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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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Technology saves Lions from angry Okavango villagers

22nd November 2022

Villagers in the eastern Okavango region are now using an alert system which warns them when collared lions approach livestock areas. The new technology is now regarded as a panacea to the human/wildlife conflict in the area as it has reduced mass poisoning and killing of lions by farmers.

The technology is being implemented by an NGO, Community Living Among Wildlife Sustainably (CLAWS) within the five villages of Seronga, Gunutsoga, Eretsha, Beetsha and Gudigwa in the eastern part of the Okavango delta.

A Carnivore Ecologist from CLAWS, Dr Andrew Stein explained that around 2013, villagers in the eastern Okavango were having significant problems with losses of their cattle to predators specifically lions, so the villagers resorted to using poison and shooting the lions in order to reduce their numbers.

He highlighted that as a form of progressive intervention, they designed a programme to reduce the conflicts and promote coexistence. Another component of the programme is communal herding, introduced in 2018 to reduce the conflict by increasing efficiency whereby certified herders monitor livestock health and protect them from predators, allowing community members to engage in other livelihood activities knowing that their livestock are safe.

They are now two herds with 600 and 230 cattle respectively with plan to expand the programme to other neighbouring villages. Currently the programme is being piloted in Eretsha, one of the areas with most conflict incidences per year.

Dr Stein explained that they have developed the first of its kind alert system whereby when the lions get within three or five kilometers of a cattllepost or a homestead upon the five villages, then it will release an alert system going directly to the cellphones of individuals living within the affected area or community.

‘So, if a colored lion gets to about five kilometers of Eretsha village or any villagers in the Eretsha that has signed up for, the system will receive an SMS of the name of the lion and its distance to or from the village”, he stated. He added that this enables villagers to take preventative action to reduce conflicts before its starts.

Dr Stein noted that some respond by gathering their cattle and put them in a kraal or put them in an enclosure making sure that the enclosure is secure while some people will gather firewood and light small fires around edges of the kraal to prevent lions from coming closer and some when they receive the SMS they send their livestock to the neighbours alerting them about the presence of lions.

He noted that 125 people have signed to receive the alert system within Seronga, Eretsha, Beetsha, Gunutsoga and Gudigwa. He added that each homestead is about five people and this means more than 600 people immediately receive the messages about lions when they approach their villages. He also noted that last year they dispersed over 12 000 alerts, adding that this year is a bit higher as about 20 000 alerts have been sent so far across these villages.

Stein further noted that they have been significant changes in the behavior of the villagers as they are now tolerant to lions. “85 percent were happy with the SMS and people are becoming more tolerant with living with lions because they have more information to reduce the conflicts,” he stressed.

Stein noted that since the start of the programme in 2014 they have seen lion populations rebounds almost completely to a level before and they have not recorded cases of lion poisoning in the last three years which is commendable effort.

Monnaleso Sanga from Eretsha village applauded the programme by CLAWS noting that farmers in the area are benefiting through the alert system and take preventative measures to reduce human/lion conflict which has been persistent in the area. He added that numbers of cattle killed by lions have reduced immensely. He also admitted that they are now tolerant to lions and they no longer kill nor poison them.

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8th September 2022

A Muslim is supposed to be and should be a living example of the teachings of the Quran and the ‘Sunnah’ (the teachings and living examples of Prophet Muhammed (SAW – Peace be upon Him). We should follow these in all affairs, relations, and situations – starting with our relationship with our Lord, our own self, our family and the people around us. One of the distinguishing features of the (ideal) Muslim is his faith in Allah, and his conviction that whatever happens in the universe and whatever befalls him, only happens through the will and the decree of the Almighty Allah.

A Muslim should know and feel that he is in constant need of the help and support of Allah, no matter how much he may think he can do for himself. He has no choice in his life but to submit to the will of his Creator, worship Him, strive towards the Right Path and do good deeds. This will guide him to be righteous and upright in all his deeds, both in public and in private.

His attitude towards his body, mind and soul

The Muslim pays attention to his body’s physical, intellectual and spiritual needs. He takes good care of his body, promoting its good health and strength. He shouldn’t eat in excess; but he should eat enough to maintain his health and energy. Allah, The Exalted, Says “…Eat and drink; but waste not by excess, for Allah loves not the wasters.” [Quran 7: 31]

The Muslim should keep away from alcohol and drugs. He should also try to exercise regularly to maintain his physical fitness. The Muslim also keeps his body and clothes clean, he bathes frequently. The Prophet placed a great emphasis on cleanliness and bathing. A Muslim is also concerned with his clothing and appearance but in accordance with the Islamic ideal of moderation, avoiding the extremes.

As for his intellectual care, the Muslim should take care of his mind by pursuing beneficial knowledge. It is his responsibility to seek knowledge whether it is religious or secular, so he may understand the nature and the essence of things. Allah Says: “…and say: My Lord! Increase me in knowledge.” [Quran 20: 114

The Muslim should not forget that man is not only composed of a body and a mind, but that he also possesses a soul and a spirit. Therefore, the Muslim pays as much attention to his spiritual development as to his physical and intellectual development, in a balanced manner which ideally does not concentrate on one aspect to the detriment of others.

His attitude towards people

The Muslim must treat his parents with kindness and respect, compassion, politeness and deep gratitude. He recognizes their status and knows his duties towards them. Allah Says “And serve Allah. Ascribe nothing as partner unto Him. (Show) kindness unto parents…” [Quran 4: 36]

With his wife, the Muslim should exemplify good and kind treatment, intelligent handling, deep understanding of the nature and psychology of women, and proper fulfilment of his responsibilities and duties.

With his children, the Muslim is a parent who should understand his responsibility towards their good upbringing, showing them love and compassion, influence their Islamic development and giving them proper education, so that they become active and constructive elements in society, and a source of goodness for their parents, community, and society as a whole.

With his relatives, the Muslim maintains the ties of kinship and knows his duties towards them. He understands the high status given to relatives in Islam, which makes him keep in touch with them, no matter what the circumstances.


With his neighbours, the Muslim illustrates good treatment, kindness and consideration of others’ feelings and sensitivities. He turns a blind eye to his neighbour’s faults while taking care not to commit any such errors himself. The Muslim relationship with his wider circle of friends is based on love for the sake of Allah. He is loyal and does not betray them; he is sincere and does not cheat them; he is gentle, tolerant and forgiving; he is generous and he supplicates for them.

In his social relationships with all people, the Muslim should be well-mannered, modest and not arrogant. He should not envy others, fulfils his promises and is cheerful. He is patient and avoids slandering and uttering obscenities. He should not unjustly accuse others nor should he interfere in that which does not concern him. He refrains from gossiping, spreading slander and stirring up trouble – avoids false speech and suspicion. When he is entrusted with a secret, he keeps it. He respects his elders. He mixes with the best of people. He strives to reconcile between the Muslims. He visits the sick and attends funerals. He returns favours and is grateful for them. He calls others to Islam with wisdom, example and beautiful preaching. He should guide people to do good and always make things easy and not difficult.

The Muslim should be fair in his judgments, not a hypocrite, a sycophant or a show-off. He should not boast about his deeds and achievements. He should be straightforward and never devious or twisted, no matter the circumstances. He should be generous and not remind others of his gifts or favours. Wherever possible he relieves the burden of the debtor. He should be proud and not think of begging.

These are the standards by which the (ideal) Muslim is expected to structure his life on. Now how do I measure up and fit into all this? Can I honestly say that I really try to live by these ideals and principles; if not can I really call myself a true Muslim?

For the ease of writing this article I have made use of for want of a better word, the generic term ‘he’, ‘his’, ‘him’ and the ‘male’ gender, but it goes without saying that these standards apply equally to every female and male Muslim.

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29th August 2022

“Homicide and suicide kill almost 7000 children every year; one in four of all children are born to unmarried mothers, many of whom are children themselves…..children’s potential lost to spirit crushing poverty….children’s hearts lost in divorce and custody battles….children’s lives lost to abuse and violence, our society lost to itself, as we fail our children.” “If you bungle raising your children, I don’t think whatever else you do matters very much.” (Quotation taken from a book written by Hillary Clinton).

These words may well apply to us here in Botswana; We are also experiencing a series of challenges in many spheres of development and endeavour but none as challenging as the long term effects of what is going to happen to our youth of today. One of the greatest challenges facing us as parents today is how to guide our youth to become the responsible adults that we wish them to be, tomorrow.

In Islam Prophet Muhammad (PBUH) has enjoined upon the parents to take care of the moral and religious instruction of their children from the very beginning, otherwise they will be called to account for negligence on the Day of Judgement. Parents must inculcate God-consciousness in their children from an early age, whereby the children will gain an understanding of duty to The Creator.


The Holy Qur’an says: ‘O you who believe! Save yourself and your families from the Fire of Hell’. (Ch. 66: V6). This verse places the responsibility on the shoulders of the parents to ensure that training and guidance begin at home. The goal is to mould the child into a solid Islamic personality, with good morals, strong Islamic principles, knowledge and behavior so as to be equipped to face the demands of life in a responsible and mature manner. This should begin with the proper environment at home that inculcates the best moral and behavioral standards.

But what do we have instead? Believers of all Religious persuasions will agree that we have children growing up without parental guidance, a stable home environment, without role models, being brought up in surroundings that are not conducive to proper upbringing and moulding of well-adjusted children. These children are being brought up devoid of any parental guidance and increasingly the desperate situation of orphaned children having to raise their siblings (children raising children) because their parents have succumbed to the scourge of AIDS.

It is becoming common that more and more girls still in their schooling years are now falling pregnant, most of them unwanted, with the attendant responsibilities and difficulties.

Observe the many young ladies who are with children barely in their teens having illegitimate children. In the recent past there was a campaign focused on the ‘girl-child’; this campaign targeted this group of young females who had fallen pregnant and were now mothers. The situation is that the mother still being just a ‘child’ and not even having tasted adulthood, now has the onerous responsibility of raising her own child most of the time on her own because either the father has simply disappeared, refuses to takes responsibility, or in some cases not even known.

We cannot place the entire blame on these young mothers; as parents and society as a whole stand accused because we have shirked our responsibilities and worse still we ourselves are poor role models. The virtual breakdown of the extended family system and of the family unit in many homes means that there are no longer those safe havens of peace and tranquility that we once knew. How then do we expect to raise well-adjusted children in this poisoned atmosphere?

Alcohol has become socially acceptable and is consumed by many of our youth and alarmingly they are now turning to drugs. Alcohol is becoming so acceptable that it is easily accessible even at home where some parents share drinks with their children or buying it for them. This is not confined only to low income families it is becoming prevalent amongst our youth across the board.


It is frightening to witness how our youth are being influenced by blatantly suggestive pop culture messages over television, music videos and other social media. Children who are not properly grounded in being able to make rational and informed decisions between what is right and what is wrong are easily swayed by this very powerful medium.


So what do we do as parents? We first have to lead by example; it is no longer the parental privilege to tell the child ‘do as I say not as I do’- that no longer works. The ball is in the court of every religious leader (not some of the charlatans who masquerade as religious leaders), true adherents and responsible parents. We cannot ignore the situation we have to take an active lead in guiding and moulding our youth for a better tomorrow.

In Islam Prophet Muhammad (pbuh) said: “No father gives a better gift to his children than good manners and good character.”  Children should be treated not as a burden, but a blessing and trust of Allah, and brought up with care and affection and taught proper responsibilities etiquettes and behaviour.

Even the Bible says; ‘Suffer the little children to come unto me and forbid them not, for of such is the kingdom of God. Verily I say unto you, whosoever shall not receive the kingdom of God as a little child, he shall not enter therein’. (Mark 10:14-15)

The message is clear and needs to be taken by all of us: Parents let us rise to the occasion – we owe it to our children and their future.

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