The Law Society of Botswana (LSB) has made it clear that it was not bluffing when it expressed its intention to challenge the appointment of Justice Brand to the court of Appeal bench along with any “secretive” appointments to the High court and court of Appeal benches. In a perhaps cleverly orchestrated and swift move, the Society served the Attorney General and the Judicial Service Commission with a statutory notice of the lawsuit, a day after LSB chairperson Lawrence Lecha made mention of the intention to challenge Brand’s appointment.
Lecha first spoke about the intention to challenge Brand’s appointment during the opening of this year’s legal year at the Gaborone High court on Tuesday this week. The following day the Society served the Attorney General and the Judicial Service Commission with the statutory notice detailing the intention of the lawsuit. The State President, Lieutenant General Seretse Khama Ian Khama, the Judicial Service Commission (JSC) and the Attorney General will be sued at the expiry of the thirty day statutory notice. “Please take notice that the above named claimant intends, at the expiry of the thirty days, to launch court proceedings against the President of the Republic of Botswana Lieutenant General Seretse Khama Ian Khama (the “President” and/ or the Judicial Service Commission (“JSC) and /or the Government of the Republic of Botswana for an order in the following terms, an order reviewing and /or setting aside and declaring as unlawful, null and void the appointment of Mr Justice Frederik Daniel Jacobus (Fritz) Brand as the Judge of the court of Appeal,” the notice reads it part.
The LSB would further ask the court to make an order directing and ordering the JSC to provide and or disclose the process followed in identifying and placing before the JSC for appointment the 66 year old Brand.
Alternatively they would ask for an order reviewing and setting aside the decision of the JSC to recommend him for appointment.
Around October last year, 2015, President Khama appointed Brand as the Judge of the court of Appeal. The appointment accordingly followed the recommendation by the JSC and Judge President of the Court of Appeal, Ian Kirby says Brand did not apply for the job, but was rather “invited.”
The main objection however is that Brand’s appointment was clouded by secrecy which is common in the appointment of Judges in the country.
“In making the recommendation, the JSC never placed an advert in the Botswana government Gazette and in fact did not place any notice at all requesting for interested persons to fill the vacant position aforesaid,” LSB stated.
It further stated that, although Brand had started his job, to date, it is unknown as to who exactly negotiated and approached him for appointment.
“The LSB therefore contend that the manner of appointment to such a high Judicial office in a highly secretive and clandestine manner is unlawful and goes against all known rules of transparency in a democratic dispensation and is contrary to law,” it further contended.
The LSB also intends to ask the court to declare that the current system of recommendation for appointment as carried out by the JSC lacks transparency, openness and is irregular and contrary to law and good governance.
They would therefore ask the court to direct the JSC to advertise all or any vacant positions in the court of Appeal and the High court and to conduct interviews in respect thereof before making a recommendation for any appointment of a Judge.
According to LSB Executive Secretary, Tebogo Moipolai, the decision to challenge Brand’s appointment was first made in November, 2015, but due to some tactical legal issues that required to be resolved was revisited in December and again the resolution was confirmed.
“The reasons for the challenge relate to the process of appointment. As with others at the CoA (Court of Appeal) it lacks transparency since there was no advertisement or interview. It is not known to LSB even with a member in the JSC, where and how he was approached and by who,” Moipolai explained.
The other reason for the challenge, Moipolai says, is as stated by the LSB Chairperson, Lecha in his speech, on Tuesday this week before President Khama, Attorney General and the JSC when the High court legal year of 2016 was officially opened at the Gaborone High court.
Lecha had mentioned that, over the years, since as far back as 2006, or earlier, the LSB has advocated for a change in approach to the process of appointment of Judges with very limited success.”
He said although the interpretation of the Constitution was before the court in as far as the appointment of Judges was concerned, he was disappointed that, “whilst this litigation is ongoing, the Judicial Service Commission moves on with the same process that is being challenged. We would have thought that it would be prudent to allow the courts to pronounce on the proper process to follow first, or at best on the side of caution and accept the interpretation suggested by the Society in the interim.”
At the time Lecha was speaking, a Judgment in which the society was challenging the refusal to appoint a local Attorney, Omphemetse Motumise by President Khama was yet to be issued. Khama refused to make the appointment even though Motumise was recommended by the JSC as required by law.
Lecha further added that, “an accepted principle in the dispensation of justice is that the Presiding Officers of courts must reflect the demographics of the society that those courts serve. The Society however notes that this is not the case in the High Court and especially the Court of Appeal where gender, race and age are disproportionate to the demographic position of the country.”
Gov’t reacts to Lecha’s remarks
Lecha’s remarks seemingly rubbed government officials the wrong way and the Ministry of Defence, Justice and Security in particular demanded an apology. The Ministry lamented that the speech contained racist, xenophobic and discriminatory undertones. Even the Judge President of the court of Appeal, Justice Ian Kirby was not amused and expressed the same view as the Ministry. He labelled Lecha’s remarks as “rude”.
Nonetheless the LSB has maintained that it stands by the speech and that it would not apologise.
“It needs to be stated that being a multiracial, multicultural and tolerant nation does not mean as a society we should shy away from publicly dealing with issues simply because they deal with race,” LSB retorted in a press statement that followed.
It further added that, “Any suggestion that it (speech) has racial, xenophobic and discriminatory undertones is either indicative of a serious dearth of knowledge of social sciences or simply mischievous. As said in the speech, in South Africa, the often talked about transformation of the Judiciary which is being championed by the country’s Chief Justice is based on this very same principle and the country has made great strides in that regard whilst Botswana, a much older democracy lags behind.”
Meanwhile Botswana’s Chief Justice, Maruping Dibotelo says his ideal Judiciary has to be well resourced and independent.
“I have committed what remains of my tenure as Chief Justice to ensuring that the Judiciary is properly resourced to enable it to discharge its constitutional mandate,” he stated and added that while he agrees that key Stakeholders in the Justice system must in general work together towards delivery of quality justice, “it should not be interpreted as equating the Judiciary which is an arm of the State, to Departments or Institutions that fall under the Ministry of Defence, Justice and Security because to do so could undermine and cloud the independence of the Judiciary which we continue to guard jealously at all times”.
“The Judiciary is required and must be a strong, impartial, independent and accountable Institution. Independence of the Judiciary is neither an esoteric pronouncement nor a privilege for the conform of Judicial Officers but a right and a practical measure for the benefit of Citizens, in a democratic state such as ours, to ensure that courts are true and genuine arbiters of cases brought before them. Whatever a litigant is standing or position in society we are all deemed equal before the law,” Dibotelo pointed out.
Dibotelo further expressed concern at the growing number of lawsuits against the State President.
“2015 was a turbulent year for the judiciary, a year marked by a litany of litigation against His Excellency the President, The Judicial Service Commission, The Attorney General etc. The litigation not only tested the integrity, strength of our Judiciary, and our commitment to adherence to the Rule of law but on hindsight equally demonstrated public confidence on the judiciary to promptly and adequately address issues brought before it,” he stated.
However the LSB suggests that the Chief Justice “is all talk but no action” because, “there has in the last few years been an unmistakable impression that cases of national importance or significance to Government always find themselves before the same Judges or panel of Judges, be it at the court of Appeal or the High court.”
The Society stressed that the society needs to be placed on record that Forum Shopping is as deplorable as the Chief Justice said in 2014, “Any partial allocation of cases further destroys the credibility of our judiciary.”
Lebang Mpotokwane, one of the conveners who presided over the opposition cooperation talks that resulted in the formation of the Umbrella for Democratic Change (UDC), has advised against changing the current umbrella model in favour of a merger as proposed by others.
The Botswana Congress Party (BCP) leader, Dumelang Saleshando recently went public to propose that UDC should consider merging of all opposition parties, including Alliance for Progressives (AP) and Botswana Patriotic Front (BNF).
Saleshando has been vehemently opposed by Botswana National Front (BNF), which is in favour of maintaining the current model. BNF’s position has been favoured by the founding father of UDC, who warned that it will be too early to ditch the current model.
“UDC should be well developed to promote the spirit of togetherness on members and the members should be taught so that the merger is developed gradually. They should approach it cautiously. If they feel they are ready, they can, but it would not be a good idea,” Mpotokwane told WeekendPost this week.
Mpotokwane and Emang Maphanyane are the two men who have since 2003 began a long journey of uniting opposition parties in a bid to dethrone the ruling Botswana Democratic Party (BCP) as they felt it needed a strong opposition to avoid complacency.
Tonota born Mpotokwane is however disappointed on how they have been ejected from participating in the last edition of talks ahead of the 2019 general elections in which BCP was brought on board. However, despite the ejection, Mpotokwane is not resentful to the opposition collective.
He said the vision of opposition unity was to ultimately merge the opposition parties but he believes time has not arrived yet to pursue that path. “The bigger picture was a total merger and we agreed that with three independent parties, members might be against merger eventuality so the current model should be used until a point where they are now together for as long as possible,” he said.
“UDC should gradually perform better in elections and gain confidence. They should not rush the merger. We have been meeting since 2003, but if they rush it might cause endless problems. If they are ready they can anyway,” he advised. For now the constituent parties of the umbrella have been exchanging salvos with others (BCP and BNF).
“There are good reasons for and against merging the parties. Personally, I am in favour of merging the parties (including AP and BPF) into a single formation but I know it’s a complex mission that will have its own challenges,” Saleshando said when he made his position known a week ago.
“Good luck to those advocating for a merger, it will be interesting to observe the tactics they will use to lure the BPF into a merger,” former BNF councillor for Borakalalo Ward and former BNF Youth League Secretary General, Arafat Khan, opined in relation to BCP’s proposed position.
Mpotokwane, who is currently out in the cold from the UDC since he was ejected from the party’s NEC in 2017, said the current bickering and the expected negotiations with other parties need the presence of conveners.
“We did not belong to any party as conveners so we were objective in our submissions. If party propose any progressive idea we will support, if it is not we will not, so I would agree that even now conveners might be key for neutrality to avoid biasness,” he observed. Despite being abandoned, Mpotokwane said he will always be around to assist if at all he is needed.
“If they want help I will be there, I have always been clear about it, but surely I will ask few questions before accepting that role,” he said. UDC is expected to begin cooperation talks with both AP and BPF either this week or next weekend for both upcoming bye-elections (halted by Covid-19) and 2024 general elections and it is revealed that there will be no conveners this time around.
The Botswana Democratic Party (BDP) moved through its lawyers to attach the property of Umbrella for Democratic (UDC) President Duma Boko and other former parliamentary contestants who failed in their court bid to overturn the 2019 general elections in 14 constituencies.
WeekendPost has established that this week, Deputy Sheriffs were commissioned by Bogopa Manewe Tobedza and Company who represented the BDP, to attach the properties of UDC elections contents in a bid to recover costs. High Court has issued a writ of execution against all petitioners, a process that has set in motion the cost recovery measures.
Botswana Sectors of Teachers Union (BOSETU) says COVID-19 as a pandemic has negatively affected the education sector by deeply disrupting the education system. The intermittent lockdowns have resulted in the halting of teaching and learning in schools.
The union indicated that the education system was caught napping and badly exposed when it came to the use of Information System (IT), technological platforms and issues of digitalisation.
“COVID-19 exposed glaring inefficiencies and deficiencies when it came to the use of ITC in schools. In view of the foregoing, we challenge government as BOSETU to invest in school ITC, technology and digitalization,” says BOSETU President Kinston Radikolo during a press conference on Tuesday.
As a consequence, the union is calling on government to prioritise education in her budgeting to provide technological infrastructure and equipment including provision of tablets to students and teachers.
“Government should invest vigorously in internet connectivity in schools and teacher’s residences if the concept of flexi-hours and virtual learning were to be achieved and have desired results,” Radikolo said.
Radikolo told journalists that COVID-19 is likely to negatively affect final year results saying that the students would sit for the final examinations having not covered enough ground in terms of curriculum coverage.
“This is so because there wasn’t any catch up plan that was put in place to recover the lost time by students. We warn that this year’s final examination results would dwindle,” he said.
The Union, which is an affiliate of Botswana Federation of Public, Private and Parastatal Union (BOFEPUSU), also indicated that COVID-19’s presence as a pandemic has complicated the role of a teacher in a school environment, saying a teacher’s role has not only transcended beyond just facilitating teaching and learning, but rather, a teacher in this COVID-19 era, is also called upon to enforce the COVID-19 preventative protocols in the school environment.
“This is an additional role in the duty of a teacher that needs to be recognized by the employers. Teachers by virtue of working in a congested school environment have become highly exposed and vulnerable to COVID-19, hence the reason why BOSETU would like teachers to be regarded as the frontline workers with respect to COVID-19,” says Radikolo.
BOSETU noted that the pandemic has in large scales found its way into most of the school environments, as in thus far more than 50 schools have been affected by COVID-19. The Union says this is quite a worrying phenomenon.
“As we indicated before when we queried that schools were not ready for re-opening, it has now come to pass that our fears were not far-fetched. This goes out to tell that there is deficiency in our schools when it comes to putting in place preventative protocols. In our schools, hygiene is compromised by mere absence of sanitizers, few hand-washing stations, absence of social distancing in classes,” the Union leader said.
Furthermore, Radikolo stressed that the shifting system drastically increased the workload for teachers especially in secondary schools. He says teachers in these schools experience very high loads to an extent that some of them end up teaching up to sixty four periods per week, adding that this has not only fatigued teachers, but has also negatively affected their performance and the quality of teaching.
In what the Union sees as failure to uphold and honour collective agreements by government, owing to the shift system introduced at primary schools, government is still in some instances refusing to honour an agreement with the Unions to hire more teachers to take up the extra classes.
“BOSETU notes with disgruntlement the use of pre-school teachers to teach in the mainstream schools with due regard for their specific areas of training and their job descriptions. This in our view is a variation of the terms of employment of the said teachers,” says Radikolo.
The Union has called on government to forthwith remedy this situation and hire more teachers to alleviate this otherwise unhealthy situation. BOSETU also expressed concerns of some school administrators who continuously run institutions with iron fists and in a totalitarian way.
“We have a few such hot spot schools which the Union has brought to attention the Ministry officials such as Maoka JSS, Artesia JSS, and Dukwi JSS. We are worried that the Ministry becomes sluggish in taking action against such errant school administration. In instances where action is taken, such school administrators are transferred and rotated around schools.”