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.”
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.