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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Nigerians, Zimbabweans apply for Chema Chema Fund
Fronting activities, where locals are used as a front for foreign-owned businesses, have been a long-standing issue in Botswana. These activities not only undermine the government’s efforts to promote local businesses but also deprive Batswana of opportunities for economic empowerment, officials say. The Ministry of Trade and Industry has warned of heavy penalties for those involved in fronting activities especially in relation to the latest popular government initiative dubbed Chema Chema.
According to the Ministry, the Industrial Development Act of 2019 clearly outlines the consequences of engaging in fronting activities. The fines of up to P50,000 for first-time offenders and P20,000 plus a two-year jail term for repeat offenders send a strong message that the government is serious about cracking down on this illegal practice. These penalties are meant to deter individuals from participating in fronting activities and to protect the integrity of local industries.
“It is disheartening to hear reports of collaboration between foreigners and locals to exploit government initiatives such as the Chema Chema Fund. This fund, administered by CEDA and LEA, is meant to support informal traders and low-income earners in Botswana. However, when fronting activities come into play, the intended beneficiaries are sidelined, and the funds are misused for personal gain.” It has been discovered that foreign nationals predominantly of Zimbabwean and Nigerian origin use unsuspecting Batswana to attempt to access the Chema Chema Fund. It is understood that they approach these Batswana under the guise of drafting business plans for them or simply coming up with ‘bankable business ideas that qualify for Chema Chema.’
Observers say the Chema Chema Fund has the potential to uplift the lives of many Batswana who are struggling to make ends meet. They argue that it is crucial that these funds are used for their intended purpose and not siphoned off through illegal activities such as fronting. The Ministry says the warning it issued serves as a reminder to all stakeholders involved in the administration of these funds to ensure transparency and accountability in their disbursement.
One local commentator said it is important to highlight the impact of fronting activities on the local economy and the livelihoods of Batswana. He said by using locals as a front for foreign-owned businesses, opportunities for local entrepreneurs are stifled, and the economic empowerment of Batswana is hindered. The Ministry’s warning of heavy penalties is a call to action for all stakeholders to work together to eliminate fronting activities and promote a level playing field for local businesses.
Meanwhile, the Ministry of Trade and Industry’s warning of heavy penalties for fronting activities is a necessary step to protect the integrity of local industries and promote economic empowerment for Batswana. “It is imperative that all stakeholders comply with regulations and work towards a transparent and accountable business environment. By upholding the law and cracking down on illegal activities, we can ensure a fair and prosperous future for all Batswana.”
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Merck Foundation and African First Ladies mark World Health Day 2024
Merck Foundation, the philanthropic arm of Merck KGaA Germany marks “World Health Day” 2024 together with Africa’s First Ladies who are also Ambassadors of MerckFoundation “More Than a Mother” Campaign through their Scholarship and Capacity Building Program. Senator, Dr. Rasha Kelej, CEO of Merck Foundation emphasized, “At Merck Foundation, we mark World Health Day every single day of the year over the past 12 years, by building healthcare capacity and transforming patient care across Africa, Asia and beyond.
I am proud to share that Merck Foundation has provided over 1740 scholarships to aspiring young doctors from 52 countries, in 44 critical and underserved medical specialties such as Oncology, Diabetes, Preventative Cardiovascular Medicine, Endocrinology, Sexual and Reproductive Medicine, Acute Medicine, Respiratory Medicine, Embryology & Fertility specialty, Gastroenterology, Dermatology, Psychiatry, Emergency and Resuscitation Medicine, Critical Care, Pediatric Emergency Medicine, Neonatal Medicine, Advanced Surgical Practice, Pain Management, General Surgery, Clinical Microbiology and infectious diseases, Internal Medicine, Trauma & Orthopedics, Neurosurgery, Neurology, Cardiology, Stroke Medicine, Care of the Older Person, Family Medicine, Pediatrics and Child Health, Obesity & Weight Management, Women’s Health, Biotechnology in ART and many more”.
As per the available data, Africa has only 34.6% of the required doctors, nurses, and midwives. It is projected that by 2030, Africa would need additional 6.1 million doctors, nurses, and midwives*. “For Example, before the start of the Merck Foundation programs in 2012; there was not a single Oncologist, Fertility or Reproductive care specialists, Diabetologist, Respiratory or ICU specialist in many countries such as The Gambia, Liberia, Sierra Leone, Central African Republic, Guinea, Burundi, Niger, Chad, Ethiopia, Namibia among others. We are certainly creating historic legacy in Africa, and also beyond. Together with our partners like Africa’s First Ladies, Ministries of Health, Gender, Education and Communication, we are impacting the lives of people in the most disadvantaged communities in Africa and beyond.”, added Senator Dr. Kelej. Merck Foundation works closely with their Ambassadors, the African First Ladies and local partners such as; Ministries of Health, Education, Information & Communication, Gender, Academia, Research Institutions, Media and Art in building healthcare capacity and addressing health, social & economic challenges in developing countries and under-served communities. “I strongly believe that training healthcare providers and building professional healthcare capacity is the right strategy to improve access to equitable and quality at health care in Africa.
Therefore, I am happy to announce the Call for Applications for 2024 Scholarships for young doctors with special focus on female doctors for our online one-year diploma and two year master degree in 44 critical and underserved medical specialties, which includes both Online Diploma programs and On-Site Fellowship and clinical training programs. The applications are invited through the Office of our Ambassadors and long-term partners, The First Ladies of Africa and Ministry of Health of each country.” shared Dr . Kelej. “Our aim is to improve the overall health and wellbeing of people by building healthcare capacity across Africa, Asia and other developing countries. We are strongly committed to transforming patientcare landscape through our scholarships program”, concluded Senator Kelej.
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Interpol fugitive escapes from Botswana
John Isaak Ndovi, a Tanzanian national embroiled in controversy and pursued under a red notice by the International Criminal Police Organization (Interpol), has mysteriously vanished, bypassing a scheduled bail hearing at the Extension 2 Magistrate Court in Gaborone. Previously apprehended by Botswana law enforcement at the Tlokweng border post several months earlier, his escape has ignited serious concerns.
Accused of pilfering assets worth in excess of P1 million, an amount translating to roughly 30,000 Omani Riyals, Ndovi has become a figure of paramount interest, especially to the authorities in the Sultanate of Oman, nestled in the far reaches of Asia.
The unsettling news of his disappearance surfaced following his failure to present himself at the Extension 2 Magistrate Court the preceding week. Speculation abounds that Ndovi may have sought refuge in South Africa in a bid to elude capture, prompting a widespread mobilization of law enforcement agencies to ascertain his current location.
In an official communiqué, Detective Senior Assistant Police Commissioner Selebatso Mokgosi of Interpol Gaborone disclosed Ndovi’s apprehension last September at the Tlokweng border, a capture made possible through the vigilant issuance of the Interpol red notice.
At 36, Ndovi is implicated in a case of alleged home invasion in Oman. Despite the non-existence of an extradition treaty between Botswana and Oman, Nomsa Moatswi, the Director of the Directorate of Public Prosecution (DPP), emphasized that the lack of formal extradition agreements does not hinder her office’s ability to entertain extradition requests. She highlighted the adoption of international cooperation norms, advocating for collaboration through the lenses of international comity and reciprocity.
Moatswi disclosed the intensified effort by law enforcement to locate Ndovi following his no-show in court, and pointed to Botswana’s track record of extraditing two international fugitives from France and Zimbabwe in the previous year as evidence of the country’s relentless pursuit of legal integrity.
When probed about the potential implications of Ndovi’s case on Botswana’s forthcoming evaluation by the Financial Action Task Force (FATF), Moatswi reserved her speculations. She acknowledged the criticality of steering clear of blacklisting, suggesting that this singular case is unlikely to feature prominently in the FATF’s assessment criteria.