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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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Government sitting on 4 400 vacant posts

14th September 2020
(DPSM) Director Goitseone Naledi Mosalakatane

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.

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FNBB projects deeper 50 basis point cut for Q4 2020

14th September 2020
Steven Bogatsu

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.

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Food suppliers give Gov’t headache – report

14th September 2020
Food suppliers give Gov’t headache

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.

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