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London minutes blasts Motumise case wide open

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”.

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BDP decides Balopi’s fate

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The Botswana Democratic Party (BDP) Central Committee (CC) meeting, chaired by President Dr Mokgweetsi Masisi late last month, resolved that the party’s next Secretary-General (SG) should be a full-time employee based at Tsholetsa House and not active in politics.

The resolution by the CC, which Masisi proposed, is viewed as a ploy to deflate the incumbent, Mpho Balopi’s political ambitions and send him into political obscurity. The two have not been on good terms since the 2019 elections, and the fallout has been widening despite attempts to reconcile them. In essence, the BDP says that Balopi, who is currently a Member of Parliament, Minister of Employment, Labour Productivity and Skills Development, and a businessman, is overwhelmed by the role.

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BDF-Namibians shootings autopsy report revealed

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The Botswana Defence Force (BDF)-Namibians fatal shooting tragedy Inquest has revealed through autopsy report that the BDF carried over 800 bullets for the mission, 32 of which were discharged towards the targets, and 19 of which hit the targets.

This would mean that 13 bullets missed the targets-in what would be a 60 percent precision rate for the BDF operation target shooting. The Autopsy report shows that Martin Nchindo was shot with five (4) bullets, Ernst Nchindo five (5) bullets, Tommy Nchindo five (5) bullets and Sinvula Munyeme five (5) bullets. From the seven (7) BDF soldiers that left the BDF camp in two boats, four (4) fired the shots that killed the Namibians.

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Gov’t confused over Moitoi’s UN job application

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The former Minister of Foreign Affairs and International Cooperation, Pelonomi Venson-Moitoi’s decision to apply for the positions of United Nations Special Representative of the Secretary-General (SRSG) and their deputies (DSRSG), has left the government confused over whether to lend her support or not, WeekendPost has established.

Moitoi’s application follows the Secretary-General’s launch of the third edition of the Global Call for Heads and Deputy Heads of United Nations Field Missions, which aims to expand the pool of candidates for the positions of SRSG) and their deputies to advance gender parity and geographical diversity at the most senior leadership level in the field. These mission leadership positions are graded at the Under-Secretary-General and Assistant Secretary-General levels.

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