Khama “alone” can appoint Judges – SA Advocate
Government has reiterated that the president Lt. Gen. Dr. Seretse Khama Ian Khama is under no obligation to follow the Judicial Services Commission (JSC) recommendations when appointing Judges of the High Court.
In a packed open Court of Appeal session this week during oral arguments on the Khama versus Law Society of Botswana (LSB) and Omphemetse Motumise case, a South African Advocate, Senior Counsel, Mohammad Anwar Albertins representing Botswana government maintained that, in accordance with the constitution, President Khama alone can appoint a judge and that extends to rejecting a recommendation from the JSC.
Albertins who was engaged by the Attorney General insisted that, “there is no obligation for the president to follow JSC recommendations. Reasons might only be known to him, and he is not forced to state them.” In the matter Law Society of Botswana (LSB) is appealing a High Court judgment in which they were challenging President Khama's decision to reject the appointment of a private attorney Omphemetse Motumise, who was then recommended by the JSC to be an acting judge of the High Court.
The case was then dismissed on 5 February 2016 by a High Court bench consisting of three judges, Justices Lakvinder Walia, Abenigo Tafa and Phadi Solomon. LSB’s pivotal argument was that Khama has no powers to turn down the JSC's recommendations when appointing judges of the High court.
LSB’s borne of contention was also premised on the believe that JSC was acting in line with section 96(2) of the country’s 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.”
However the government attorney Albertins, in the appeal case of the matter on Monday, maintained that the provision does not force the President to appoint as per the JSC’s recommendations. He insisted to a presiding bench of 5 Court of Appeal Judges Monametsi Gaongalelwe, Isaac Lesetedi, Lord Arthur Hamilton, Lord Alistair Abernethy and Jacobus Brand that Khama is and should the ultimate appointing authority.
“The president has a discretion as he is the one who appoints. He alone can take the ultimate decision of who to appoint or not appoint as a judge. He can also review on reason” the Advocate pointed out. He said the disputed section 96(2) of the constitution sets out procedure of appointing. According to Albertins, the synthesis, formulation as well as wording of the section is clear that president only appoints while adding that it means he can also decline an appointment, and then when another recommendation comes he can accept it.
According to Khama, JSC, AG heads of argument seen by Weekend Post, Albertins maintains that the president has the power and discretion under section 96(2) of the constitution, properly construed, to refuse to appoint candidates recommended for appointment by the JSC.
“He has the power and a discretion to refuse to appoint a judge recommended by the JSC,” court papers point out. “Section 96(2) of course requires the president to act in accordance with the JSC’s advice when he appoints judges, but the section does not require him to exercise his power of appointment whenever the JSC advices him to do so. The president retains an independent discretion to determine if and when to exercise that power.”
Albertins further pointed out that had the constitution framers intended the president to have no discretion to refuse to appoint judges recommended for appointment by the JSC, section 96(2) could simply have said that the president “must appoint judges recommended for appointment” (or indeed that the JSC has the power to appoint. Section 96(2) says neither, he added.
He said in the papers that JSC has no physical building, staff or investigative capacity. He highlighted: “whilst it is a standing committee it does not have the power to investigate the background of nominees for appointment to the bench or to verify the truth or accuracy of the information provided by the applicants. Hence whilst candidates may be technically qualified they may still nevertheless not be suitable for appointment to the High Court.”
The papers posit that on the other hand the president has the investigative and advisory powers of the State available to him. “The organs of state at his disposal have the power to investigate the background of individual applicants and to verify the information provided by those applicants. The president may rely on advice of his own cabinet and may consult his own advisors.”
The appellants, LSB, represented by Advocate, Senior Counsel, Alec Freund from the onset differed with the state in terms of interpretation of section 96.2 of the constitution. Freund told court also in an oral submission of arguments session that “JSC selects a judge and the president should just approve. The president approves the judge that JSC has selected.”
He said, what is not in dispute at least is that the “president appoints” while adding that “but” it should be done in line with the recommendation of the JSC. According to Freund, the president should only rubberstamp the decision of the JSC. “President only has the power to say yes and not no. He should just act in instruction from the JSC.”
He maintained that the Executive should have no power in the judiciary so that the arms of government remain independent. “Once the president receives a recommendation from the JSC to appoint someone as a judge he must appoint. Yes he must just appoint. The constitution confers JSC to make the judges appointment.”
In addition LSB, Motumise court papers further point out that the High Court should have adopted the universally settled meaning of the phrase “acting in accordance with the advice of the Judicial Service Commission” in section 96(2), taking into account the provision’s language, history and purpose.
“We submit that the ordinary meaning of the language of section 96(2) was that it imposed a duty on the president to act in accordance with the advice of the JSC by implementing its advice. If he refuses to make the appointment, he cannot sensibly be said to act in accordance with the JSC advice,” Freud stated in the papers.
He said that it is also clear from the history of section 96(2), as with all similarly worded commonwealth constitutions, that it was intended from the outset to vest the effective power appointment of High Court Judges in the JSC. The president’s role was a mere formality, he stated.
The Advocate highlighted that the purpose of the requirement that the president act in accordance with the advice by the JSC is to enhance the independence and standing of the judiciary entrusting the effective power of appointment to the JSC, a non-partisan and independent body of standing.
Another constitution section which was brought into sharp focus was section 47(2) which states that “in the exercise of any function conferred upon him by this Constitution or any other law the President shall, unless it is otherwise provided, act in his own deliberate judgment and shall not be obliged to follow the advice tendered by any other person or authority.”
According to the LSB heads of argument, section 96(2) clearly “provides otherwise” because it says in so many words that the president must act in accordance with the advice of the JSC. The society further stated that when appointments are done as per JSC recommendations, it instills a sense of confidence in the public as far as the independence in the appointment of judges and separation of powers is concerned – both of which are under heavy scrutiny from some quarters in the society.
At the end of the Appeal session, Lord Hamilton, who was sitting in for President of the Court of Appeal Ian Kirby – who was not present for unclear reasons – reserved judgement in the matter adding that it will be communicated in the sands of time.
Meanwhile, after rejecting Motumise to be a High Court judge as per JSC recommendation, Khama then moved swiftly to, instead of him (Motumise), appoint Zein Kebonang who is a twin brother to one of his cabinet minister under his government Sadique Kebonang.
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Nigerians, Zimbabweans apply for Chema Chema Fund
Fronting activities, where locals are used as a front for foreign-owned businesses, have been a long-standing issue in Botswana. These activities not only undermine the government’s efforts to promote local businesses but also deprive Batswana of opportunities for economic empowerment, officials say. The Ministry of Trade and Industry has warned of heavy penalties for those involved in fronting activities especially in relation to the latest popular government initiative dubbed Chema Chema.
According to the Ministry, the Industrial Development Act of 2019 clearly outlines the consequences of engaging in fronting activities. The fines of up to P50,000 for first-time offenders and P20,000 plus a two-year jail term for repeat offenders send a strong message that the government is serious about cracking down on this illegal practice. These penalties are meant to deter individuals from participating in fronting activities and to protect the integrity of local industries.
“It is disheartening to hear reports of collaboration between foreigners and locals to exploit government initiatives such as the Chema Chema Fund. This fund, administered by CEDA and LEA, is meant to support informal traders and low-income earners in Botswana. However, when fronting activities come into play, the intended beneficiaries are sidelined, and the funds are misused for personal gain.” It has been discovered that foreign nationals predominantly of Zimbabwean and Nigerian origin use unsuspecting Batswana to attempt to access the Chema Chema Fund. It is understood that they approach these Batswana under the guise of drafting business plans for them or simply coming up with ‘bankable business ideas that qualify for Chema Chema.’
Observers say the Chema Chema Fund has the potential to uplift the lives of many Batswana who are struggling to make ends meet. They argue that it is crucial that these funds are used for their intended purpose and not siphoned off through illegal activities such as fronting. The Ministry says the warning it issued serves as a reminder to all stakeholders involved in the administration of these funds to ensure transparency and accountability in their disbursement.
One local commentator said it is important to highlight the impact of fronting activities on the local economy and the livelihoods of Batswana. He said by using locals as a front for foreign-owned businesses, opportunities for local entrepreneurs are stifled, and the economic empowerment of Batswana is hindered. The Ministry’s warning of heavy penalties is a call to action for all stakeholders to work together to eliminate fronting activities and promote a level playing field for local businesses.
Meanwhile, the Ministry of Trade and Industry’s warning of heavy penalties for fronting activities is a necessary step to protect the integrity of local industries and promote economic empowerment for Batswana. “It is imperative that all stakeholders comply with regulations and work towards a transparent and accountable business environment. By upholding the law and cracking down on illegal activities, we can ensure a fair and prosperous future for all Batswana.”
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Merck Foundation and African First Ladies mark World Health Day 2024
Merck Foundation, the philanthropic arm of Merck KGaA Germany marks “World Health Day” 2024 together with Africa’s First Ladies who are also Ambassadors of MerckFoundation “More Than a Mother” Campaign through their Scholarship and Capacity Building Program. Senator, Dr. Rasha Kelej, CEO of Merck Foundation emphasized, “At Merck Foundation, we mark World Health Day every single day of the year over the past 12 years, by building healthcare capacity and transforming patient care across Africa, Asia and beyond.
I am proud to share that Merck Foundation has provided over 1740 scholarships to aspiring young doctors from 52 countries, in 44 critical and underserved medical specialties such as Oncology, Diabetes, Preventative Cardiovascular Medicine, Endocrinology, Sexual and Reproductive Medicine, Acute Medicine, Respiratory Medicine, Embryology & Fertility specialty, Gastroenterology, Dermatology, Psychiatry, Emergency and Resuscitation Medicine, Critical Care, Pediatric Emergency Medicine, Neonatal Medicine, Advanced Surgical Practice, Pain Management, General Surgery, Clinical Microbiology and infectious diseases, Internal Medicine, Trauma & Orthopedics, Neurosurgery, Neurology, Cardiology, Stroke Medicine, Care of the Older Person, Family Medicine, Pediatrics and Child Health, Obesity & Weight Management, Women’s Health, Biotechnology in ART and many more”.
As per the available data, Africa has only 34.6% of the required doctors, nurses, and midwives. It is projected that by 2030, Africa would need additional 6.1 million doctors, nurses, and midwives*. “For Example, before the start of the Merck Foundation programs in 2012; there was not a single Oncologist, Fertility or Reproductive care specialists, Diabetologist, Respiratory or ICU specialist in many countries such as The Gambia, Liberia, Sierra Leone, Central African Republic, Guinea, Burundi, Niger, Chad, Ethiopia, Namibia among others. We are certainly creating historic legacy in Africa, and also beyond. Together with our partners like Africa’s First Ladies, Ministries of Health, Gender, Education and Communication, we are impacting the lives of people in the most disadvantaged communities in Africa and beyond.”, added Senator Dr. Kelej. Merck Foundation works closely with their Ambassadors, the African First Ladies and local partners such as; Ministries of Health, Education, Information & Communication, Gender, Academia, Research Institutions, Media and Art in building healthcare capacity and addressing health, social & economic challenges in developing countries and under-served communities. “I strongly believe that training healthcare providers and building professional healthcare capacity is the right strategy to improve access to equitable and quality at health care in Africa.
Therefore, I am happy to announce the Call for Applications for 2024 Scholarships for young doctors with special focus on female doctors for our online one-year diploma and two year master degree in 44 critical and underserved medical specialties, which includes both Online Diploma programs and On-Site Fellowship and clinical training programs. The applications are invited through the Office of our Ambassadors and long-term partners, The First Ladies of Africa and Ministry of Health of each country.” shared Dr . Kelej. “Our aim is to improve the overall health and wellbeing of people by building healthcare capacity across Africa, Asia and other developing countries. We are strongly committed to transforming patientcare landscape through our scholarships program”, concluded Senator Kelej.
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Interpol fugitive escapes from Botswana
John Isaak Ndovi, a Tanzanian national embroiled in controversy and pursued under a red notice by the International Criminal Police Organization (Interpol), has mysteriously vanished, bypassing a scheduled bail hearing at the Extension 2 Magistrate Court in Gaborone. Previously apprehended by Botswana law enforcement at the Tlokweng border post several months earlier, his escape has ignited serious concerns.
Accused of pilfering assets worth in excess of P1 million, an amount translating to roughly 30,000 Omani Riyals, Ndovi has become a figure of paramount interest, especially to the authorities in the Sultanate of Oman, nestled in the far reaches of Asia.
The unsettling news of his disappearance surfaced following his failure to present himself at the Extension 2 Magistrate Court the preceding week. Speculation abounds that Ndovi may have sought refuge in South Africa in a bid to elude capture, prompting a widespread mobilization of law enforcement agencies to ascertain his current location.
In an official communiqué, Detective Senior Assistant Police Commissioner Selebatso Mokgosi of Interpol Gaborone disclosed Ndovi’s apprehension last September at the Tlokweng border, a capture made possible through the vigilant issuance of the Interpol red notice.
At 36, Ndovi is implicated in a case of alleged home invasion in Oman. Despite the non-existence of an extradition treaty between Botswana and Oman, Nomsa Moatswi, the Director of the Directorate of Public Prosecution (DPP), emphasized that the lack of formal extradition agreements does not hinder her office’s ability to entertain extradition requests. She highlighted the adoption of international cooperation norms, advocating for collaboration through the lenses of international comity and reciprocity.
Moatswi disclosed the intensified effort by law enforcement to locate Ndovi following his no-show in court, and pointed to Botswana’s track record of extraditing two international fugitives from France and Zimbabwe in the previous year as evidence of the country’s relentless pursuit of legal integrity.
When probed about the potential implications of Ndovi’s case on Botswana’s forthcoming evaluation by the Financial Action Task Force (FATF), Moatswi reserved her speculations. She acknowledged the criticality of steering clear of blacklisting, suggesting that this singular case is unlikely to feature prominently in the FATF’s assessment criteria.