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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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Export Processing Zones: How to Get SEZA to Sizzle

23rd September 2020
Export Processing Zone (EPZ) factory in Kenya

In 2005, the Business & Economic Advisory Council (BEAC) pitched the idea of the establishment of Special Economic Zones (SEZs) to the Mogae Administration.

It took five years before the SEZ policy was formulated, another five years before the relevant law was enacted, and a full three years before the Special Economic Zones Authority (SEZA) became operational.

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Egypt Bagged Again

23rd September 2020

… courtesy of infiltration stratagem by Jehovah-Enlil’s clan

With the passing of Joshua’s generation, General Atiku, the promised peace and prosperity of a land flowing with milk and honey disappeared, giving way to chaos and confusion.

Maybe Joshua himself was to blame for this shambolic state of affairs. He had failed to mentor a successor in the manner Moses had mentored him. He had left the nation without a central government or a human head of state but as a confederacy of twelve independent tribes without any unifying force except their Anunnaki gods.

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23rd September 2020

If I say the word ‘robot’ to you,  I can guess what would immediately spring to mind –  a cute little Android or animal-like creature with human or pet animal characteristics and a ‘heart’, that is to say to say a battery, of gold, the sort we’ve all seen in various movies and  tv shows.  Think R2D2 or 3CPO in Star Wars, Wall-E in the movie of the same name,  Sonny in I Robot, loveable rogue Bender in Futurama,  Johnny 5 in Short Circuit…

Of course there are the evil ones too, the sort that want to rise up and eliminate us  inferior humans – Roy Batty in Blade Runner, Schwarzenegger’s T-800 in The Terminator,  Box in Logan’s Run,  Police robots in Elysium and  Otomo in Robocop.

And that’s to name but a few.  As a general rule of thumb, the closer the robot is to human form, the more dangerous it is and of course the ultimate threat in any Sci-Fi movie is that the robots will turn the tables and become the masters, not the mechanical slaves.  And whilst we are in reality a long way from robotic domination, there are an increasing number of examples of  robotics in the workplace.

ROBOT BLOODHOUNDS Sometimes by the time that one of us smells something the damage has already begun – the smell of burning rubber or even worse, the smell of deadly gas. Thank goodness for a robot capable of quickly detecting and analyzing a smell from our very own footprint.

A*Library Bot The A*Star (Singapore) developed library bot which when books are equipped with RFID location chips, can scan shelves quickly seeking out-of-place titles.  It manoeuvres with ease around corners, enhances the sorting and searching of books, and can self-navigate the library facility during non-open hours.

DRUG-COMPOUNDING ROBOT Automated medicine distribution system, connected to the hospital prescription system. It’s goal? To manipulate a large variety of objects (i.e.: drug vials, syringes, and IV bags) normally used in the manual process of drugs compounding to facilitate stronger standardisation, create higher levels of patient safety, and lower the risk of hospital staff exposed to toxic substances.

AUTOMOTIVE INDUSTRY ROBOTS Applications include screw-driving, assembling, painting, trimming/cutting, pouring hazardous substances, labelling, welding, handling, quality control applications as well as tasks that require extreme precision,

AGRICULTURAL ROBOTS Ecrobotix, a Swiss technology firm has a solar-controlled ‘bot that not only can identify weeds but thereafter can treat them. Naio Technologies based in southwestern France has developed a robot with the ability to weed, hoe, and assist during harvesting. Energid Technologies has developed a citrus picking system that retrieves one piece of fruit every 2-3 seconds and Spain-based Agrobot has taken the treachery out of strawberry picking. Meanwhile, Blue River Technology has developed the LettuceBot2 that attaches itself to a tractor to thin out lettuce fields as well as prevent herbicide-resistant weeds. And that’s only scratching the finely-tilled soil.

INDUSTRIAL FLOOR SCRUBBERS The Global Automatic Floor Scrubber Machine boasts a 1.6HP motor that offers 113″ water lift, 180 RPM and a coverage rate of 17,000 sq. ft. per hour

These examples all come from the aptly-named site    because while these functions are labour-saving and ripe for automation, the increasing use of artificial intelligence in the workplace will undoubtedly lead to increasing reliance on machines and a resulting swathe of human redundancies in a broad spectrum of industries and services.

This process has been greatly boosted by the global pandemic due to a combination of a workforce on furlough, whether by decree or by choice, and the obvious advantages of using virus-free machines – I don’t think computer viruses count!  For example, it was suggested recently that their use might have a beneficial effect in care homes for the elderly, solving short staffing issues and cheering up the old folks with the novelty of having their tea, coffee and medicines delivered by glorified model cars.  It’s a theory, at any rate.

Already, customers at the South-Korean  fast-food chain No Brand Burger can avoid any interaction with a human server during the pandemic.  The chain is using robots to take orders, prepare food and bring meals out to diners.  Customers order and pay via touchscreen, then their request is sent to the kitchen where a cooking machine heats up the buns and patties. When it’s ready, a robot ‘waiter’ brings out their takeout bag.   

‘This is the first time I’ve actually seen such robots, so they are really amazing and fun,’ Shin Hyun Soo, an office worker at No Brand in Seoul for the first time, told the AP. 

Human workers add toppings to the burgers and wrap them up in takeout bags before passing them over to yellow-and-black serving robots, which have been compared to Minions. 

Also in Korea, the Italian restaurant chain Mad for Garlic is using serving robots even for sit-down customers. Using 3D space mapping and other technology, the electronic ‘waiter,’ known as Aglio Kim, navigates between tables with up to five orders.  Mad for Garlic manager Lee Young-ho said kids especially like the robots, which can carry up to 66lbs in their trays.

These catering robots look nothing like their human counterparts – in fact they are nothing more than glorified food trolleys so using our thumb rule from the movies, mankind is safe from imminent takeover but clearly  Korean hospitality sector workers’ jobs are not.

And right there is the dichotomy – replacement by stealth.  Remote-controlled robotic waiters and waitresses don’t need to be paid, they don’t go on strike and they don’t spread disease so it’s a sure bet their army is already on the march.

But there may be more redundancies on the way as well.  Have you noticed how AI designers have an inability to use words of more than one syllable?  So ‘robot’ has become ‘bot’ and ‘android’ simply ‘droid?  Well, guys, if you continue to build machines ultimately smarter than yourselves you ‘rons  may find yourself surplus to requirements too – that’s ‘moron’ to us polysyllabic humans”!

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