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Appointment of Judges: what prevails in the world?

Ndulamo Anthony Morima


In last week’s article, we considered the constitutionality or lack thereof of the Court of Appeal Act Amendment Bill (“the Bill”) whose object is, inter alia, prescribing the number of Court of Appeal (CoA) Justices to be twelve and increasing their retirement age from 70 to 80.

Since there seems to be no opposition to the prescription of the number of Justices of Appeal as twelve we did not and we will not deal with it here. Rather, we dealt with and we will deal with the controversial proposal to increase their retirement age from 70 to 80. With the benefit of hindsight I realize that I failed  my readers to the extend I, in condemning the proposal to increase the retirement age from 70 to 80, failed to give a comparative exposition of the retirement ages for Judges and Justices of Appeal in the world. This, I do in this article.

Of course, I cannot give examples of all countries of the world, but I will attempt to give a representative sample by ensuring that I give examples from all the continents and from different legal systems. In giving this sample I use information obtained from accessed on 30th March 2017 to which I am indebted.

Considering that there has been concern about the judges in Botswana being appointed by the President with the advice of the Judicial Service Commission, I also give the method of appointment for both Judges and Justices of Appeal in various countries. In England and Wales, the Judicial Pensions and Retirement Act 1993 dictates that, along with other senior judges throughout the United Kingdom, Justices of Appeal retire at 70 years of age. It is only Judges appointed before 31st March 1995 who are an exception since they may retire at 75.

For our neighbor, South Africa, in terms section 176(1) of the Constitution, Judges of the Constitutional Court serve for a non-renewable term of 12 years or until they reach the age of 70, whichever is earlier. These limits may, however, be extended by an Act of Parliament.
Still in South Africa, section 4 of the Judges Remuneration and Conditions of Employment Act 47 of 2001 has extended the term limit to an effective term of 15 years including prior service at other courts.

The effect of this is that judges who had served more than 3 years before their appointment to the Constitutional Court retain a 12-year term limit. The same section extends the retirement age to 75. However, in terms of section 3(2)(b), if a judge has already been a judge in any court for 15 years by the time he or she reaches the age of 65, he or she may voluntarily retire.

The other jurisdiction of consideration is the Eastern Caribbean Supreme Court (ECSC), a superior court of record for the Organisation of Eastern Caribbean States (OECS), including six independent states of Antigua and Barbuda, the  Commonwealth of Dominica,  Grenada, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and three British Overseas Territories, namely Anguilla, British Virgin Islands, and Montserrat.

There, Judges have life tenure but Justices of Appeal must retire when they are 65 and High Court Judges must retire when they are 62. However, extensions of up to three years may be granted by the Judicial and Legal Services Commission only if all of the states agree to such an extension.

In Argentina judges are nominated by the President and approved by the Senate and can serve until mandatory retirement at the age of 75. In Lesotho, the President of the Court of Appeal and the Chief Justice of the High Court are appointed by the King on the advice of the Prime Minister. Puisne judges are appointed by the King on the advice of the Judicial Service Commission, an independent body of judicial officers and officials designated by the King. Judges of both courts can serve until the age of 75.

While in Argentina judges are nominated by the President and approved by the Senate and can serve until mandatory retirement at the age of 75, in Brazil justices are appointed by the President and approved by the Federal Senate and can serve until mandatory retirement at the age of 75. In Australia, justices are appointed by the Governor-General in Council for life with a mandatory retirement at the age of 70. In Ghana, the Chief Justice is appointed by the President in consultation with the Council of State (a small advisory body of prominent citizens) and with the approval of Parliament.

Other justices are appointed by the President upon the advice of the Judicial Council (an 18-member independent body of judicial, military and police officials, and presidential nominees) and on the advice of the Council of State. Justices can retire at the age of 60, with compulsory retirement at age 70.

In Kenya, the Chief and Deputy Chief Justices are nominated by the Judicial Service Commission (JSC) and appointed by the President with approval of the National Assembly. Other judges are nominated by the JSC and appointed by the President. The Chief Justice serves a nonrenewable 10-year term or until the age of 70 whichever comes first. Other judges serve until the age of 70.

In Namibia, judges are appointed by the President upon the recommendation of the Judicial Service Commission. Judges serve until the age of 65 but the term can be extended by the President until the age of 70. In Malawi, the Supreme Court Chief Justice is appointed by the President and confirmed by the National Assembly. Other judges are appointed by the President upon the recommendation of the Judicial Service Commission, which regulates judicial officers. Judges serve until the age of 65.

In Zimbabwe, Supreme Court judges are appointed by the President upon recommendation of the Judicial Service Commission, an independent body consisting of the Chief Justice, Public Service Commission chairman, Attorney General, and 2 to 3 members appointed by the President. Judges normally serve until the age of 65 but can elect to serve until the age of 70. Constitutional Court judges serve a non-renewable 15-year term.

In Egypt, in terms of the 2014 Constitution, all judges and justices are selected by the Supreme Judiciary Council and appointed by the President of the Republic. Judges are appointed for life. In the European Union, judges are appointed with the common consent of the member states to serve on 6-year renewable terms. In India, Justices are appointed by the President to serve until the age of 65.

In the United States of America (USA) the President nominates and, with the advice and consent of the Senate, appoints Supreme Court justices. The justices are appointed for life. In Mexico, Supreme Court justices are nominated by the President of the Republic and approved by a two-thirds vote of the members present in the Senate.

They serve for life. The Electoral Tribunal and superior and regional court judges are nominated by the Supreme Court and elected by two-thirds vote of members present in the Senate. Superior court presidents are elected from among its members to hold office for a 4-year term. Other judges of the superior and regional courts serve staggered 9-year terms. In summary, while seven of the reviewed countries have their retirement ages as 70, five have theirs as 75. Three have their as 65 and below. None has 80 as its retirement age. Two have a life tenure for their justices.

It is, therefore, clear that the age of 70, which currently prevails in Botswana, is the one preferred by most countries. Considering that 75 also has a significant number of countries using it, one may also argue that, if anything, government could be proposing 75, not 80. In any event, under the current law, at 70, a judge’s tenure can be extended by a maximum of three years, leaving him or her with only two years to reach 75.

Also, while in five of the reviewed countries, the President nominates justices and appoints them after approval of the National Assembly or the Senate, in four of the countries, just like in Botswana, the President makes the appointment upon recommendation of the Judicial Service Commission or its equivalent.

Considering that the variance is only one country in favour of presidential nomination and appointment after approval by the National Assembly or the Senate, one may not authoritatively conclude that Botswana’s method of appointing judges is wrong though, of course, law is not based on statistics.

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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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