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LSB demands 1966 minutes to prove Khama wrong

The Law society of Botswana (LSB) wants the complete minutes of the 1966 London Bechuanaland Constitutional Conference to be made available to it ahead of the big High court debate on whether or not the State President has constitutional right to refuse to appoint a Judge following recommendation by the Judicial Service Commission (JSC).


As of this week, the LSB was preparing to file an interlocutory application seeking the said minutes son as to support its argument in a matter in which it is suing the President Ian Khama Seretse Khama for refusing to appoint a local attorney, Omphemetse Motumise as the Judge of the High court. Khama refused to appoint Motumise despite JSC having highly recommended his name for appointment. Motumise is also an applicant in the matter.


The crux of the matter is that since the Attorney General insists that the President has the power to refuse the JSC recommendation and the LSB holds a different view point, then the answer should be provided by the framers of the constitution.


The framers of the constitution held an independence Conference in London in 1966 which documented the discussions leading to the constitution of Botswana which is being interpreted before court today.


An abstract of the minutes which were referred to as a contention point by the LSB in the current case repeats what the constitution dictates, that the President shall only appoint Judges of the High court at the advice of the JSC.


“Mr. de Winton said that in the draft the Judicial Service commission themselves appointed the puisne judges. It was usual for the President to be formally responsible. The conference agreed that puisne judges should be formally appointed by the President, acting on the advice of the Judicial Service Commission,” the minutes were quoted in part.


Now the LSB wants the complete minutes so as to make their case against President Khama and the JSC. The JSC is also sued because it went on to recommend a different name after Khama refused to appoint Motumise and it is viewed to be “singing from the hymn book,” with the President.


The LSB maintains that it is clear that the President has no right to refuse an appointment recommendation from the JSC.


“In light of the above minutes and the clear and unambiguous wording of the phrase, “acting in accordance with the advice of the judicial service Commission,” it is not surprising that the report of the Presidential Committee on the Judiciary took the view that section 96(2) is clear, unambiguous and adequate. And that there was thus no need to address the concern raised that the section might be interpreted in the future in a manner which allowed the President to refuse the advice of the JSC,” maintains the LSB.


Although the society agrees that there are instance where the President has exclusive powers to appoint for example the Chief Justice and the Judge President, it argues that if the framers of the constitution intended for the President to be the sole repository of power, it would have done the same for other judges of the High court.


The society’s contention is that, there are certain circumstances such as the appointment of High Court Judges where the President has no discretion at all, in that the President is advised and shall act on that advice.


But the bone of contention between Khama and the society is the interpretation of the words “advise,” as the word in its nature is viewed as not so binding.


The matter is yet to be debated before a panel of three Judges, Lakvinder Walia, Abednego Tafa and Phadi Solomon at the Gaborone High court.

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