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Motumise responds to Khama

Mr President, I am not what you say I am – Motumise

The Law Society of Botswana (LSB) and Omphemetse Motumise, an attorney who President Lt Gen Ian Khama Seretse Khama recently refused to appoint as the judge of the High court maintains that Khama has violated the country’s constitution and has a strong case against him before court.


As the hearing date for the case draws nearer by the day, all parties involved in the matter including President Khama, Judicial Service Commission (JSC), LSB and Motumise continue to share heated points of contention which they intend to debate on before court.


This past Friday morning, Motumise and the LSB filed replying affidavits to President Khama and the JSC answering affidavits on the matter.


Motumise maintains that he ought to have been appointed the Judge of the High court because he is not what Khama perceive him to be.


‘Since I do not personally interact with the President, and he avers that he has reasons for rejecting advice to appoint me, he could only have derived any information about me from informants. The first respondent (President) does not explain why he cannot disclose his informants to me and allow me to face them in my defence. The reluctance to disclose reasons to me, if any exist, I submit is borne out of fear of placing on record the identity and modus operandi of the informants who would be operating outside the law by placing citizens under surveillance to collect allegedly private information,” Motumise had explained.


Hi says the criteria adopted by Khama and the circumstances under which it is applied are matters known only by him. This state of affairs according to Motumise is inconsistent with principles of legality as practised in a democratic society. He added that although the constitution obliges the President to appoint in accordance with the advice of the JSC, he has decided that he will prefer the advice of others to refuse to appoint. This approach he says makes the divide between the Executive and the Judiciary invisible and thereby politicises the appointment of judges.


“This is manifest from his reliance on political considerations and the advice of Cabinet. Our constitution never envisaged that judicial appointments could ever be debated by or subjected to Cabinet approval,” Motumise stated and added that, he does not understand what purpose the criterion of the socio-political situation serves “nor is this explained, unless the first respondent is looking to appoint individuals whose social and political views, associations and orientation meet with his approval.”


That notwithstanding, Motumise wrote to the court that there is nothing in his socio-political orientation and background which renders him a threat to national security or unsuitable for appointment.


“I have been apolitical, non-partisan and independent as evidenced, among other things, by ten years I served as Deputy Chairperson of the Independent Electoral Commission, an appointment held under the Constitution of Botswana. I submit that those are some of the essential attributes of a person who seeks to hold judicial office. I also submit that a person who is partisan and politically orientated and active is unsuitable for appointment by the reason of the fact that he or she is liable to political manipulation and bias,” he further stated.


A few weeks ago, Khama has stated in his answering affidavit filed before court that when he makes appointment he takes into account a broad range of material considerations including matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary and questions of policy, and by implication suggested that Motumise could have failed to satisfy some.


The LSB Executive Secretary argues that the considerations cited by President Khama are irrelevant to the appointment of the Judges. Nonetheless, Motumise who would want his name cleared before the court denies that he could have failed the test as even remotely, he can never be a national security threat or “whatsoever.”


“I submit that no discretion can be exercised duly, lawfully and properly when a person’s reputation is tarnished without being afforded a hearing. The first respondent implies that disclosing such information might be embarrassing to me. But he could disclose it to me and afford me an opportunity to defend myself and to contest the veracity of any adverse information he holds against me. He does not explain why as a citizen of this country I am not entitled to that fundamental constitutional right. What is embarrassing and humiliating is the very suggestion that the President might be holding embarrassing information about a citizen,” Motumise further stated.


A court of law, Motumise intends to submit, cannot be called upon to accept that an official duty was performed duly, lawfully and properly in the absence of reasons. His contention is that to deny him reasons is to deny him due process and the protection of law.


He however agreed with Khama that there should be checks and balances between the Judiciary and the Executive.


“But I submit that it cannot be correct that only he can check and balance the judiciary while it cannot in turn review the exercise of his powers.”


Khama had contended that the court does not have the power to review his decision of refusing to appoint Motumise as the Judge of the High court.


The LSB however maintains that the case does not centre on the reviewability of President Khama’s decision not to appoint Motumise as a judge of the High court but rather the interpretation of section 96 (2) of the constitution which the President derived his powers from.


In addition to the order reviewing and setting aside of the President’s decision not to appoint Motumise, the applicants seek further declaratory relief in relation to Khama’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.

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