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Is the CoA Act amendment Bill constitutional?

Ndulamo Anthony Morima


Following the recent High Court judgment in terms of which Justice Abednego Tafa held, inter alia, that the appointment of some Court of Appeal (CoA) Judges is invalid, the Minister of Defence, Justice and Security, Honourable Shaw Kgathi has gazetted the CoA Act Amendment Bill.

The Bill proposes that Section 4 of the CoA Act (hereinafter referred to as “the Act”) prescribes the number of Justices of Appeal to be twelve. It also proposes that the tenure of office of a Judge of the CoA be increased from 70 years to 80 years. While it seems there is no opposition to the proposal to prescribe the number of Justices of Appeal to be twelve, there is opposition to the proposal to increase the tenure of office of Justices of Appeal from 70 to 80 years.

Considering the paramountcy of the proposed amendments to the Act, it is apposite that an enquiry into their constitutionality or lack thereof be made, hence this article. But before such enquiry it is instructive that a brief back ground is given. There were two core issues for determination by Justice Tafa. The first issue was whether section 4 of the Act is incompatible with section 99(2) of the Constitution and, therefore, invalid. The second issue was whether it is unconstitutional for the President to renew the appointment of a Justice of Appeal on the expiry of a three year appointment.  

With respect to the first issue, Justice Tafa held that “section 4 of the Act is constitutionally invalid and, therefore, struck down”. With respect to the second issue, he held that “the appointment of a Justice of Appeal on more than one fixed-term contract of three years term is unconstitutional”.

This article shall concern itself with whether or not the CoA Act Amendment Bill, especially the proposal to increase the tenure of office of Justices of Appeal from 70 to 80 years, is constitutional. The legal issue, in my view, is not about increasing the age tenure per se. It is about the method used to increase the age tenure. The questions are: Can the tenure be increased through amending the Act or it should be through amending the Constitution or both the Act and the Constitution?

The other question is: what legal process should precede the amendment of either the Act or the Constitution or both?  Should it be ordinary consultation of Batswana, as it is usually done through Kgotla meetings, or it should be through a referendum?

According Mmegi newspaper, speaking during Parliament’s General Assembly, the Minister of Investment, Trade and Industry, Honourable Advocate Sadique Kebonang, opined that since increasing the tenure of Justices of Appeal from 70 to 80 will result in a constitutional amendment, a referendum is required before such amendment is made. I agree.

Section 3 of the Referendum Act (Cap. 02:10) provides that  “where under any law, any matter is required to be submitted to a vote of the electors qualified to vote in the election of the Elected Members of the National Assembly for approval by a majority of them, it shall be submitted in accordance with the provisions of this Act.” It is my view that the issue of the tenure of office for Judges of the High Court and Justices of Appeal is one such issue.

When, in 2001, section 101(1) of the Constitution, which provided that “… a person holding the office of a judge of the Court of Appeal shall vacate that office on attaining the age of 65 or such age as may be prescribed by Parliament”, was amended to raise the age to 70, a referendum was held.     

In determining the constitutionality or lack thereof of legislation it is a legal imperative that consideration not only be had for the black and white letter of the law, but also for the context, purpose and spirit of the legislation. This principle was recently confirmed by the United States of America (USA)’s Court of Appeals for the Ninth Circuit which, in finding that President Donald Trump’s Executive Order, which banned travel into the USA by people from certain predominantly Muslim countries, was unconstitutional, made reference to President Trump’s public averments that Muslims are bad people who hate America.

The express context of the CoA Act’s Amendment Bill is that government intends to give effect to Justice Tafa’s judgment. But, what is the hidden context? Is it to ensure that certain Justices of Appeal who are sympathetic to the Executive remain in office for as long as possible as some opine?    

I once more lean on the view of Honourable Advocate Kebonang. Still at Parliament’s General Assembly Mmegi quoted him as having said “If you have a special dispensation for 73 years, why move to 80 years? There is no rationale for 80 years.” Once again, I agree.
This dispensation is provided for in section 101(1) (ii) of the Constitution which provides that “a person may be appointed as President of the Court of Appeal or as a Justice of Appeal for a fixed period of three years notwithstanding that he has attained the age referred to in this subsection or that he will before the expiry of his appointment have attained that age.”

When a person like Honourable Biggie Butale, an Attorney who understands the importance of the rule of law and constitutionalism can go to the extent of suggesting that there should be no retirement age for judges you begin to wonder whether the true object of the CoA Act Amendment Bill is really what is told to Batswana.

This brings me to the other aspect which should be considered in determining a legislation’s constitutionality or lack thereof. It is whether or not the legislation would, even for public policy considerations, result in public discomfort. The Leader of Opposition in Parliament, Honourable Advocate Duma Boko, was right in asserting that a Judge who is 80 years is near or post senility. Such a person is prone to such defects as confusion, disorientation, forgetfulness, absentmindedness, e.t.c. How can the public trust such a person with proper dispensation of justice?

Even raising the tenure of Justices of Appeal from 65 to 70 was a legal mischief considering that the normal retirement for all other professions and vocations is 65. This is the age beyond which scientists have determined it is not advisable, even for health reasons, to continue in active employment.  

Still on public policy considerations, how do we convince the public that people who have reached the age of 80 continue working when, as Honourable Bagalatia Arone states, there are so many graduates roaming the streets? Should n’t those aged 80 retire and create employment and/or promotion opportunities for those who qualify?

Besides the issue of constitutionalism, the other question to be asked is whether the proposed amendment to raise the tenure for Justices of Appeal to 80 years is a legal necessity. In my view, it is not. Government can amend the Act to give effect to Justice Tafa’s judgment without increasing the tenure to 80 years.

In my view, the proposed amendment to prescribe the number of Justices of Appeal to be twelve is sufficient. It confirms Justice Tafa’s finding that “… it is required of Parliament by the Constitution(section 99(2)(b)) to prescribe the number, if any, of Justices of the Court of Appeal in addition to those already prescribed by the Constitution itself…”

These are, as per section 99(2) of the Constitution, the President of the Court of Appeal, the Chief Justice and other Judges of the High Court. This brings me to my final point which is that an impression has been created that Justice Tafa’s judgment has resulted in a constitutional crisis since the Court of Appeal is unable to seat.

That is not so. The Court of Appeal can seat because the President of the Court of Appeal, whose appointment has not been invalidated, can empanel it through himself, the Chief Justice and other Judges of the High Court. Also, in demonstrating his respect for the doctrine of separation of powers and to avoid chaos, Justice Tafa, by suspending, for a period of six months, the operation of the order declaring section 4 of the Court of Appeal Act as invalid and struck down, wanted to allow the relevant authorities to take the necessary steps to ensure that the appointments of the concerned Justices of Appeal are regularized.

In the result, it is my view that the proposed amendment to raise the tenure of Justices of Appeal to 80 in the manner that the Executive wants to follow is unconstitutional and may result in the amendment being struck down should it be challenged in court if passed by Parliament and assented to by the President.

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The Daring Dozen at Bari

8th December 2020

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”


Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”


Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.


Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)


Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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