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.
An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.
In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.
In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.
Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.
More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.
At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.
The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).
Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).
International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.
In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”
The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”
According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.
In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.
The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.
LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.
“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.
Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.
CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”
Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.
About ten (10) Umbrella for Democratic Change (UDC) parliamentary candidates who lost the 2019 general election and petitioned results this week met with UDC Vice President, Dumelang Saleshando to discuss the way forward concerning the quandary that is the legal fees put before them by Botswana Democratic Party (BDP) lawyers.
For a while now, UDC petitioners who are facing the wrath of quizzical sheriffs have demanded audience with UDC National Executive Committee (NEC) but in vain. However after the long wait for a tete-a-tete with the UDC, the petitioners met with Saleshando accompanied by other NEC members including Dr. Kesitegile Gobotswang, Reverend Mpho Dibeela and Dennis Alexander.