food items consigned to the various feeding centres had been returned for a variety of reasons, including food item available; no storage space; and in other cases the whole consignments were returned, and reasons not stated.
This is an indication of lack of proper management and monitoring of the affairs of the depot, which could result in losses from frequent movements of the food items concerned.The maintenance of accounting records in the region, typically in Letlhakeng, Tsabong, and Mabutsane was less than satisfactory, according to Auditor General’s report.
In these depots a number of instances had been noted where receipts and issues had not been recorded over long periods, resulting in incorrect balances reflected in the accounting records. This is a serious weakness which could lead to or result in losses without trace or detection, and is a contravention of Supplies Regulations and Procedures, Letebele said.
Similarly, consignments of a total of 892 bags of Malutu and 3 bags of beans from Tsabong depot to different feeding centres had not been received in those centres, and are considered lost. These are also not reflected in the Statement of Losses in the Annual Statements of Accounts for the same periods.