Ndulamo Anthony Morima
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?
In recent years, using personal devices in working environments has become so commonplace it now has its own acronym, BOYD (Bring Your Own Device). Â But as employees skip between corporate tools and personal applications on their own devices, their actions introduce a number of possible risks that should be managed and mitigated with careful consideration.Â Consider these examples:
Si-lwli, a small family-run business in Wales, is arguably as niche a company as you could find, producing talking toys used to promote the Welsh language. Their potential market is small, with only some 300,000 Welsh language speakers in the world and in reality the business is really more of a hobby for the husband-and-wife team, who both still have day jobs.Â Yet, despite still managing to be successful in terms of sales, theÂ business is now fighting for survival after recently falling prey to cybercriminals. Emails between Si-Iwli and their Chinese suppliers were intercepted by hackers who altered the banking details in the correspondence, causing Si-Iwli to hand over ÂŁ18,000 (around P Âź m) to the thieves. That might not sound much to a large enterprise, but to a small or medium business it can be devastating.
Another recent SMB hacking story whichÂ appeared in the Wall Street Journal concerned Innovative Higher Ed Consulting (IHED) Inc, a small New York start-up with a handful of employees. IHED didnât even have a website, but fraudsters were able to run stolen credit card numbers through the companyâs payment system and reverse the charges to the tune of $27,000, around the same loss faced by Si-Iwli. Â As the WSJ put it, the hackers completely destroyed the company, forcing its owners to fold.
And in May 2019, the city of Baltimoreâs computer system was hit by a ransomware attack, with hackers using a variant called RobinHood. The hack, which has lasted more than a month, paralysed the computer system for city employees, with the hackers demanding a payment in Bitcoin to give access back to the city.
Of course, hackers target governments or business giants Â but small and medium businesses are certainly not immune. In fact, 67% of SMBs reported that they had experienced a cyber attack across a period of 12 months, according to a 2018 survey carried out by security research firm Ponemon Institute. Additionally, Verizon issued a report in May 2019 that small businesses accounted for 43% of its reported data breaches.Â Once seen as less vulnerable than PCs, smartphone attacks are on the rise, with movements like the Dark Caracal spyware campaign underlining the allure of mobile devices to hackers. Last year, the US Federal Trade Commission released a statement calling for greater education on mobile security, coming at a time when around 42% of all Android devices are believed to not carry the latest security updates.
This is an era when employees increasingly use their smartphones for work-related purposes so is your business doing enough to protect against data breaches on their employeesâ phones? The SME Cyber Crime Survey 2018 carried out for risk management specialists AON showed that more than 80% of small businesses did not view this as a threat yet if as shown, 67% of SMBs were said to have been victims of hacking, either the stats are wrong or business owners are underestimating their vulnerability.Â A 2019 report by PricewaterhouseCoopers suggests the latter, stating that the majority of global businesses are unprepared for cyber attacks.
Consider that a workstation no longer means a desk in an office: It can be a phone in the back of a taxi or Uber; a laptop in a coffee shop, or a tablet in an airport lounge.Â Wherever the device is used, employees can potentially install applications that could be harmful to your business, even from something as seemingly insignificant as clicking on an accidental download or opening a link on a phishing email.Â Out of the physical workplace, your employeesâ activities might not have the same protections as they would on a company-monitored PC.
Yet many businesses not only encourage their employees to work remotely, but assume working from coffee shops, bookstores, and airports can boost employeesâ productivity. Â Unfortunately, many remote hot spots do not provide secure Wi-Fi so if your employee is accessing their work account on unsecured public Wi-Fi,Â sensitive business data could be at risk. Furthermore, even if your employee uses a company smartphone or has access to company data through a personal mobile device, there is always a chance data could be in jeopardy with a lost or stolen device, even information as basic as clientsâ addresses and phone numbers.
BOYDs are also at risk from malware designed to harm and infect the host system, transmittable to smartphones when downloading malicious third-party apps.Â Then there is ransomware, a type of malware used by hackers to specifically take control of a systemâs data, blocking access or threatening to release sensitive information unless a ransom is paid such as the one which affected Baltimore.Â Ransomware attacks are on the increase, Â predicted toÂ occur every 14 seconds, potentially costing billions of dollars per year.
Lastly there is phishing â the cyber equivalent of the metaphorical fishing exercise – Â wherebyÂ cybercriminals attempt to obtain sensitive data âusernames, passwords, credit card details âusually through a phoney email designed to look legitimate which directs the user to a fraudulent website or requests the data be emailed back directly. Most of us like to think we could recognize a phishing email when we see it, but these emails have become more sophisticated and can come through other forms of communication such as messaging apps.
Bottom line is to be aware of the potential problems with BOYDs and if in doubt,Â consult your IT security consultants.Â You canât put the own-device genie back in the bottle but you can make data protection one of your three wishes!
âI Propose to Diana Tonightâ
About five days before Princess Diana and Dodi Al Fayed landed in Paris, General Atiku, a certain Edward Williams was taking a walk in a woods in the Welsh town of Mountain Ash. Williams, then 73, was a psychic of some renown. He had in the past foretold assassination attempts on US President Ronald Reagan, which occurred on March 30, 1981, and Pope John Paul II, which came to pass on May 13, 1981.
As he trudged the woods, Williams Â had a sudden premonition that pointed to Dianaâs imminent fate as per Christopher Andersenâs book The Day Diana Died. âWhen the vision struck me, it was as if everything around me was obscured and replaced by shadowy figures,â Williams was later to reminisce. âIn the middle was the face of Princess Diana. Her expression was sad and full of pathos. She was wearing what looked like a floral dress with a short dark cardigan. But it was vague. I went cold with fear and knew it was a sign that she was in danger.â
Williams hastily beat a retreat to his home, which he shared with his wife Mary, and related to her his presentiment, trembling like an aspen leaf as he did so. âI have never seen him so upset,â Mary recounted. âHe felt he was given a sign and when he came back from his walk he was deeply shaken.â
The following day, Williams frantically sauntered into a police station to inform the police of his premonition. The officer who attended to him would have dismissed him as no more than a crackpot but he treated him seriously in view of the accuracy of his past predictions. HeÂ took a statement and immediately passed it on to the Special Branch InvestigativeÂ Unit.
The report read as follows:
âOn 27 August, at 14:12 hrs, a man by the name of Edward Williams came to Mountain Ash police station. He said he was a psychic and predicted that Princess Diana was going to die. In previous years, he has predicted that the Pope and Ronald Reagan were going to be the victims of assassination attempts. On both occasions he was proved to be correct. Mr Williams appeared to be quite normal.â
Williams, General, was spot-on as usual: four days later, the princess was no more.
Meanwhile, General, Â even as Dodi and Diana were making their way to the Fayed-owned Ritz Hotel in central Paris, British newspapers were awash with headlines that suggested Diana was kind of deranged. Writes Andrew Morton in Diana in Pursuit of Love: âIn The Independent Diana was described as âa woman with fundamentally nothing to say about anythingâ. She was âsuffering from a form of arrested developmentâ. âIsnât it time she started using her head?â asked The Mail on Sunday. The Sunday Mirror printed a special supplement entitled âA Story of Loveâ; The News of the World claimed that William had demanded that Diana should split from Dodi: âWilliam canât help it, he just doesnât like the man.â William was reportedly âhorrifiedâ and âdoesnât think Mr Fayed is good for his motherâ â or was that just the press projecting their own prejudices? The upmarket Sunday Times newspaper, which had first serialised my biography of the princess, now put her in the psychiatristâs chair for daring to be wooed by a Muslim. The pop-psychologist Oliver James put Diana âOn the Couchâ, asking why she was so âdepressedâ and desperate for love. Other tabloids piled in with dire prognostications â about Prince Philipâs hostility to the relationship, Dianaâs prospect of exile, and the social ostracism she would face if she married Dodi.â
DIANA AND DODI AT THE RITZ
Before Diana and Dodi departed the Villa Windsor sometime after 16 hrs, General, one of Dodiâs bodyguards Trevor Rees-Jones furtively asked Diana as to what the programme for the evening was. This Trevor did out of sheer desperation as Dodi had ceased and desisted from telling members of his security detail, let alone anyone else for that matter, what his onward destination was for fear that that piece of information would be passed on to the paparazzi. Diana kindly obliged Trevor though her response was terse and scarcely revealing. âWell, eventually we will be going out to a restaurantâ, that was all Diana said. Without advance knowledge of exactly what restaurant that was, Trevor and his colleaguesâ hands were tied: they could not do a recce on it as was standard practice for the security team of a VIP principal.Â Dodi certainly, General, was being recklessly by throwing such caution to the winds.
At about 16:30, Diana and Dodi drew up at the Ritz Hotel, where they were received by acting hotel manager Claude Roulet. Â The front entrance of the hotel was already crawling with paparazzi, as a result of which the couple took the precaution of using the rear entrance, where hopefully they would make their entry unperturbed and unmolested. The first thing they did when they were ensconced in the now $10,000 a night Imperial Suite was to spend some time on their mobiles and set about touching base with friends, relations, and associates. Â Diana called at least two people, her clairvoyant friend Rita Rogers and her favourite journalist Richard Kay of The Daily Mail.
Rita, General, Â was alarmed that Diana had proceeded to venture to Paris notwithstanding the warning she had given Dodi and herself in relation to what she had seen of him Â in the crystal ball when the couple had consulted her. When quizzed as to what the hell she indeed was doing in Paris at that juncture, Diana replied that she and Dodi had simply come to do some shopping, which though partially true was not the material reason they were there. âBut Diana, remember what I told Dodi,â Rita said somewhat reprovingly. Diana a bit apprehensively replied, âYes I remember. I will be careful. I promise.â Well, Â she did not live up to her promise as we shall soon unpack General.
As for Richard Kay, Diana made known to him that, âI have decided I am going to radically change my life. I am going to complete my obligations to charities and to the anti-personnel land mines cause, but in November I want to completely withdraw from formal public life.â
Once she was done with her round of calls, Diana went down to the hair saloon by the hotel swimming pool to have her hair washed and blow-dried ahead of the scheduled evening dinner.
THE âTELL ME YESâ RING IS DELIVERED
Since the main object of their Paris trip was to pick up the âTell Me Yesâ engagement ringÂ Dodi had ordered in Monte Carlo a week earlier, Dodi decided to check on Repossi Jewellery, which was right within the Ritz prencincts, known as the Place Vendome. Â It could have taken less than a minute for Dodi to get to the store on foot but he decided to use a car to outsmart the paparazzi invasion. He was driven there by Trevor Rees-Jones, with Alexander Kez Wingfield and Claude Roulet following on foot, though he entered the shop alone.
The Repossi store had closed for the holiday season but Alberto Repossi, accompanied by his wife and brother-in-law, Â had decided to travel all the way from his home in Monaco Â and momentarily open it for the sake of the potentially highly lucrativeÂ Dodi transaction. Â Alberto, however, disappointed Dodi as the ring he had chosen was not the oneÂ he produced. The one he showed Dodi was pricier and perhaps more exquisite but DodiÂ was adamant that he wanted the exact one he had ordered as that was what Diana herself had picked. It was a ployÂ on the part of Repossi to make a real killing on the sale, his excuse to that effect being that Diana deserved a ring tha was well worthy of her social pedigree.Â With Dodi having expressed disaffection, Repossi rendered his apologies and assured Dodi he would make the right ring available shortly, whereupon Dodi repaired back to the hotel to await its delivery. But Dodi Â did insist nonetheless that the pricier ring be delivered too in case it appealed to Diana anyway.
Repossi delivered the two rings an hour later. They were collected by Roulet. On inspecting them, Dodi chose the very one he had seen in Monte Carlo, apparently at the insistence of Diana.Â There is a possibility that Diana, who was very much aware of her public image and was not comfortable with ostentatious displays of wealth, may have deliberately shown an interest in a less expensive engagement ring. It Â may have been a purely romantic as opposed to a prestigious Â choice for her.
The value of the ring, which was found on a wardrobe shelf in Dodiâs apartment after the crash, Â has been estimated to be between $20,000 and $250,000 as Repossi has always refused to be drawn into revealing how much Dodi paid for it. The sum, which enjoyed a 25 percent discount, was in truth paid for not by Dodi himself but by his father as was the usual practice.
Dodi was also shown Repossiâs sketches for a bracelet, a watch, and earrings which he proposed to create if Diana approved of them.
DIANA AND DODI GUSH OVER IMMINENT NUPTIALS
At about 7 pm, Â Dodi and Diana left the Ritz and headed for Dodiâs apartment at a place known as the Arc de Trompe. They went there to properly tog themselves out for the scheduled evening dinner. They spent two hours at the luxurious apartment. As usual, the ubiquitous paparazzi were patiently waiting for them there.
As they lingered in the apartment, Dodi beckoned over to his butler Rene DelormÂ and showed himÂ the engagement ring. âDodi came into my kitchen,â Delorm relates. âHe looked into the hallway to check that Diana couldnât hear and reached into his pocket and pulled out the box âŚ He said, âRene, Iâm going to propose to the princess tonight. Make sure that we have champagne on ice when we come back from dinnerâ.â Rene described the ring as âa spectacular diamond encrusted ring, a massive emerald surrounded by a cluster of diamonds, set on a yellow and white gold band sitting in a small light-grey velvet boxâ.
Just before 9 pm, Dodi called the brother of his step-father, Hassan Yassen, who also was staying at the Ritz Â that night, and told him that he hoped to get married to Diana by the end of the year.
Later that same evening, both Dodi and Diana would talk to Mohamed Al Fayed, Dodiâs dad, and make known to him their pre-nuptial intentions. âThey called me and said weâre coming backÂ (to London) on Sunday (August 31) and on Monday (September 1) they are
RAMADAN – The Blessed Month of Fasting
Ramadan is the fasting month for Muslims, where over one billion Muslims throughout the world fast from dawn to sunset, and pray additional prayers at night. It is a time for inner reflection, devotion to Allah, and self-control. It is the ninth month in the Islamic calendar. As you read this Muslims the world over have already begun fasting as the month of Ramadan has commenced (depending on the sighting of the new moon).
âThe month of Ramadan is that in which the Qur’an was revealed as guidance for people, in it are clear signs of guidance and Criterion, therefore whoever of you who witnesses this month, it is obligatory on him to fast it. But whoever is ill or traveling let him fast the same number of other days, God desires ease for you and not hardship, and He desires that you complete the ordained period and glorify God for His guidance to you, that you may be grateful”. Holy Qur’anÂ (2 : 185)
Fasting during Ramadan is one of the five pillars upon which the structure of Islam is built. The other four are: the declaration of oneâs belief in Allahâs oneness and in the message of Muhammad (PBUH); regular attendance to prayer; payment of zakaat (obligatory charity); and the pilgrimage to Mecca.
As explained in an earlier article, fasting includes total abstinence from eating, drinking, smoking, refraining from obscenity, avoiding getting into arguments and including abstaining from marital relations, from sunrise to sunset. While fasting may appear to some as difficult Muslims see it as an opportunity to get closer to their Lord, a chance to develop spiritually and at the same time the act of fasting builds character, discipline and self-restraint.
Just as our cars require servicing at regular intervals, so do Muslims consider Ramadan as a month in which the body and spirit undergoes as it were a âfull serviceâ. This âserviceâ includes heightened spiritual awareness both the mental and physical aspects and also the body undergoing a process of detoxification and some of the organs get to ârestâ through fasting.
Because of the intensive devotional activity fasting, Ramadan has a particularly high importance, derived from its very personal nature as an act of worship but there is nothing to stop anyone from privately violating Allahâs commandment of fasting if one chooses to do so by claiming to be fasting yet eating on the sly. This means that although fasting is obligatory, its observance is purely voluntary. If a person claims to be a Muslim, he is expected to fast in Ramadan.
The reward Allah gives for proper fasting is very generous. Prophet Muhammad (PBUH) quotes Allah as saying: âAll actions done by a human being are his own except fasting, which belongs to Me and I will reward it accordingly.â We are also told by the Prophet Muhammad (PBUH) that the reward for proper fasting is admittance into heaven.
Fasting earns great reward when it is done in a âproperâ manner. This is because every Muslim is required to make his worship perfect. For example perfection of fasting can be achieved through restraint of oneâs feelings and emotions. Prophet Muhammad (PBUH) said that when fasting, a person should not allow himself to be drawn into a quarrel or a slanging match. He teaches us: âOn a day of fasting, let no one of you indulge in any obscenity, or enter into a slanging match. Should someone abuse or fight him, let him respond by saying: âI am fasting!ââ
This high standard of self-restraint fits in well with fasting, which is considered as an act of self-discipline. Islam requires us to couple patience with voluntary abstention from indulgence in our physical desires. The purpose of fasting helps man to attain a high degree of sublimity, discipline and self-restraint. In other words, this standard CAN BE achieved by every Muslim who knows the purpose of fasting and strives to fulfill it.
Fasting has another special aspect. It makes all people share in the feelings of hunger and thirst. In normal circumstances, people with decent income may go from one yearâs end to another without experiencing the pangs of hunger which a poor person may feel every day of his life. Such an experience helps to draw the rich oneâs conscience nearer to needs of the poor. A Muslim is encouraged to be more charitable and learns to give generously for a good cause.
Fasting also has a universal or communal aspect to it. As Muslims throughout the world share in this blessed act of worship, their sense of unity is enhanced by the fact that every Muslim individual joins willingly in the fulfillment of this divine commandment. This is a unity of action and purpose, since they all fast in order to be better human beings. As a person restrains himself from the things he desires most, in the hope that he will earn Allahâs pleasure, self-discipline and sacrifice become part of his nature.
The month of Ramadan can aptly be described as a âseason of worship.â Fasting is the main aspect of worship in this month, because people are more attentive to their prayers, read the Qurâan more frequently and also strive to improve on their inner and outer character. Thus, their devotion is more complete and they feel much happier in Ramadan because they feel themselves to be closer to their Creator.