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.
Some vendors have been misled Vendors thrive on households goods and fresh produce
Despite the previous false allegations that the Tobacco Control Bill will lead to several 20 000 vendors across the country losing their jobs, several local vendors have expressed that they are ready for the bill and because vendors sell mostly household goods
“This is something that we openly accept and receive as street vendors, the problem is some of our counterparts were misled and made to believe that we will not be allowed to sell cigarettes on our stalls.
Some of us got to understand that the bill states that we have to be licensed to sell cigarettes, we are not supposed to sell them to children under the age of 18 years of age and eliminating the selling of single sticks. We understand that this agenda is meant to develop a healthy nation but not take us down,” said Mbimbi Tau a vendor who operates from Mogoditshane.
The Tobacco Control Bill has been passed in several countries and street vendors are operating properly without any challenges faced. Tau further mentioned that there is no way that the Tobacco Control Bill will affect their business operations, all they have to do as vendors are to get the required documentation and do what the bill requires.
Another vendor Busani Selalame who operates from Gaborone Bonnington North was not shy to express his support towards the Tobacco Control Bill, “the problem is that some people within our sector have been misled and now they think that the bill is meant to take our operations down and completely stop selling cigarettes.
I support the fact that we are not supposed to sell cigarettes to children who are under the age of 18 years of age this has always been wrong, as parents we should be cautious of such and ensure that our children are disassociated with cigarettes,” said Selalame.
The Tobacco Control Bill prohibits advertising, promotion and sponsorship by the tobacco industry to prevent messages, cues, and other inducements to begin using tobacco, especially among the youth, to reassure users to continue their use, or that otherwise undermine quitting.
Renowned economist Bakang Ntshingane is of the view that since vendors sell household goods and fresh produce they are likely to keep on making profits despite what the Tobacco Control Bill comes with. He further stated that the Tobacco Control Bill will not be of harm on the local economy since the country does not manufacture or produce any tobacco related products.
BancABC Botswana, the BSE-listed bank today announced its half year results for the six months ended 30 June 2021, against a subdued economic backdrop, exacerbated by the COVID-19 pandemic and related lockdowns.
BancABC has remained resilient in the current operating environment as business activity increased in the first half of 2021, with Real GDP up by 0.7% in the first quarter compared to a contraction of 4.6% in the previous quarter. Commenting on the results, Managing Director Kgotso Bannalotlhe said, “Currently, economic activity is relatively stable.
While COVID-19 placed significant pressure on the economy and our overall business, BancABC Botswana has shown remarkable resilience amid a tough operating environment. While the bank operates in an environment that is seeing a rise in COVID-19 infections, it is encouraging that the business has maintained a healthy capital adequacy ratio as well as being successful in improving total expenses with focus on cost containment across the board.”
The retail segment saw an increase in customer deposits this year, signalling an improvement from the previous period and strengthening the current funding mix. This segment has built great momentum and continues to advance its digital strategy, through various products such as the mobile banking app, SARUMoney, as well as enhanced product offerings such as the introduction of fash cash. The Bank has invested in its digital capabilities to ensure a seamless and hassle-free banking experience for all its customers.
The commercial segment was successful in reducing the cost of funding. In addition, Treasury and Global Markets performed well, doubling from the previous comparative period. The current year performance across the bank’s different segments is testament to the bank’s strong income lines, aiding the Bank’s resilience during this time.
“The Bank experienced slow loan book growth due to a constrained economic environment, however, we remain optimistic that as the economy recovers, credit appetite amongst the Bank’s customer-base will increase. In addition, we reported good non-interest revenue, driven by increased trading income on the back of improved margins and volumes. Our outlook remains positive as we expect momentum across the different segments to improve over time,” said Ratang Icho-Molebatsi, BancABC Botswana Finance Director.
In April 2021, BancABC Botswana’s ultimate holding company, Atlas Mara Limited, as well as ABC Holdings Limited and Access Bank Plc announced an agreement to a proposed acquisition of 78.15% of BancABC Botswana. The transaction presented an opportunity for BancABC Botswana’s strong retail banking operation to merge with Access Bank’s wholesale banking capabilities, augmenting itself as one of Africa’s leading banks.
“The transaction provides significant scope for revenue diversification and growth in the corporate and SME banking segment. Increased access to trade finance, treasury, international payments and loans through the wider distribution network offered by Access Bank’s presence in the key trade corridors that connect Africa to the rest of the world, presents solid opportunities for BancABC Botswana”, commented Icho-Molebatsi “With the transaction, BancABC Botswana’s customers stand to benefit from best-in-class digital platforms and product suites, leveraging Access Bank’s group IT infrastructure as well as other fintech solutions”, said Bannalotlhe.
Further, with Access Bank expanding its footprint into Botswana, it will position the Bank to deliver a more complete set of banking solutions to Batswana across the country”, concluded Bannalothle.
Last Friday, the board of Directors of the African Development Bank Group authorised a $137 million (P1.5 billion) loan to support Botswana’s Post COVID-19 pandemic economic recovery.
The funds, extended under the Bank Group’s Botswana Economic Recovery Support Program, will be used to enact multi-sector reforms that will increase spending efficiency, create jobs and drive inclusive growth.
The project has three components: enhancing domestic resource mobilisation and mitigating fiscal risks to enhance macroeconomic performance and create fiscal space for spending on social safety nets; supporting private sector-led agriculture and industry to bolster productivity and value addition and increase job opportunities, and offering business development services to micro and small enterprises to advance social protection and gender equity. The three components are expected to reinforce one another.
“The African Development Bank is providing support for reforms to enhance private sector-led agriculture and transformation of the industrial sector,” said Leila Mokadem, Director General of the Southern Africa Regional Development and Business Delivery Office. “Agriculture value addition can serve as a springboard for industrialisation and job creation,” she added.
The project aligns with the Bank Group’s Ten-Year Strategy (2013-2022) and its High Five strategic priorities, particularly Industrialise Africa and Improve the quality of life of the people of Africa. The African Development Bank observed that Botswana has a very low risk of debt distress and a positive medium-term growth outlook. However, a lack of economic diversification exposes the country to significant vulnerabilities.
The Bank Group’s active portfolio in Botswana amounts to UA 57.7 million ($81.9 million) and comprises four projects. The financial sector accounts for the largest share of the portfolio by industry (97.1%), followed by agriculture (1.7%) and industry (1.2%). In the past, the African Development Bank partnered with various Botswana government agencies to accelerate economic growth.
On the 21st of February 2020, the bank signed a thematic Line of Credit (LoC) of P900 Million for a 10-year tenor with Botswana Development Corporation (BDC), a wholly state-owned investment agency. This was during that time, the single largest transaction of its nature to ever take place in Botswana.
The LoC was penned to support the BDC’s long-term strategy to scale up its investments in critical sectors, including manufacturing, transport and service sectors, with the overall objective of supporting the transformation and industrialisation of the Botswana economy. BDC eyed a more comprehensive socio-economic benefit with this partnership, including attracting investments into the economy and employment creation.
The African Development Bank is a multilateral development finance institution. It has an overarching objective to spur sustainable economic development and social progress in its regional member countries (RMCs) through mobilising and allocating resources for investment and providing policy advice and technical assistance to support development efforts.
This transaction was poised to support further BDC’s focus on safeguarding its balance sheet to ensure financial sustainability whilst fulfilling its mandate as the Botswana Government’s principal investment arm.
The COVID-19 pandemic has landed massive blows on Botswana; apart from claiming more than 2300 lives thus far, the contagious plague has exacerbated existing growth challenges. The effects of the pandemic have led to an estimated real gross domestic product (GDP) contraction of 7.9% in 2020, according to the World Bank, worse than that of the 2009 global financial crisis.
The contraction reflects the impact that reduced global demand, travel restrictions and social distancing measures have had on output in crucial production and export sectors, including the diamond industry and tourism.
Botswana’s fiscal deficit is set to widen to 11.3% of GDP in FY2020/21, from 5.6% in FY2019/20, reflecting a sharp decline in mineral revenues, a sticky public sector wage bill, and the impact of the COVID-19 spending. Similarly, the current account deficit is estimated to have widened to 8 percent of GDP in 2020 following the sharp decline in diamond exports.
Developments in the global diamond industry will significantly impact the short-term recovery, given Botswana’s dependence on the commodity. While recovery is expected in 2021 due to a favourable outlook for the diamond industry, the economic impact of COVID-19 is likely to be deep and long-lasting. The P1.5 billion African Development Bank loan comes after the World Bank approved a P2.5 billion boost for Botswana early this year.
The Programmatic Economic Resilience and Green Recovery Development Policy Loan (DPL) will support the implementation of Botswana’s Economic Recovery and Transformation Plan and is designed to strengthen COVID-19 pandemic relief while bolstering resilience to future shocks.
In August, Botswana received the International Monetary Fund (IMF) 189 Special Drawing Rights allocation worth P3 billion. The IMF SDR is a non-currency asset that Botswana can convert into hard currency by trading it with other IMF member countries.