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.
Botswana Democratic Party (BDP) and some senior government officials are abuzz with reports that President Mokgweetsi Masisi has requested his Vice President, Slumber Tsogwane not to contest the next general elections in 2024.
The impacts of climate change are increasing in frequency and intensity every year and this is forecast to continue for the foreseeable future. African CEOs in the Global South are finally coming to the party on how to tackle the crisis.
Following the completion of COP27 in Egypt recently, CEOs of Africa DFIs converged in Botswana for the CEO Forum of the Association of African Development Finance Institutions. One of the key themes was on green financing and building partnerships for resource mobilization in financing SDGs in Africa
A report; “Weathering the storm; African Development Banks response to Covid-19” presented shocking findings during the seminar. Among them; African DFI’s have proven to be financially resilient, and they are fast shifting to a green transition and it’s financing.
COO, CEDA, James Moribame highlighted that; “Everyone needs food, shelter and all basic needs in general, but climate change is putting the achievement of this at bay. “It is expensive for businesses to do business, for instance; it is much challenging for the agricultural sector due to climate change, and the risks have gone up. If a famer plants crops, they should be ready for any potential natural disaster which will cost them their hard work.”
According to Moribame, Start-up businesses will forever require help if there is no change.
“There is no doubt that the Russia- Ukraine war disrupted supply chains. SMMEs have felt the most impact as some start-up businesses acquire their materials internationally, therefore as inflation peaks, this means the exchange rate rises which makes commodities expensive and challenging for SMMEs to progress. Basically, the cost of doing business has gone up. Governments are no longer able to support DFI’s.”
Moribame shared remedies to the situation, noting that; “What we need is leadership that will be able to address this. CEOs should ensure companies operate within a framework of responsible lending. They also ought to scout for opportunities that would be attractive to investors, this include investors who are willing to put money into green financing. Botswana is a prime spot for green financing due to the great opportunity that lies in solar projects. ”
Technology has been hailed as the economy of the future and thus needs to be embraced to drive operational efficiency both internally and externally.
Executive Director, bank of Industry Nigeria, Simon Aranou mentioned that for investors to pump money to climate financing in Africa, African states need to be in alignment with global standards.
“Do what meets world standards if you want money from international investors. Have a strong risk management system. Also be a good borrower, if you have a loan, honour the obligation of paying it back because this will ensure countries have a clean financial record which will then pave way for easier lending of money in the future. African states cannot just be demanding for mitigation from rich countries. Financing needs infrastructure to complement it, you cannot be seating on billions of dollars without the necessary support systems to make it work for you. Domestic resource mobilisation is key. Use public money to mobilise private money.” He said.
For his part, the Minster of Minister of Entrepreneurship, Karabo Gare enunciated that, over the past three years, governments across the world have had to readjust their priorities as the world dealt with the effects and impact of the COVID 19 pandemic both to human life and economic prosperity.
“The role of DFIs, during this tough period, which is to support governments through countercyclical measures, including funding of COVID-19 related development projects, has become more important than ever before. However, with the increasingly limited resources from governments, DFIs are now expected to mobilise resources to meet the fiscal gaps and continue to meet their developmental mandates across the various affected sectors of their economies.” Said Gare.
Letlhakeng:TotalEnergies Botswana today launched a Road Safety Campaign as part of their annual Stakeholder Relationship Management (SRM), in partnership with Unitrans, MVA Fund, TotalEnergies Letlhakeng Filling Station and the Letlhakeng Sub District Road Safety Committee during an event held in Letlhakeng under the theme, #IamTrafficToo.
The Supplier Relationship Management initiative is an undertaking by TotalEnergies through which TotalEnergie annually explores and implements social responsibility activities in communities within which we operate, by engaging key stakeholders who are aligned with the organization’s objectives. Speaking during the launch event, TotalEnergies’ Operations and HSSEQ, Patrick Thedi said, “We at TotalEnergies pride ourselves in being an industrial operator with a strategy centered on respect, listening, dialogue and stakeholder involvement, and a partner in the sustainable social and economic development of its host communities and countries. We are also very fortunate to have stakeholders who are in alignment with our organizational objectives. We assess relationships with our key stakeholders to understand their concerns and expectations as well as identify priority areas for improvement to strengthen the integration of Total Energies in the community. As our organization transitions from Total to Total Energies, we are committed to exploring sustainable initiatives that will be equally indicative of our growth and this Campaign is a step in the right direction. ”
As part of this campaign roll out, stakeholders will be refurbishing and upgrading and installing road signs around schools in the area, and generally where required. One of the objectives of the Campaign is to bring awareness and training on how to manage and share the road/parking with bulk vehicles, as the number of bulk vehicles using the Letlhakeng road to bypass Trans Kalahari increases. When welcoming guests to Letlhakeng, Kgosi Balepi said he welcomed the initiative as it will reduce the number of road incidents in the area.
Also present was District Traffic Officer ASP, Reuben Moleele, who gave a statistical overview of accidents in the region, as well as the rest of the country. Moleele applauded TotalEnergies and partners on the Campaign, especially ahead of the festive season, a time he pointed out is always one with high road statistics. The campaign name #IamTrafficToo, is a reminder to all road users, including pedestrians that they too need to be vigilant and play their part in ensuring a reduction in road incidents.
The official proceedings of the day included a handover of reflectors and stop/Go signs to the Letlhakeng Cluster from TotalEnerigies, injury prevention from tips from MVA’s Onkabetse Petlwana, as well as bulk vehicle safety tips delivered from Adolf Namate of Unitrans.
TotalEnergies, which is committed to having zero carbon emissions by 2050, has committed to rolling out the Road safety Campaign to the rest of the country in the future.