Justice Abednigo Tafa of the Lobatse High Court’s judgement has on Thursday effectively steered to a provisional close down of the Court of Appeal sittings – which is revered as the highest decision making structure of the judiciary.
Following the ground breaking judgement, it is understood that CoA President Justice Ian Kirby thereafter confirmed that indeed the Supreme Court has ceased to sit until the constitutional matter is settled. But now there remain questions of who will listen to the Appeal should there be any or what Parliament will do to normalize the situation. There are further questions as to whether the Justices of the Court of Appeal will continue serving during the period of appeal until a final decision is made.
When making the breathtaking ruling, Justice Tafa ordered that the appointment of Judges of Court of Appeal Justices; Stephen Gaongalelwe, Isaac Lesetedi, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie is “constitutionally invalid.” He also declared section 4 of the Court of Appeal Act as “constitutionally invalid and therefore struck down.” The said section states that: “the Court of Appeal shall, in addition to the judges provided for it under the Constitution, consist of such number of Justices of Appeal as the President of Botswana may consider necessary to appoint.”
The section was consequently struck down as it was seen as incompatible with the constitution section 99 (2). The section 99(2) posits that: “the judges of the Court of Appeal shall be (a) the President of the Court of Appeal; (b) such number, if any, of Justices of Appeal as may be prescribed by Parliament; and 2 of 2002, section 5. (c) the Chief Justice and the other judges of the High Court: Provided that Parliament may make provision for the office of President of the Court of Appeal to be held by the Chief Justice ex-officio.”
According to Tafa, the operation leading to stroking down section 4 of the Court of Appeal Act would be however suspended temporarily. “The operation of order (2) above is hereby suspended for a period of 6 months to allow the relevant authorities to take the necessary steps to ensure that the appointments of the Court of Appeal Judges and all other respondents who have not been re-appointed after the expiry of three year fixed term contracts are regularized,” he said in the judgement while adding that government should bear the costs of the two South African Senior Counsels who have argued the matter from both sides of the two parties in the matter.
What esteemed local attorneys make of the ruling and its impact?
Martin Dingake of Dingake Law Partners:
According to Dingake the way he interpretes Justice Tafa’s judgement, it means in essence, the Court of Appeal cannot sit while adding that everyone particularly judicial stakeholders are at fault. He started by narrating to Weekend Post that President Khama was wrong to the extent that he appointed Judges of the Court of Appeal contrary to the law. “He can’t determine the number of the Court of Appeal Judges,” he said as a matter of fact.
Dingake continued to point out that, secondly parliament too was in the wrong as they literally abdicated it constitutional responsibility of law making. Thirdly, he also lamented that JSC too blundered to the extent that it made recommendations to the appointment of Judges which contravenes the law. “They ought to have checked the law and accordingly advised themselves.”
The managing attorney at Dingake law Partners also blamed the Attorney General (AG), the then AG Athaliah Molokomme, saying she was ‘off beam’ as she failed to advise herself and as per the obligation she also failed to advise government. According to Dingake, “the statutory notice ought to have put her on guard.”
Uyapo Ndadi of Ndadi Law Partners:
“The judgement is a hallmark. It does show the significance of separation of powers at all levels of the three tier system. Most importantly, it has shown that the Constitution is supreme and triumphs over any piece of legislation. It is from the Constitution that powers are derived to enable or refuse anything.
Any provision of an Act that goes against the Constitution is vulnerable to attack and liable to be nullified by the court, as it did with Section 4 of the Court of Appeal Act. I am proud of our courts for not shying away from striking down laws that are unconstitutional, not so long ago, Judge Key Dingake struck down a law that permitted children born out of wedlock to be adopted without their fathers consent in all circumstances, even when the father was present in the life of the child.
The judiciary is therefore playing an important part in ensuring that checks and balances are a reality. “I am however not entirely sure whether the court was correct on the issue of renewability of the judges contracts. I found the reasoning by the court difficult to follow and I am inclined to think that the court may be wrong on this score. I was however not involved in this case so I may have to engage further on the issue.”
Tshiamo Rantao of Rantao Kewagamang Attorneys
“The Botswana High Court (Tafa J.) delivered a groundbreaking judgment in Manual Workers Union vs The President, JSC and Others. It struck down section 4 of the Court of Appeal which gives the President the power to prescribe the number of judges of the Court of Appeal, holding that only parliament is constitutionally empowered to do so. This declaration of invalidity was suspended for 6 months to allow the relevant authority to amend accordingly.
Secondly, the High Court declared as unconstitutional the renewal of three year contracts of the other justices of the CoA. The appointing authority has no powers to renew the 3 year contracts of Justices of Appeal. Lord Abernathy, Lord Hamilton, Howie J. and Foxcroft J. have been effectively disqualified. There is no suspension of this second order. It is therefore effective forthwith. Only the CoA can set this aside.
Interestingly, section 99 (2) b of the Constitution makes the Chief Justice and the other judges of High Court members of the Court of Appeal. My interpretation is that Justices Gaongalelwe, Lesetedi, Foxcroft, Cameron, Hamilton and Howie are entitled to sit once parliament has effectively regularised by way of amendment to section 4 of Court of Appeal Act. It seems that for now only Brand would be entitled to sit.
If the respondents decide to appeal this matter, it would be interesting how the panel to hear and determine the appeal would be constituted. The appeal would require a full bench of 5 judges. The Judge President would not be entitled to sit since he is a member of the Judicial Service Commission which is the 2nd Respondent.
The Judge President may delegate one of the Judges of the High Court or Brand J to empanel a full bench with High Court judges. This means that Tafa J’s judgment is likely to be tested on appeal by his High Court peers generally. Manual Workers Union is likely to object to that, but we have to wait and see. I know of jurisdictions where the High Court’s decision would prevail if it is impossible to constitute an appeals court.
This judgment has far-reaching consequences for the other appeals. For instance, the Law Society and Omphemetse Motumise versus The President and the JSC appeal was argued before a full bench on 16 January 2017. Judgment was reserved to a date to be communicated by the Registrar of the CoA. Two of the five judges who sat have now been disqualified by the Tafa J’s judgment. We will certainly have to take instructions from clients on the implications of that.
This should be very interesting for a student of Constitutional Law and Public Law,” Rantao postulated. Other observers maintains that the case has a chilling effect on constitutionalism and the rule of law in general in Botswana.
The matter was brought to Court by Amalgamated Local Central Government and Parastatal Workers Union (Manual Workers Union) which Tafa agreed had a locus standi to bring the matter before court. They cited as respondents President Lt. Gen. Dr. Seretse Khama Ian Khama, Judicial Service Commission (JSC), the Speaker of the National Assembly Gladys Kokorwe, Attorney General, Justices Elijah Legwaila, Isaac Lesetedi, Stephen Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton, and Craig Howie who are High Court Judges as well as that of Court of Appeal.
Manual Workers were represented by Senior Counsel Advocate, Alec Freud from South Africa, together with Mboki Chilisa and Shathani Somolekae while respondents were represented by South African’s Senior Counsel Advocate, Anwar Albertus with Advocate Grant Quixley and Neo Sharp.
For so many years, Botswana has been trying to be a self-sufficient country that is able to provide its citizens with locally produced food products. Through appropriate collaborations with parastatals such as CEDA, ISPAAD and LEA, government introduced initiatives such as the Horticulture Impact Accelerator Subsidy-IAS and other funding facilities to facilitate horticultural farmers to increase production levels.
Now that COVID-19 took over and disrupted the food value chain across all economies, Botswana government introduced these initiatives to reduce the import bill by enhancing local market and relieve horticultural farmers from loses or impacts associated with the pandemic.
In more concerted efforts to curb these food crises in the country, government extended the ploughing period for the Southern part of Botswana. The extension was due to the late start of rains in the Southern part of the country.
Last week the Ministry of Agriculture extended the ploughing period for the Northern part of the country, mainly because of rains recently experienced in the country. With these decisions taken urgently, government optimizes food security and reliance on local food production.
When pigs fly, Botswana will be able to produce food to feed its people. This is evident by the numbers released by Statistics Botswana on imports recorded in November 2020, on their International Merchandise Trade Statistics for the month under review.
The numbers say Botswana continues to import most of its food from neighbouring South Africa. Not only that, Batswana relies on South Africa to have something to smoke, to drink and even use as machinery.
According to data from Statistics Botswana, the country’s total imports amounted to P6.881 Million. Diamonds contributed to the total imports at 33%, which is equivalent to P2.3 Million. This was followed by food, beverages and tobacco, machinery and electrical equipment which stood at P912 Million and P790 Million respectively.
Most of these commodities were imported from The Southern African Customs Union (SACU). The Union supplied Botswana with imports valued at over P4.8 Million of Botswana’s imports for the month under review (November 2020). The top most imported commodity group from SACU region was food, beverages and tobacco, with a contribution of P864 Million, which is likely to be around 18.1% of the total imports from the region.
Diamonds and fuel, according to these statistics, contributed 16.0%, or P766 Million and 13.5% or P645 Million respectively. Botswana also showed a strong and desperate reliance on neighbouring South Africa for important commodities. Even though the borders between the two countries in order to curb the spread of the COVID-19 virus, government took a decision to open border gates for essential services which included the transportation of commodities such as food.
Imports from South Africa recorded in November 2020 stood at P4.615 Million, which accounted for 67.1% of total imports during the month under review. Still from that country, Botswana bought food, beverages and tobacco worth P844 Million (18.3%), diamonds, machinery and fuel worth P758 Million, P601 Million and P562 Million respectively.
Botswana also imported chemicals and rubber products that made a contribution of 11.7% (P542.2 Million) to total imports from South Africa during the month under review, (November 2020).
The European Union also came to Botswana’s rescue in the previous year. Botswana received imports worth P698.3 Million from the EU, accounting for 10.1% of the total imports during the same month. The major group commodity imported from the EU was diamonds, accounting for 86.9% (P606.6 Million), of imports from the Union. Belgium was the major source of imports from the EU, at 8.9% (P609.1 Million) of total imports during the period under review.
Meanwhile, Minister of Finance and Economic Development Thapelo Matsheka says an improvement in exports and commodity prices will drive growth in Sub-Saharan Africa. Growth in the region is anticipated to recover modestly to 3.2% in 2021. Matsheka said this when delivering the Annual Budget Speech virtually in Gaborone on the 1st of February 2021.
He said implementation of the African Continental Free Trade Area Agreement (AfCFTA), which became operational in January 2021, could reduce the region’s vulnerability to global disruptions, as well as deepen trade and economic integration.
“This could also help boost competition and productivity. Successful implementation of AfCFTA will, of necessity, require Member States to eliminate both tariffs and non-tariff barriers, and generally make it easier to do business and invest across borders.”
Matsheka, who is also a Member of Parliament for Lobatse, an ailing town which houses the struggling biggest meat processing company in the country- Botswana Meat Commission, (BMC), said the Southern African Customs Union (SACU) recognizes the need to prioritize the key processes required for the implementation of the AfCFTA.
“The revised SACU Tariff Offer, which comprises 5,988 product lines with agreed Rules of Origin, representing 77% of the SACU Tariff Book, was submitted to the African Union Commission (AUC) in November 2020. The government is in the process of evaluating the tariff offers of other AfCFTA members prior to ratification, following which Botswana’s participation in AfCFTA will come to effect.”
Women continue to shadow men in politics – stereotypes such as ‘behind every successful man there is a woman’ cast the notion that women cannot lead. The 2019 general election recorded one of Botswana’s worst performances when it comes to women participation in parliamentary democracy with only three women elected to parliament.
Botswana’s former Minister of Health, Professor Sheila Tlou who is currently the Co-Chair, Global HIV Prevention Coalition & Nursing Now and an HIV, Gender & Human Rights Activist is not amused by the status quo. Tlou attributes this dilemma facing women to a number of factors, which she is convinced influence the voting patterns of Batswana when it comes to women politicians.
Professor Tlou plugs the party level voting systems as the first hindrance that blocks women from ascending to power. According to the former Minister of Health, there is inadequate amount of professionalism due to corrupt internal party structures affecting the voters roll and ultimately leading to voter apathy for those who end up struck off the voters rolls under dubious circumstances.
Tlou also stated that women’s campaigns are often clean; whilst men put to play the ‘politics is dirty metaphor using financial muscle to buy voters into voting for them without taking into consideration their abilities and credibility. The biggest hurdle according to Tlou is the fallacy that ‘Women cannot lead’, which is also perpetuated by other women who discourage people from voting for women.
There are numerous factors put on the table when scrutinizing a woman, she can be either too old, or too young, or her marital status can be used against her. An unmarried woman is labelled as a failure and questioned on how she intends on being a leader when she failed to have a home. The list is endless including slut shaming women who have either been through a divorce or on to their second marriages, Tlou observed.
The only way that voters can be emancipated from this mentality according to Tlou is through a robust voter education campaign tailor made to run continuously and not be left to the eve of elections as it is usually done. She further stated that the current crop of women in parliament must show case their abilities and magnify them – this will help make it clear that they too are worthy of votes.
And to women intending to run for office, Tlou encouraged them not to wait for the eleventh hour to show their interest and rather start in community mobilisation projects as early as possible so that the constituents can get to know them and their abilities prior to the election date.
Youthful Botswana National Front (BNF) leader and feminist, Resego Kgosidintsi blames women’s mentality towards one another which emanates from the fact that women have been socialised from a tender age that they cannot be leaders hence they find it difficult to vote for each other.
Kgosidintsi further states that, “Women do not have enough economic resources to stage effective campaigns. They are deemed as the natural care givers and would rather divert their funds towards raising children and building homes over buying campaign materials.”
Meanwhile, Vice President of the Alliance for Progressives (AP), Wynter Mmolotsi agrees that women’s participation in politics in Botswana remains a challenge. To address this Mmolotsi suggested that there should be constituencies reserved for women candidates only so that the outcome regardless of the party should deliver a woman Member of Parliament.
Mmolotsi further suggested that Botswana should ditch the First Past the Post system of election and opt for the proportional representation where contesting parties will dutifully list able women as their representatives in parliament.
On why women do not get elected, Mmolotsi explained that he had heard first hand from voters that they are reluctant to vote for women since they have limited access to them once they have won; unlike their male counterparts who have proven to be available night or day.
The pre-historic awarding of gender roles relegating women to be pregnant and barefoot at home and the man to be out there fending for the family has disadvantaged women in political and other professional careers.