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.
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.