The Law Society of Botswana (LSB) has accused President Ian Khama Seretse Khama of manipulating the Judicial Service Commission (JSC) by making it recommend the names he wants for appointment of judges.
In court papers filed before the Gaborone High court, the LSB Executive Secretary, Tebogo Moipolai says in so doing the President and the JSC are in contravention of the law that governs the appointment of judges.
“The JSC and the President on their own version, have consistently breached section 103(4) in that the JSC has allowed the President to direct and control it where he refuses to take its advice, causing it to reconvene with a view to recommending the name which the President and not the JSC likes,” Moipolai pointed out.
Moipolai maintains that the Pres8ident does not have any discretion under the provisions of the constitution to decline appointment on criteria that is not considered by the JSC and that there is no room for the President to refuse an appointment on any basis because he is not empowered to act outside the advice of the JSC.
“The second respondent’s argument that section 96(2) has no application where the President declines to appoint a judge recommended by the JSC, is inimical to the doctrine of the independence of the judiciary and the separation of powers,” Moipolai contended.
The matter which is yet to be heard in open court before the High court is about the recent decision by President Khama to refuse to appoint a local attorney, Omphemetse Motumise as the judge of the High court. However the case is centred around the interpretation of section 96(2) of the constitution which deals with the extent of the President’s powers in as far as the appointment of judges is concerned.
“In addition to the order reviewing the order and setting aside of the first respondent’s (Khama) decision not to appoint the second applicant (Motumise), the applicants seek further declaratory relief in relation to the first respondent’s powers in terms of section 96(2) of the constitution and the conduct of the JSC in matters relating to the appointment of judges,” Moipolai further noted.
Although Khama has also filed papers detailing his reasons for his actions, the LSB maintains that the information he had brought forward is not enough as he had not explained the real reasons he rejected Motumise.
The LSB is of the view that the President’s contention seeks to undermine the careful balancing of powers enshrined in the constitution.
“The decision of the first respondent is liable to review under the principles of legality and rationally which requires that a decision maker exercise his powers lawfully, rationally and in good faith and does not exceed the powers conferred on him or her by law.
The applicant’s challenge the decision as irrational on the ground that it is ultra vires the powers conferred upon the first respondent by section 96(2) of the constitution,” Moipolai filed his contention against Khama’s view that his decision is not reviewable by the court of law.
Moipolai maintains that Section 127(10) of the Constitution quite clearly gives the court the power to review the exercise of the President’s power, irrespective of whether the power is a constitutional, executive, discretionary or prerogative one.
He further contends that the right of individuals to an independent and impartial judiciary is entrenched as a fundamental right in section 10(9) of the constitution and that where a public functionary, including the President, exercises such power, irrespective of whether one calls as an executive power or a prerogative, it is reviewable.
He further stated that the President’s reasons for rejecting candidates are likely to have a chilling effect on potential candidates to the extent that it suggests that the President maintains a system of surveillance to gather embarrassing information about citizens of a certain socio-political orientation, which is used to block their judicial appointment.
Khama had stated in the court papers that some of the considerations he takes when appointing judges include matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary and questions of policy.
“The applicants submit that the President cannot on the advice of Cabinet and “his own advisors” when the Constitution itself provides that he rely on the JSC advice and no other. The President is not bound to solicit the advice of any other person. In this case his decision falls to be reviewed and set aside because he took into account irrelevant considerations,” Moipolai pointed out.
Nonetheless, the JSC has filed papers in support of the President’s decision and maintains that it decisions are confidential.
The JSC is a body that approve judges from appointment subject to a formal tradition of appointment by the Presi8dent. The role of the JSC in the appointment process is so vital that without the JSC processes, advice and recommendation, the President will not be able to consider and appoint any candidate.
Thus the only criteria for appointment is that followed by the JSC and appointment can only be made according to the advice of the JSC not any other advice, but the President maintains he has the right to refuse a name and cause the JSC to recommend another name for appointment as it happened in the Motumise case.
The JSC however had argued that the current practices and procedures of the JSC and the President have served the country well. However the LSB is adamant on its opposition of this assertion and submitted before court that the JSC has not substantiated its claim that the current appointment practices have served the country well as there is no empirical evidence to support the assertion.
“JSC was set up to protect and promote the judicial independence of judges whose appointment and discipline might otherwise be subjected to political manipulation. The complete secrecy in relation to the appointment processes of the JSC is unreasonable and unjustified and not in line with the processes of other jurisdictions such as Kenya, South Africa, the United States and more recently Zimabwe which held its first public interviews for candidates for judicial appointment in 2014,” Moipolai added.
Moipolai however maintains that it is not LSB’s intention to prescribe any particular procedure for the JSC, but that they strongly feel that the current practice of the JSC does not accord with the principles of transparency and openness that is required and that can be justifiable in a democratic country.
Presidential Commission of Inquiry into the Review of the Constitution held a meeting in Serowe this week. The meeting was to accord Bangwato, just like other tribes, a platform to give their opinions, contributions and what they think is the horse power and limitations of the current Constitution of Botswana.
Bangwato Regent, Kgosi Serogola Seretse said, he is of the understanding that the Commission has not come for anything apart from getting their opinions on how things could be made better. His contribution was that he solely knows of only two social positions in the world; Dikgosi and Pastors. He said other positions are just benedictions. He further urged that, Batswana should respect God’s ordained protocols such as Dikgosi and Pastors.
Seretse pointed out the importance of acknowledging and appreciating Dikgosi as nation builders. He cautioned and warned that, the Commission should ensure that their dealing with Dikgosi is harmonious. He called for an amendment to be made on the ‘National Order of Precedence’ noting that Dikgosi are put at number 11, but should at least be taken a little higher to number 7.
One resident, Tshepo Moloi while giving his contribution said there must be provisions of Social Justice that ensure equal distribution of resources to all citizens. He said this provision should entail an obligation that all citizen have equal opportunities to different Government Initiatives. Moloi substantiated that, all ‘Presidential Commissions’ be engraved on the Constitution
Alfred Thogolwane who is as well a resident of the biggest village in the Central District, pointed out the need for preservation of the country and resources thereof, saying “it must dawn onto all that, the calabash that fetches water for the family cannot fixed once its broken.” Another resident, Keikantsemang Sebedi advocated for Polygamous marriage, saying that men should marry as many wives as they please. She said there is no need for any socioeconomic assessment done on men who wish to marry more than one wife.
She advised that, the country should benchmark from the Zezuru culture that does it, with no complexities. On the other hand, Sebedi said that, there must be considerations done on the Old Age Pension. She said people who earned P4000 should not receive the old Age Pension upon their fullness of age. Forshia Koloi called for amendments on Section 77 and all the provisions that speaks to the subject of Bogosi and the powers infested in them. He said they should be made more detailed and avoid ambiguity in clauses.
Mr Tlhaodi said there must be Land Audits done in the country. Citing an example of the Tati Land as one that should be thoroughly audited. He further advised that, Election Day be put on the Calendar. He said, if it happens that the day be a Saturday, there should be some special dispensation for the 7th Day Adventist Church members to take part in voting without compromising on their day of worship. Tlhaodi added that there must be People’s Complaint Commission in the country.
Speakers emphasized the need for the country to review the exercise of ‘Political Party Funding’. They articulated that lack of funding political parties’ results in political parties resorting to finding funds for themselves. They reiterated that sometimes going to the extent of getting funds through illegal means. Bangwato agreed in one accord that they want the President be tried whilst in office if suspected of any criminal offences. This was revealed in their contributions. They pointed out that, the law should not to wait until the end of their tenure.
For his part, the Deputy Chairperson of the Commission Johnson Motshwarakgole expressed gratitude to the residents of Serowe. He applauded women for their kindness saying it is only them, who always take responsibility for doing things amicably in the society.
Parliament has revealed that it plans to rollout a Community Score Card (CSC) exercise as part of sweeping reforms to its role and mandate among others.
The planed shakeup, along with the rollout of CSC will see creation of new Parliamentary Portfolio Committees on Health, HIV&AIDS, Education and Skills Development, Trade and Economic Development, Agriculture, Lands and Housing and Local Governance and Social Welfare. Parliament informed government ministries and departments that the CSC is a participatory, community based monitoring and evaluation tool that enables citizens to assess the quality of public services and interact with services providers to express their concerns.
According to Parliament, the CSC will assist to inform community members about available services and their entitlements and to solicit their opinions about the accessibility and quality of certain services related to the portfolio committees mentioned. It said the main objective is for Parliament through identified oversight committees is to conduct a participatory monitoring and evaluating process that puts ownership and responsibility for delivery of services in the hands of both the Government and the service recipients.
“Through scorecards developed around identified sectors and services, communities and implementing departments remain in touch with progress made through the programme delivery cycle and are able to respond timely to bottlenecks,” the National Assembly said. Some of the measurements and expected outcomes for the rolling out of the CSC include among others, improved monitoring and economic evaluation, to determine the impact of spending, so as to be able to direct resources from where they having the least benefit to those projects and programmes where they will have a larger positive impact.
The National Assembly explained further that this could result in a willingness to close down ineffective programmes and institutions and not to implement projects that do not deliver adequate returns, improved productivity in the public services, especially given the substantial pay increases.
The National Assembly believes that the rolling out of CSC is also expected to result in efficiency savings: many public services and programmes could be delivered more effectively at lower costs, by improving management and accountability, and making use of e-services. “This would yield financial savings that could be used for development programmes or reducing the deficit,” the National Assembly said.
The exercise is also expected to result in “Careful scrutiny of subsidy schemes and termination of those that do not address market failure or assist truly needy Batswana.” The National Assembly revealed that proposed Parliamentary Portfolio Committee on Health and Wellness has been established in accordance with the Standing of National Assembly of Botswana. It explained that the mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Ministries, Departments and Agencies with portfolio responsibilities in respect of Health and HIV/AIDS.
“There is need to identify reasons for inefficiency and poor outcomes and ensure that health system reform improve productivity and value for money. Key areas of focus for scorecard, availability of drugs, staffing ratios, accessibility of health services, speciality care and services and sexual reproductively health,” the National Assembly said.
Another proposed Committee is on Local Governance and Social Welfare. The mandate of the Committee is mainly to exercise Parliamentary Oversight and Scrutiny over Government Ministries. Departments and Agencies with Portfolio responsibilities in respect of Local Governance and Social Welfare.
“Strategies under NDP 11 to improve outcomes of social uplifment include; diversiﬁcation of rural economies, development and support of small businesses, provision of social safety nets, eradication of absolute poverty, provision of quality and equitable education and harmonisation of social protection programmes,” said the National Assembly. It said social nets need to be improved so as to target these most in need (at present some social safety nets benefit many people who are not the most needy, but also miss out some of those who are needy).
“Some social development policies more broadly should also aim to reduce household vulnerability to shocks such as those arising from fluctuations in agriculture, climate change, incomes and employment and improve their ability to handle shocks, thereby building household resilience,” the National Assembly said.
Another Committee established is on Agriculture, Lands and Housing. The mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Institutions, Departments and Agencies with portfolio responsibilities in respect of Agriculture, Lands and Housing.
The National Assembly said the average growth rate of the agricultural sector since the beginning of National Development Plan 11 (NDP11) (i.e. during the 2017/2018 and 2018/19 financial years) was 2.5 percent, making it the slowest growing sector of the economy, in line with its historical performance.
“Over the same period, its share of GDP has been stagnant at around 2 percent. The sector also contributes job opportunities for about 80 000 adults. Food security has become paramount since the onset of the corona virus pandemic,” the National Assembly said. The National Assembly said the Government realises the need to increase food production for products in which Botswana has a cooperative advantage such as beef, grains and other horticulture products.
The Committee on Finance, Trade and Economic Development has also been established. One of the mandates of Committee would be to exercise Parliamentary oversight and scrutiny over government ministries, departments and agencies with portfolio responsibilities in respect of Finance, Development, Trade and Industry.
“The sector is at the core of industrialisation aspirations and strategies for economic development in Botswana. Manufacturing in particular can be the driver of economic growth through technological improvements and innovation,” the National Assembly said. Hence, it said, the development of the sector could also foster export diversification and export led-growth in Botswana while benefitting from the African Continental Free Trade Area (AFCFTA).
Two senior members of Directorate on Corruption and Economic Crime (DCEC) have threatened legal action against Directorate of Intelligence and Security (DIS), it has transpired. The threat is contained in an answering affidavit of Director General of DCEC, Tymon Katlholo in which he is seeking an interdiction from High Court to stop the DIS from accessing investigation files at his office.
After the DIS detained DCEC officials Joao Salbany and Tsholofelo Bareetsi on December 16, 2021, they filed an official complaint against DIS and some officials. They complained about abuse of office by DIS and five officers. Salbany and Bareetsi also complained about unlawful detention by DIS and unlawful dissemination of classified information contrary to Section 44 of Corruption and Economic Crime Act. “The DIS interviews were premised on information divulged during the course of official DCEC work product, that is the Monday media brief meeting,” they wrote.
They further requested leave to institute a civil suit against the DIS and its officers, and invariably the State for inhuman and degrading treatment they suffered and unlawful detention. They also pondered a declaratory seeking a sanction against the DIS and Botswana Police Service (BPS) and clarification of the role of BPS officers seconded to DIS.
“The envisaged suit against BPS and DIS officers and the DIS will inevitably centre on investigations done by the DCEC and the scope of the protection availed to DCEC officers for conduct done in the course and scope of DCEC official duties.” The duo said it was self-evident from the conduct of the DIS officers that there was nothing urgent about the information required by the DIS, justifying their detention at its Sebele facility from 08:30 hours on December 16, 2021 until 02:00 hours on December 17, 2021.
They reasoned that the information required by the DIS could have been obtained by a simple request to DCEC Director General. “What the DIS did was to seek to intimidate officers of the DCEC whom they knew were carrying out investigations against some of the DIS officers who were part of their investigation team. This turn of events has a chilling effect not only on the functioning of the DCEC but also on the official conduct of officers of the DCEC as to how they conduct their official duties.”
They concluded by stating that in the event the request is granted, they would further request to be advised as to the provision of legal representation as the unalwful detention and the degrading and inhuman treatment by the DIS was in relation to matters conducted by and on behalf of the DCEC.