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The President is obliged to follow the JSC’s advice

Ndulamo Anthony Morima
EAGLE WATCH


The Constitution at sections 96(2) and 100(2) respectively provides that Judges of the High Court and the Court of Appeal shall be appointed by the President “acting in accordance with the advice of the Judicial Service Commission (JSC)”. While some, including the government, believe that this enjoins the JSC simply to make a recommendation that the President is not bound by, some, including the Law Society of Botswana (LSB), believe that the President is bound by such advice and has no discretion. It is this divergence of view that this article seeks to consider.

In such consideration, refuge will be sought under the rules of interpretation in our law. It is clear that the words ‘…acting in accordance with the advice…’ need to be interpreted judiciously in order for clarity to be achieved in this regard. First, we interpret the word ‘advise’. The rules of interpretation enjoin us to first seek the ordinary or literal meaning before resorting to the contextual or purposive meaning of the word. Second, we interpret the phrase ‘…acting in accordance with…’

According to the Oxford English dictionary, the meaning of the word advise includes giving counsel, giving guidance, making recommendations, offering suggestions, offering opinions, giving pointers, giving directions and giving instructions. While counsel, guidance, recommendations, suggestions, opinions and pointers are non- obligatory and endow on their recipient the discretion to follow them or not, directions and instructions are obligatory and leave the recipient with no discretion.

But, in terms of the word’s utility and ordinary meaning what does the ordinary person understand the word ‘advice’ to mean? For example, does an ordinary person think that a person who has a political or legal advisor is obliged without any discretion to follow the advisor’s advice? The ordinary person probably understands the word ‘advice’ to mean that a person in an inferior position makes recommendations to the superior who has the discretion to accept or decline such recommendations.

From the mixture of mandatory and non-mandatory words in the Oxford English dictionary’s definition of the word ‘advice’ it is clear that the literal meaning cannot conclusively be relied upon. We, therefore, resort to the contextual or purposive meaning. Here, we adopt the meaning which gives effect to the purpose for which the word was used in a particular context.

The context is that the President is enjoined to appoint judges of the High Court and the Court of Appeal ‘acting in accordance with the advice of the JSC’. The other context is that this JSC which renders this advice is, in terms of section 103 (1) of the Constitution, composed of the Chief Justice (CJ) as chairperson; the President of the Court of Appeal, the Attorney-General (AG); the Chairman of the Public Service Commission (PSC); a member of the Law Society nominated by the Law Society; and a person of integrity and experience not being a legal practitioner appointed by the President. Except for the former all members of the JSC are appointees of the President.

The other context is that in Botswana, the President, acting alone and without being enjoined to seek advice from anybody, appoints all other high ranking officials. The other context is that in terms of section 47(2) of the Constitution, “in the exercise of any function conferred upon him by the Constitution or any other law the President shall, unless it is otherwise provided, act in his own deliberate judgment and shall not be obliged to follow the advice tendered by any person or authority”. The other, and perhaps overriding, context is that sections 96(2) and 100(2) of the Constitution were inserted into the Constitution in order to ensure separation of powers, a cardinal pillar of our constitutional democracy. We now consider these contexts in turn.

 Assuming the word ‘advice’ in this context was intended to be mandatory, can the constitutional drafters have intended the President to be compelled to rubber stamp the recommendations of his appointees or subjects? Put differently, can the President’s appointees direct or instruct him to appoint someone? Ordinarily they cannot. But, this is no ordinary matter. It is a matter which touches on separation of powers.

But given that our President has the power to appoint other high ranking officials without seeking advice from anyone, why did our constitutional drafters include it in relation to the appointment of judges? Did they really want the JSC’s advice to be binding on the President or they merely wanted the President’s decision to be influenced by, among others, the JSC’s recommendations? Or true to the Constitution they gave effect to the very exception provided for by section 47(2) of the Constitution?

Ours is a constitutional democracy based on, among other pillars, separation of powers. Drafters of our constitution knew that our President is a partisan politician. Can they have really intended that the composition of the judiciary be determined by a partisan President who will in all likelihood appoint judges whose ideologies he shares? They probably did not intend that. But can they have intended that the President, in whom executive power vests in terms of section 47(1) of the Constitution, rubber stamps decisions of his servants? They probably did not intend that.

What then did they intend? Perhaps the answer lies in the words ‘acting in accordance with’. According to the Oxford English dictionary, the definitions of the word ‘accordance’ include in agreement with; in conformity with; in line with; in compliance with; true to; in fulfillment of; in obedience to; in the spirit of; following; honoring; heeding and observing. According to the plain meaning of these definitions, the President has no discretion, but to obey, or at least take heed, of the advice of the JSC.

Therefore, while the word ‘advise’ alone is non-obligatory, read together with the words ‘acting in accordance with’ it has a mandatory import, especially when interpreted within the context of such an overriding principle as separation of powers. If the President’s discretion alone was sufficient, the JSC’s advice would not have been required in terms of the Constitution.

That if compelled to follow the JSC’s advice the President would in essence be rubber stamping his servants’ decision is neither here nor there. Rubber stamping a decision of a constitutional institution, albeit subordinate, is not amiss if the institution’s loyalty to the Constitution is unshakable. Policy makers, themselves not experts in technical matters, rubber stamp hundreds of decisions every day. The President, for instance, rubberstamps many decisions by the Governor of the Bank of Botswana, some of which have more implications than a judge’s decisions.

The JSC, which comprises a practicing Attorney nominated by the society for Attorneys, the AG as the custodian of Attorneys’ practice, the CJ and the President of the Court of Appeal who are themselves judges, the Chairman of the PSC as the custodian of the public service and a person of integrity and experience not being a legal practitioner representing the public, knows better who is best suited to be a judge.

Members of the JSC, though mostly appointed by the President, are men and women whose professions are based on integrity and though they, like all human beings, have personal prejudices, such prejudices are moderated by the respect for their offices and the prejudices of the other members. On the contrary, the President’s prejudices, which are expectedly political, are unmoderated. His unfettered appointment of judges will, therefore, invariably compromise separation of powers and by extension the rule of law. Why else would the President not follow the advice of his own appointees if not for irrelevant considerations?

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DIS Parley Committee selection disingenuous 

25th November 2020

Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.

This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.

The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.

On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members.  The MPs in the Committee elect a chairperson from among their number at their first meeting.

The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.

The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed.  The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.

The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.

If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.

So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.

The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption.  Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.

The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus.  So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS.  They demand a start from a clean slate.

The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.

Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.

Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.

In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.

Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.

The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.

There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.

But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.

There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.

He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.

The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.

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The Maccabean Uprising

25th November 2020
Jewish freedom fighters

 Jews drive away occupying power under the command of guerrilla leader Judas Maccabees but only just

Although it was the Desolation Sacrilege act, General Atiku, that officially sparked the Maccabean revolt, it in truth simply stoked the fires of an already simmering revolution. How so General?

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Atomic (CON)Fusion

25th November 2020

For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way. 

I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However,  the topic of today’s article is the complete antithesis of ‘aha’.  Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.

No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.

I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century.  Now doesn’t that sound like the story of 2020 summed up in a single sentence?

The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.

In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”

The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying  ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.

  • Nothing happens until something moves
  • The secret of getting ahead is getting started

and

  • Act or be acted upon

All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD!  This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.

To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts:  *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”

As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide.  What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.

As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.

JM point out that “being confused, however, does not mean being incapacitated.  Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”

2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.

.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.

Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!

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