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.
The newly elected Botswana Movement for Democracy (BMD) Executive Committee led by Pastor Reverend Thuso Tiego has declared their disapproval of homosexuality saying it is anti-Christianity and Botswana culture.
Speaking at a Media Briefing this past week, BMD President Tiego said Botswana has been a country that respects culture hence endorsing homosexuality will be catastrophic.
“Our young generation grew up being taught about types of families, if homosexuality is passed, at what age will our children be introduced to homosexuality?” he rhetorically asked.
He continued: “If we are going to allow homosexuality then the next day, another person will come and say he wants to practice bestiality. What are we going to do because we have already allowed for this one (homosexuality) and at the end it will be a total mess.” Bestiality is sexual relations between a human being and an animal
This according to Tiego will give those people an opportunity thus disrupting known Botswana beliefs. He however dismissed any notion that the decision to condemn homosexuality should not be linked to the top two of the committee who are men of cloth. “This is a decision by the whole committee which respects the culture of Botswana and it should not be perceived that because we are clergymen we are influencing them, but even if we do, politics and religion are inter-related.”
Of late the church and the human rights organization have been up in arms because of the high court decision to allow for same sex marriages. Ministries ganged up, petitioned parliament and threatened to vote out any legislator who will support the idea. The ruling party, BDP which was to table the amendment in the constitution, ended up deferring it.
BMD President further revealed that he is aware of what really led to the split of the party and he is on course to transform as they approach 2024 elections.
“There are so many factors that led to split of party amongst others being leadership disputes, personal egos and ambitions, toxic factionalism and ideological difference just to mention a few, but we are transforming the party and I am confident that we will do well in the coming elections.
In addition, Tiego is hopeful that they will take the government as they feel it is time to rebrand Botswana politics and bring in fresh blood of leaders.
He further hinted that they are coming with positive transformation as they eye to better the lives of Batswana.
“When we assume government, we promise to be transparent, free and fair electoral processes and encourage pluralism as way of getting back to our roots of being a democratic country as it seems like the current government has forgotten about that important aspect,” Tiego explained.
Reeling under the increasing barrage of stinging international sanctions, the isolated North Korean regime is reportedly up to its old trickery, this time in a more complicated web of murky operations that have got the authorities of five southern African countries at sixes and sevens as they desperately try to tighten their dragnet around Pyongyang’s spectral network of illicit ivory and rhino horn trade.
It is an intricate network of poaching for elephant tusks and rhino horns that spans Botswana, Mozambique, South Africa and Zimbabwe, with the main sources of the contraband being Botswana and South Africa.
The syndicate running the illegal trafficking of the poached contraband is suspected to be controlled by two shadowy North Korean government operatives with close links to one Han Tae-song, a disgraced North Korean career diplomat who, while serving as the second secretary at his country’s embassy in Harare, Zimbabwe, was expelled in 1992 after he was fingered as the mastermind behind a similar illegal ring that was busted by the country’s authorities.
This disturbing tale of malfeasance by North Korean state actors is as real as it gets.
Recent reports indicate that authorities in the source countries are jointly battling to plug holes created by the shadowy syndicate which allegedly has on its payroll, park rangers, border officials and cross-border truck drivers.
Even more disturbing are allegations that some wildlife officials are conniving in misrepresenting numbers of retrieved rhino horns and ivory from poachers and getting kickbacks for their involvement in the pilfering of ivory and rhino horns from government stockpiles especially in South Africa.
In a shocking and well-orchestrated movie-style heist in South Africa, thieves in June this year made off with 51 rhino horns after breaking into a very secure government stockpile facility of the North West Parks Board (NWPB).
While some suspects from South Africa and Malawi were nabbed in a government sting operation, none of the rhino horns – 14 of which were very large specimens that can fetch serious money on the black market – were recovered.
A report of the heist said the police were lethargic by eight hours in responding to an emergency alert of the robbery which was described by North West police spokesperson Brigadier Sabata Mokgwabone as “… a case of business robbery…”
Thabang Moko, a security analyst in Pretoria says the military precision in the burglary, delays in police response, and failure to recover the stolen rhino horns is dubious. “This development lends credence to suspicions that some government officials could be part of a shadowy syndicate run by foreign buyers of rhino horns and ivory,” Moko says.
It is understood that in light of the rhino horns heist in North West, South Africa’s Minister of Environment, Forestry and Fisheries, Barbara Creecy on 1 August, shared her concerns to her counterparts in Botswana, Zimbabwe and Mozambique calling for greater regional cooperation to combat the illegal wildlife trafficking which she believes is being masterminded by the Far East’s buyers of the ill-gotten horns and ivory.
It is believed that foreign kingpins involved in perpetuating the illegal trade are mainly North Koreans vying against Vietnamese and Cambodian buyers in the quest for dominance of the illicit trade in rhino horns and ivory sourced from southern Africa.
Creecy’s concerns, which she also shared to South Africa’s state-run broadcaster SABC, echoed Moko’s worries that the North West heist may have been an inside job.
According to Creecy, there was a need for the International Criminal Police Organisation (Interpol)’s greater involvement in joint investigations by affected countries as there were indications of ‘local knowledge’ of the North West job and that syndicates, “Higher up the value chain actually recruit park rangers to the illegal ivory trade network.”
Botswana’s Environment and Tourism Minister Philda Kereng is on national record admitting that poaching was a source of headaches to her government, especially considering that the daring poachers were making successful incursions into secure areas protected by the Botswana Defence Force (BDF).
This came after poachers gunned down two white rhinos at the BDF-protected Khama Rhino Sanctuary in August 2022 despite Kereng putting the time frame of the killings between October and November 2022.
Kereng hinted at the existence of Asian controlled syndicates and acknowledged that the surge in poaching in Botswana is driven by the “increased demand for rhino horn on the international market” where in Asia rhino horns are believed to be potent in traditional medicines and for their imagined therapeutic properties.
Botswana has in the past recorded an incident of a group of an all-Asian reconnaissance advance team teams being nabbed by the country’s intelligence service in the Khama Rhino Sanctuary.
Masquerading as tourists, the group, with suspected links to North Korea and China, was discovered to be collecting crucial data for poachers.
Also according to reliable information at hand, an undisclosed number of wildlife parks rangers were arrested between September 2022 and January this year, after information surfaced that they connived in the smuggling of rhino horns and ivory from Botswana.
One of the rangers reportedly admitted getting paid to falsify information on recovered horns and ivory which were smuggled out of the country through its vast and porous eastern border with South Africa, and making their way to their final destination in Mozambique via back roads and farmlands in South Africa and Zimbabwe.
“We are aware that in the past year, some rhino horns and ivory illegally obtained from Botswana through poaching activities and shady deals by some elements within our wildlife and national parks department, have found their way out of the country and end up in Mozambique’s coastal ports for shipment to the Far East,” a Department of Wildlife and National Parks (DWNP) source says.
Independent investigations reveal that two North Korean buyers, one of them only identified as Yi Kang-dae [confirmed to be an intelligence official in the country’s state security apparatus], acting on behalf of the disgraced Han Tae-song, financed the entire operation on two occasions between 2022 and 2023, to move at least 18 rhino horns and 19 elephant tusks from Botswana, including pay-offs – mostly to border patrol and customs officials for safe passage – along the knotty conduit across South Africa’s north western lands, then across south-eastern Zimbabwe into Mozambique.
According to a trusted cross-border transport operator in Zimbabwe, the rhino horns and elephant tusks were illegally handed over to smugglers in Mozambique at an obscure illegal crossing point 15km north of Zimbabwe’s Forbes Border Post in November 2022 and February this year.
The end buyers in Mozambique? “It is quite an embarrassment for us, but we have solid evidence that two North Korean buyers, one of them who is linked to a former notorious diplomat from that country who has been in the past involved in such illegal activities in Zimbabwe, oversaw the loading of rhino horns and ivory onto a China-bound ship from one of our ports,” a top government source in Maputo said before declining to divulge more information citing ongoing investigations.
Yi Kang-dae and his accomplice’s whereabouts are presently unclear to Mozambican authorities whose dragnet reportedly recently netted some key actors of the network. Han Tae-song currently serves as North Korea’s ambassador to the United Nations in Switzerland.
North Korean diplomats have in the past used Mozambique as a final transit point for the shipment of rhino horns to the Far East.
In May 2015, Mozambican authorities nabbed two North Koreans, one of them a Pretoria-based diplomat and political counsellor identified as Pak Chol-jun after they were caught in possession of 4.5kg of rhino horn pieces and US$100,000 cash.
Pak’s accomplice, Kim Jong-su, a Taekwondo instructor also based in South Africa, was fingered as a North Korean spy and returned to North Korea under suspicious circumstances on the heels of Pak’s expulsion from South Africa in November 2016.
A security source in Zimbabwe closely following current developments says there is a big chance that Han Tae-song may have revived the old smuggling network he ran while posted in Zimbabwe in the 90s.
“The biting international sanctions against North Korea in the past decade may have prompted Han to reawaken his network which has been dormant for some time,” the source says. “There is no telling if the shady network is dead now given that Han’s two front men have not been nabbed in Mozambique. More joint vigilance is needed to destroy the operation at the source and at the end of the line.”
North Korean diplomats have, as early as October 1976, been fingered for engaging in illegal activities ranging from possession of and trade in ivory pieces, trade in diamonds and gold, the manufacture and distribution of counterfeit currencies, pharmaceuticals, and the sale on the black market, of a paraphernalia of drugs, cigarettes, alcohol and other trinkets on the back of protracted and biting international sanctions against the reclusive state for its gross human rights abuses against its own people and flagrant nuclear tests.
These illegal activities, according to a US Congressional Research Service (CRS) report, have raked in at least US$500m annually for the Pyongyang regime. Other global studies estimate that North Korea’s illegal earnings from the black market are around $1bn annually, and are being channelled towards the country’s nuclear weapons programme, while ordinary North Koreans continue to die of mass starvation.
In February 2014, Botswana, citing systematic human rights violations, severed ties with North Korea with the former’s president Mokgweetsi Masisi (then vice president) calling North Korea an ‘evil nation’ on 23 September 2016, at a United Nations General Assembly forum in Washington, USA.
Botswana has close to 132,000 elephants, more than any of its four neighbouring countries, namely Angola, Namibia, Zambia and Zimbabwe, according to a 2022 Kavango Zambezi Transfrontier Conservation Area (KAZA TFCA) Elephant Survey.
The rhino population in Botswana has significantly dwindled, with poaching a leading cause of the decimation of the country’s rhinos. Despite dehorning and relocating its diminishing rhino population from the extensive Okavango Delta to undisclosed sanctuaries, Botswana has since 2018, lost 138 rhinos to poachers.
The sharp spike in rhino poaching in Botswana came after the country’s government made a controversial decision to disarm park rangers in early 2018.
In a statement delivered in November 2022 to the Convention on International Trade in Endangered Species (CITES) CoP-19 in Panama, the Botswana government instead blamed the surge in poaching to a shift of foreign-sponsored organised poaching organisations from South Africa to Botswana.
“This increase in rhino poaching in Botswana coincided with a decline of rhino poaching in South Africa from 2018 to 2020, suggesting a displacement of the poaching syndicates from South Africa to Botswana,” the statement reads. “The recent decline in rhino poaching in Botswana (2021 and 2022, relative to 2020) coincides with the increase in rhino poaching in Namibia and South Africa, further suggesting displacement of the poaching syndicates across the sub-region.”
According to the Botswana government, as of 13 November 2022 the country has secreted its shrinking rhinos (only 285 white rhinos and 23 black rhinos) in undisclosed locations within the country’s borders.
South Africa has close to 15,000 rhinos. Between January and June 2022 alone, poachers killed 260 rhinos in South Africa for their horns. The country is home to the majority of Africa’s white rhinos, a species whose existence remains under threat of extinction due to poaching.
The major threat posed by foreign state actors including those from North Korea, to southern Africa’s rhino and elephant population remains grim as the bulk of the rhino horns and elephant tusks reportedly continue finding their way to the Far East, where China is being used as the major distribution centre.