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.
Presidential Commission of Inquiry into the Review of the Constitution held a meeting in Serowe this week. The meeting was to accord Bangwato, just like other tribes, a platform to give their opinions, contributions and what they think is the horse power and limitations of the current Constitution of Botswana.
Bangwato Regent, Kgosi Serogola Seretse said, he is of the understanding that the Commission has not come for anything apart from getting their opinions on how things could be made better. His contribution was that he solely knows of only two social positions in the world; Dikgosi and Pastors. He said other positions are just benedictions. He further urged that, Batswana should respect God’s ordained protocols such as Dikgosi and Pastors.
Seretse pointed out the importance of acknowledging and appreciating Dikgosi as nation builders. He cautioned and warned that, the Commission should ensure that their dealing with Dikgosi is harmonious. He called for an amendment to be made on the ‘National Order of Precedence’ noting that Dikgosi are put at number 11, but should at least be taken a little higher to number 7.
One resident, Tshepo Moloi while giving his contribution said there must be provisions of Social Justice that ensure equal distribution of resources to all citizens. He said this provision should entail an obligation that all citizen have equal opportunities to different Government Initiatives. Moloi substantiated that, all ‘Presidential Commissions’ be engraved on the Constitution
Alfred Thogolwane who is as well a resident of the biggest village in the Central District, pointed out the need for preservation of the country and resources thereof, saying “it must dawn onto all that, the calabash that fetches water for the family cannot fixed once its broken.” Another resident, Keikantsemang Sebedi advocated for Polygamous marriage, saying that men should marry as many wives as they please. She said there is no need for any socioeconomic assessment done on men who wish to marry more than one wife.
She advised that, the country should benchmark from the Zezuru culture that does it, with no complexities. On the other hand, Sebedi said that, there must be considerations done on the Old Age Pension. She said people who earned P4000 should not receive the old Age Pension upon their fullness of age. Forshia Koloi called for amendments on Section 77 and all the provisions that speaks to the subject of Bogosi and the powers infested in them. He said they should be made more detailed and avoid ambiguity in clauses.
Mr Tlhaodi said there must be Land Audits done in the country. Citing an example of the Tati Land as one that should be thoroughly audited. He further advised that, Election Day be put on the Calendar. He said, if it happens that the day be a Saturday, there should be some special dispensation for the 7th Day Adventist Church members to take part in voting without compromising on their day of worship. Tlhaodi added that there must be People’s Complaint Commission in the country.
Speakers emphasized the need for the country to review the exercise of ‘Political Party Funding’. They articulated that lack of funding political parties’ results in political parties resorting to finding funds for themselves. They reiterated that sometimes going to the extent of getting funds through illegal means. Bangwato agreed in one accord that they want the President be tried whilst in office if suspected of any criminal offences. This was revealed in their contributions. They pointed out that, the law should not to wait until the end of their tenure.
For his part, the Deputy Chairperson of the Commission Johnson Motshwarakgole expressed gratitude to the residents of Serowe. He applauded women for their kindness saying it is only them, who always take responsibility for doing things amicably in the society.
Parliament has revealed that it plans to rollout a Community Score Card (CSC) exercise as part of sweeping reforms to its role and mandate among others.
The planed shakeup, along with the rollout of CSC will see creation of new Parliamentary Portfolio Committees on Health, HIV&AIDS, Education and Skills Development, Trade and Economic Development, Agriculture, Lands and Housing and Local Governance and Social Welfare. Parliament informed government ministries and departments that the CSC is a participatory, community based monitoring and evaluation tool that enables citizens to assess the quality of public services and interact with services providers to express their concerns.
According to Parliament, the CSC will assist to inform community members about available services and their entitlements and to solicit their opinions about the accessibility and quality of certain services related to the portfolio committees mentioned. It said the main objective is for Parliament through identified oversight committees is to conduct a participatory monitoring and evaluating process that puts ownership and responsibility for delivery of services in the hands of both the Government and the service recipients.
“Through scorecards developed around identified sectors and services, communities and implementing departments remain in touch with progress made through the programme delivery cycle and are able to respond timely to bottlenecks,” the National Assembly said. Some of the measurements and expected outcomes for the rolling out of the CSC include among others, improved monitoring and economic evaluation, to determine the impact of spending, so as to be able to direct resources from where they having the least benefit to those projects and programmes where they will have a larger positive impact.
The National Assembly explained further that this could result in a willingness to close down ineffective programmes and institutions and not to implement projects that do not deliver adequate returns, improved productivity in the public services, especially given the substantial pay increases.
The National Assembly believes that the rolling out of CSC is also expected to result in efficiency savings: many public services and programmes could be delivered more effectively at lower costs, by improving management and accountability, and making use of e-services. “This would yield financial savings that could be used for development programmes or reducing the deficit,” the National Assembly said.
The exercise is also expected to result in “Careful scrutiny of subsidy schemes and termination of those that do not address market failure or assist truly needy Batswana.” The National Assembly revealed that proposed Parliamentary Portfolio Committee on Health and Wellness has been established in accordance with the Standing of National Assembly of Botswana. It explained that the mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Ministries, Departments and Agencies with portfolio responsibilities in respect of Health and HIV/AIDS.
“There is need to identify reasons for inefficiency and poor outcomes and ensure that health system reform improve productivity and value for money. Key areas of focus for scorecard, availability of drugs, staffing ratios, accessibility of health services, speciality care and services and sexual reproductively health,” the National Assembly said.
Another proposed Committee is on Local Governance and Social Welfare. The mandate of the Committee is mainly to exercise Parliamentary Oversight and Scrutiny over Government Ministries. Departments and Agencies with Portfolio responsibilities in respect of Local Governance and Social Welfare.
“Strategies under NDP 11 to improve outcomes of social uplifment include; diversiﬁcation of rural economies, development and support of small businesses, provision of social safety nets, eradication of absolute poverty, provision of quality and equitable education and harmonisation of social protection programmes,” said the National Assembly. It said social nets need to be improved so as to target these most in need (at present some social safety nets benefit many people who are not the most needy, but also miss out some of those who are needy).
“Some social development policies more broadly should also aim to reduce household vulnerability to shocks such as those arising from fluctuations in agriculture, climate change, incomes and employment and improve their ability to handle shocks, thereby building household resilience,” the National Assembly said.
Another Committee established is on Agriculture, Lands and Housing. The mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Institutions, Departments and Agencies with portfolio responsibilities in respect of Agriculture, Lands and Housing.
The National Assembly said the average growth rate of the agricultural sector since the beginning of National Development Plan 11 (NDP11) (i.e. during the 2017/2018 and 2018/19 financial years) was 2.5 percent, making it the slowest growing sector of the economy, in line with its historical performance.
“Over the same period, its share of GDP has been stagnant at around 2 percent. The sector also contributes job opportunities for about 80 000 adults. Food security has become paramount since the onset of the corona virus pandemic,” the National Assembly said. The National Assembly said the Government realises the need to increase food production for products in which Botswana has a cooperative advantage such as beef, grains and other horticulture products.
The Committee on Finance, Trade and Economic Development has also been established. One of the mandates of Committee would be to exercise Parliamentary oversight and scrutiny over government ministries, departments and agencies with portfolio responsibilities in respect of Finance, Development, Trade and Industry.
“The sector is at the core of industrialisation aspirations and strategies for economic development in Botswana. Manufacturing in particular can be the driver of economic growth through technological improvements and innovation,” the National Assembly said. Hence, it said, the development of the sector could also foster export diversification and export led-growth in Botswana while benefitting from the African Continental Free Trade Area (AFCFTA).
Two senior members of Directorate on Corruption and Economic Crime (DCEC) have threatened legal action against Directorate of Intelligence and Security (DIS), it has transpired. The threat is contained in an answering affidavit of Director General of DCEC, Tymon Katlholo in which he is seeking an interdiction from High Court to stop the DIS from accessing investigation files at his office.
After the DIS detained DCEC officials Joao Salbany and Tsholofelo Bareetsi on December 16, 2021, they filed an official complaint against DIS and some officials. They complained about abuse of office by DIS and five officers. Salbany and Bareetsi also complained about unlawful detention by DIS and unlawful dissemination of classified information contrary to Section 44 of Corruption and Economic Crime Act. “The DIS interviews were premised on information divulged during the course of official DCEC work product, that is the Monday media brief meeting,” they wrote.
They further requested leave to institute a civil suit against the DIS and its officers, and invariably the State for inhuman and degrading treatment they suffered and unlawful detention. They also pondered a declaratory seeking a sanction against the DIS and Botswana Police Service (BPS) and clarification of the role of BPS officers seconded to DIS.
“The envisaged suit against BPS and DIS officers and the DIS will inevitably centre on investigations done by the DCEC and the scope of the protection availed to DCEC officers for conduct done in the course and scope of DCEC official duties.” The duo said it was self-evident from the conduct of the DIS officers that there was nothing urgent about the information required by the DIS, justifying their detention at its Sebele facility from 08:30 hours on December 16, 2021 until 02:00 hours on December 17, 2021.
They reasoned that the information required by the DIS could have been obtained by a simple request to DCEC Director General. “What the DIS did was to seek to intimidate officers of the DCEC whom they knew were carrying out investigations against some of the DIS officers who were part of their investigation team. This turn of events has a chilling effect not only on the functioning of the DCEC but also on the official conduct of officers of the DCEC as to how they conduct their official duties.”
They concluded by stating that in the event the request is granted, they would further request to be advised as to the provision of legal representation as the unalwful detention and the degrading and inhuman treatment by the DIS was in relation to matters conducted by and on behalf of the DCEC.