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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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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy. 

The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.

However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world.  The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.

Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.

“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.

The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)

Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.

“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.

“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.

“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.

“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.

For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.

In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.

According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.

In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled.
Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.

Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects.  During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies.  Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination.  The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.

The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.

Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.

He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful.  Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.

But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB.  FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.

Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.

Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB.  “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.

The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).

FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders.  Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.

In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.

But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings.  “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.

FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries).  The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?

“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.

“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.

He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”

“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.

Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.

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