Connect with us
Advertisement

Appointment of Judges: what prevails in the world?

Ndulamo Anthony Morima

EAGLE WATCH


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 www.cia.gov 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.

Continue Reading

Columns

The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

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.

Continue Reading

Columns

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.

POSITIVITY
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”

UNDERSTANDING

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.”

COMMITMENT

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.

ACCEPTANCE

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)

COMPASSION, MUTUAL LOVE AND RESPECT

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.

Continue Reading

Columns

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.

This content is locked

Login To Unlock The Content!

Continue Reading
Do NOT follow this link or you will be banned from the site!