It has since emerged that a thick dossier, originally stowed away across the Mediterranean in London archives might have strongly shaped views of judges presiding over a case in which the Law Society of Botswana (LSB) and attorney Omphemetse Motumise were suing President Ian Khama over exercising discretion in appointment of judges of the High Court.
The dossier allegedly contains arguments uttered by then Prime Minister Seretse Khama and his deputy; Ketumile Masire in February 1966 over what form the country’s constitutional template was to take. In the molding process of the Republic, Khama and Masire allegedly stated that as heads of the executive they intended to stay out of the realm of appointment of judges and leave that privilege to the Judicial Service Commission.
The Botswana delegation at the constitutional talks at some point included political figures such as Phillip Matante who eventually pulled out. A member of the British Crown’s delegation apparently agreed to Khama and Masire’s words, responding in essence that in that case, the executive can exercise only a formal role of appointment while the JSC can act a more practical role. The JSC was at the time comprised of among others the Attorney General and Chief Justice.
LSB legal minds stated this week that they got wind of the London minutes from a local newspaper article. It was unavailable at the Gaborone National Archives. It was then that they flew to London to retrieve the dossier which helped solidify their case even though it was already late in the proceedings. Tshiamo Rantao of Rantao Kewagamang Attorneys stated that “we looked for them and we couldn’t find them. In 2015 after the filing of the application, we found them in the National Library in London.”
After securing the dossier for the landmark case, they stated that they had to make an application for the newfound evidence to be included. LSB Vice Chairman Onalethata Kambai also stated that it was pure luck for them as lawyers representing the Attorney General chose to not oppose the application even though it was prejudicial to their case. An attorney who was arguing the LSB case before court, Gosego Garebamono noted that the LSB had now been redeemed after it was bashed and trolled following the High Court defeat.
He also noted that the trolling however worked to solidify their resolve and fuel their energies to fight the case further. Moreover, Garebamono stated that their view has always been that Section 96(2) of the constitution does not give the President discretion in appointment of judges describing it as so easy that “even a Form 5 student can discern its meaning.”
Garebamono stated that the ruling is going to be important for Botswana and the region as it has set a notable precedent. He also said that he will not be surprised if a similar case explodes in South Africa due to similarities in the country’s judicial appointments. “It will have and it does have international significance,” he stated. He further noted that the new ruling will be important for the appointments of all judicial officers such as Magistrates, Court of Appeal justices and registrars of courts as the LSB has previously received complaints from them about non-appointments.
He further stated that in all fairness, lawyers representing the AG were not disputing that the president has no discretion to decline appointment asserting that “it meant that Khama could keep rejecting appointments and this allowed him to get though the backdoor what he could not get through the front door which could not have been what the constitutional framers had in mind.” In the judgements Justices Lord Abernarthy and Hamilton determined that President Khama does not have the discretion to refuse appointment, making a finding that he acts only in a formal position only.
Justice Isaac Lesetedi also determined the steps that obtain in the appointment of High Court judges. He stated that that at first, as head of the Judiciary, the Chief Justice determines the judicial needs thereof and then informs the JSC of a vacancy. The JSC will then place an advert for aspirants to apply. They will further consider the applications and hold interviews in camera and lastly the selection of names and handing them to the president.
Lesetedi then stated that the AG, as the official go-between between government and the JSC, allows Khama to raise issues such as those of national concern during the appointment process and not at the end. Lesetedi however stated that Khama may have the right to refuse appointments after the process is completed if he advances reasons. He however stated that the action is liable to be attacked in court or reviewed.
Garebamono further stated that what was curios with the case is that when Khama was given the chance to provide the record of the case, only a one paged letter was provided which only stated that there was no record. He further stated that Khama did not give reasons specific to Motumise for declining his appointment only stating that he considers socio-political and national security issues in appointing. This he said placed all sorts of conjecture on Motumise’s shoulders which he described as “particularly unfair”.
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.
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.
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.