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.
In a classic and shocking case of disgrace and dishonour to this country, the law enforcement agencies are currently struggling to cover up a damaging and humiliating scandal of having conspired to forge the signature of a Palapye Chief Magistrate, Rebecca Motsamai in an unlawful acquisition of the much-publicised 2019 warrant of arrest against Isaac Kgosi, the former director of the Directorate of Intelligence Services (DIS).
The cloak-and-dagger arrest was led by the DIS director, Brigadier Peter Magosi supported by the Botswana Police, Botswana Defence Force (BDF), with the Botswana Unified Revenue Services (BURS) which accused Kgosi of tax evasion, in the backseat.
Umbrella for Democratic Change (UDC) constituent members are struggling to reach an agreement over the allocation of wards for the imminent ward by-elections across the country.
Despite a Memorandum of Understanding (MoU) between Umbrella for Democratic Change (UDC), Botswana Patriotic Front (BPF) and Alliance for Progressives (AP) are said to be active, but the nitty-gritties are far from being settled.
The eight bye-elections will be a precursor of a somewhat delayed finalisation of the brittle MoU. The three parties want to draw a plan on how and who will contest in each of the available wards.
This publication has gathered that the negotiations will not be a run off the mill because there is already an impasse between the Botswana Congress Party (BCP) which is a UDC constituent and AP (currently negotiating to join umbrella).
The by-elections joint committee met last week at Cresta President Hotel in a bid to finalise allocation but nothing tangible came out of the gathering, sources say.
The cause of the stalemate according to those close to events, is the Metsimotlhabe Ward which the two parties have set their eyes on.
In 2019, he ward was won by Botswana Democratic Party’s (BDP) Andrew Sebobi who unfortunately died in a tragic accident in February last year.
Sebobi had convincingly won by 1 109 votes in the last elections; and was trailed by Sephuthi Thelo of the UDC trailed him with 631 votes; while Alliance for Progressives’ Innocent Moamogwe got 371 votes.
Thelo is a BCP candidate and as per UDC norm, incumbency prevails meaning that the BCP will contest since they were runners up. On the other hand, AP has also raised its hand for the same.
“AP asked for it on the basis that they have a good candidate but BCP did not agree to that request also arguing they have a better contestant,” one UDC member confided to this publication.
Notwithstanding Metsimotlhabe Ward squabble, it is said the by-election talks are almost a done deal, with Botswana National Front (BNF) tipped to take Boseja South ward in Mochudi East constituency. Botswana Patriotic Front (BPF) will be awarded Tamasane Ward in Lerala/Maunatlala constituency, sources say.
“But the agreement has to be closed by National Executive Committee (NEC),” emphasized the informant.
The NEC is said to have been cautioned not to back the wrong horse but rather rate with reason and facts.
UDC President, Duma Boko has told this publication that, “allocation is complete with two wards already awarded but with only one yet to be finalized,” he could not dwell into much details as to which party got what and the reasons for the delay in finalisation.
Chairperson of the by-elections committee, Dr. Phenyo Butale responded to this publication regarding the matter: “As AP we contested and as you may be aware we signed the MoU with UDC and BPF to collaborate on bye-elections. The opposition candidate for all bye-elections will be agreed by these parties and that process is still ongoing,” he said when asked if AP is interested on the ward and how far with the talks on bye-elections.
Butale, a former Gaborone Central Member of Parliament, who is also AP Secretary General continued to say, “As the chairperson of the bye-elections committee we are still seized with that matter. We should also do some consultations with the local structures. Once the process is complete we will issue a notice for now we cannot talk about the other two while the other is still pending the other one”.
Butale further clarified: “There is no such thing as AP and BCP not in agreement. It is an issue of signatories discussing and determining the opposition candidates across the three wards.”
Apart from the three wards, there are five more council wards that UDC is yet to allocate to cooperating partners.
FROM PALAPYE MEET: BPP CAUTION NEC MEMBERS
With the UDC cheerful from last weekend’s meeting in Palapye, the meeting however was very tense on the side of both BCP and BNF, with only BPP flexing its muscle and even lashing out.
BCP going into the meeting, had promised to ask difficult questions to the UDC NEC.
BCP VP and also acting Secretary General, Dr. Kesitegile Gobotswang, presented their qualms which were addressed by UDC Chairperson Motlatsi Molapisi, informants say.
It is said Molapisi is fed up and concerned by some UDC members especially those in the NEC who ‘wash party’s dirty linen in public’.
Insiders say the veteran politician cautioned the NEC members that they “will not expel any party but individuals who tarnish the image of the UDC.”
It is not the first time BPP play a paternalistic role as it once expressed its discontent with BCP in 2020, saying it should never wash UDC linen in public.
At first it is said, BPP, the oldest political formation in Botswana, claims disappointment on BCP stance that UDC should be democratised especially by sharing their stand with the media. Again, BPP was not happy with BCP leader Dumelang Saleshando’s decision to air his personal views on social media regarding the merger of UDC party.
Botswana Police Service (BPS) Commissioner, Keabetswe Makgophe, has of late been dousing raging fires from various quarters of society following the infiltration of the police fingerprint system by the Directorate on Intelligence and Security (DIS), WeekendPost has learnt.
Fresh information gleaned from a number of impeccable sources, points to a pitiable working relationship between the two state organs. Cause of concern is the DIS continuous big brother role to an extent that it is now interfering with other institutions’ established mandates.
BPS which works closely with the DIS has been left exasperated by the works of the institution formed in 2008. It is said, the DIS through its Information Technology (IT) experts in collusion with some at BPS forensics department managed to infiltrate the Fingerprint system.
The infiltration, according to those in the know, was for the DIS to “teach a lesson” to some who are on their radar. It is said the DIS is playing and fighting dirty to win the fights they have lost before.
By managing to hack the police finger print system, a number of renowned businessmen and other politically exposed persons found their fingers in the system. What surprised the victims is the fact that they have never been charged of any wrongdoing by the police and they were left reeling in shock to learn that their fingers are on the data-base of criminals.
In fact, some of those who their fingerprints were falsely included in the records of those on the wrong side of law learnt later when other errands demanded their fingerprints.
“We learnt later when we had to submit and buy some documents and we were very shocked,” one politician who is also a businessman confided to this publication this week.
“We then learn that there are some fabricated criminality recorded for us, as to when did we commit those remained secret to the police, but then we had to engage our lawyers on the matter and that is when we were cleared,” said the politician-cum- tenderpreneur.
The lawyers have confirmed engaging the police and that the matters were settled in a gentlemen’s agreement and concluded.
All these happened behind the scenes with the police top brass oblivious only to be confronted by the irked lot, police sources also add. The victimized group who most of them have been fighting lengthy battles with the DIS read malice and did not blink when it was revealed that these were done by the DIS.
“And it was clear that they (DIS) are the ones in this dirty war which we don’t understand. Remember when we sue, it will be the Police at the courts not the DIS and that is why we agreed to a ceasefire more so they also requested that be kept under carpet,” said the victim.
Nonetheless, the Police through its spokesperson Assistant Commissioner, Dipheko Motube, briefly said: “we do not have any system that has been hacked.” On the other hand DIS mouthpiece Edward Robert was not in office this week to comment on the matter.
Reports however say DIS boss, Peter Magosi, who most of the victims accuse of the job, is said to have met his police counterpart Makgophe to put the matter to bed.
COVID-19 RAVAGES POLICE
As frontline workers, Police have not escaped the wrath of Covid-19. Already the numbers of those infected has reached the highest of high and they suggest that they be priorities on vaccine rollout.
“Our job is complicated, firstly we arrest including those who are non-compliant to Covid protocols and we go to accidents and many more. These put us at risk and it seems our superiors are not bothered,” said one police officer this week.
The cops further complain about that working spaces are small, as such expose them to contact the virus.
“Some tests positive and go for quarantine while the rest of the unit will be left without even test carried out. If at all the bosses are serious all the police officers should every now and then be subjected to testing or else we will be no more because of the virus,” added another officer based in Gaborone.
The government has since placed teachers on the priority list for the vaccines, it remains to be seen whether the police, who also man road blocks, will be considered.
“But our bosses should convince the country leadership about this, if not then we are doomed,” concluded a more senior officer.