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4 Court of Appeal Judges “separately” rule against Khama

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.”

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Khan: Boko, Masisi are fake politicians

18th January 2021
Masisi & Boko

While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.

Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.

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Ookeditse rejects lobby for BPF top post

18th January 2021
LAWRENCE-OOKEDITSE

Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.

Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.

Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”

“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.

He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.

He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.

According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.

There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.

Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.

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BDP cancels MPs retreat

18th January 2021
President Masisi

Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.

“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication.
The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.

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