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Khama accused of manipulating Judicial Service Commission


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.

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Seretse, Kgosi may walk free

30th October 2020
BAKANG SERETSE

The P250 million National Petroleum Fund (NPF) saga that has been before court since 2017 seems to be losing its momentum with a high possibility of it being thrown out as defence lawyers unmask incompetency on the part of the Directorate of Public Prosecution (DPP).

The Gaborone High Court this week ruled that the decision by the State to prosecute Justice Zein Kebonang and his twin brother, Sadique Kebonang has been reviewed and set aside. The two brothers have now been cleared of the charges that where laid against them three years ago.

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Understanding the US Electoral College and key election issues 

28th October 2020
Mark J Rozell

The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.

Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.

US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.

Dr Mark Rozell, a Dean of  the School of Policy and Government at George Mason University  in  Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.

“The founders of our Republic de-centralised  authority  significantly  in  creating  our  constitutional  system,  which  means that  they  gave  an  enormous  amount  of  independent  power  and  authority  to  State  and  local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.

Unlike  parliamentary  democracies, like Botswana the  United  States  does  not  have  all  of  the  national government elected in one year. They do not have what is commonly called mandate elections where  the  entire  federal  government  is  elected  all  in  one  election  cycle  giving  a  “mandate”  to  a particular political party to lead, and instead US have what are called staggered elections, elections over time.

The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators  serve  for  six  years  and  one  third  of  the  Senate is elected every  two  years.

For this election cycle, US citizens will be electing the President and Vice

President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.

An  important  facet  of  US electoral  system  to  understand  given  the  federalism  nature  of  the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.

“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State  is  assigned  a  number  of  electors  to  our  Electoral  College  and  the  candidate  who  wins  the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.

“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”

Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to  win  a  State  by  one  vote  to  win  a  100 percent of  its  electors,  the  margin  does  not  matter.

“Donald  Trump  won  many  more  States  by  smaller  margins,  hence  he  got  an  Electoral  College majority.”

Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.

“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going  to  break  with  the  popular  vote,’’ Dr Rozell said.

“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”

There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.

If however there are more candidates, and  this  happens  extremely  rarely,  and  a  third  candidate  got  some electors  to  the  Electoral  College  denying  the  two  major  party  candidates,  either  one  getting  a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.

“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.

BLUE STATES vs RED STATES

Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.

Many  states  have  populations  that  are  so  heavily  concentrated  in  the  Democratic party or the Republican party that there is really no competition in those states.

California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.

However there are swing  states, where  there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.

“So  it  ends  up  making  a  national  contest  for  the  presidency  actually  look  like  several  state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.

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Masisi to make things right with Dangote

26th October 2020

High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.

Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana.  “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.

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