Attorney Tshiamo Rantao this week served all industrial court judges with a notice of intension to sue for their removal from the bench.
Rantao, who is acting for the Botswana Federation of Public Sector Unions, is challenging the appointment of Judge President Tebogo Maruping, saying it is in violation of Section 104 of the Constitution, as President Khama did not act “in accordance with the advice of the Judicial Service Commission”.
BOFEPUSU goes on to question the appointment of the entire Industrial Court bench, saying it was done without consulting the JSC.
Justice Maruping’s appointment follows a successful application for the ouster of Industrial Court Judge President Elijah Legwaila.
BOFEPUSU attorney, Tshiamo Rantao, on Friday served the Attorney General, the Chief Justice and the Industrial Court Judges, as well as the Botswana Confederation of Commerce Industry and Manpower (BOCCIM), with notice of intention to sue against the appointment of Industrial Court judges.
The lawsuit comes in the wake of a resounding legal victory for BOFEPUSU, after they forced government to remove former Industrial Court Judge President Elijah Legwaila and appoint Justice Maruping in his stead.
In their application for Justice Legwaila’s ouster, BOFEPUSU argued that he was wrongfully appointed as he had reached the retirement age of 70 years. They queried Justice Legwaila’s appointment on a fixed-term contract, saying his contract should have at least been extended to allow him to wrap up any unfinished business.
“The appointment is in breach of the Trade Disputes Act. There is no provision in the TDA which empowers the President to appoint a judge who has attained the age of 70 on a fixed-term contract,” they said.
Caught on the back foot, President Khama removed Justice Legwaila and appointed Justice Maruping as Judge President.
In the latest development, BOFEPUSU has turned its guns on Justice Maruping and the entire industrial court bench saying the president did not consult the Judicial Services Commission before appointing them.
“This taints all the appointments of the judges of the Industrial Court because they are unconstitutional,” they said.
They accused government of violating Section 10(9) of the Constitution, which dictates that any court or adjudicating authority should be independent and impartial. BOFEPUSU argues that, as regular clients of the court, they have a fundamental right to be assured of the independence and impartiality of the judiciary. In any event, said BOFEPUSU, there is international consensus that the power of appointment of judges should not be vested exclusively in the executive.
“It is, therefore, clear and threadbare that any piece of legislation which purports to allow the Executive, in this case President Khama, to unilaterally appoint the Judge President and judges of the Industrial Court, is unconstitutional,” they said.
While they conceded that President Khama is empowered by Section 16 (Chapter 48:02) of the TDA to appoint judges, BOFEPUSU argued that such powers do not exclude the requirement that such designation and appointments should be done in accordance with the advice of the JSC.
“If we are wrong on this, the provisions of Section 16 of the TDA are in contravention of the fundamental constitutional requirement of the independence and impartiality of the judiciary. In such an event, the same law ought to be struck down on that basis alone,” said BOFEPUSU.
The unions will approach the High Court seeking for the appointment of Justice Maruping and all other Industrial Court Judges to be set aside. As an alternative, BOFEPUSU will ask the court to strike down the entire TDA Chapter (48:02), on the basis that it contravenes Section 104(1) of the Constitution. At least, said BOFEPUSU, the High Court should declare that this section is unconstitutional.
“We also seek a declaration that the JSC has abdicated its responsibility to advise the President prior to the designation and appointments of the Judge President and the judges of the Industrial Court,” said BOFEPUSU.
They also want government to bear the costs of the suit.
