The assumption they unwitting make is that the reason why expatriates have been a permanent fixture on the Court of Appeal since independence is that it is a legal requirement. It is not and a citizen High Court judge has invoked three pieces of legislation to argue why this practice should be stopped.
In making his case, Justice Tshepo Motswagole quotes Section 99 of the Constitution, Section 4 of the Court of Appeal Act and Section 21 of the Public Service Act.
Section 99 of the Constitution says that CoA judges shall be its president and “such number, if any, of Justices of Appeal as may be prescribed by Parliament” as well as the Chief Justice and the other judges of the High Court. Section 4 of the Court of Appeal Act says that in addition to the judges provided for in the Constitution, the CoA shall consist of “such number of Justices of Appeal not exceeding 12.” Section 21 of the Public Service Act says that “a non-citizen shall not be appointed to any public office unless the appointing authority is satisfied that no citizen of Botswana who is qualified and suitable for appointment is available.”
Operations of the Administration of Justice (AoJ) are overseen by the Judicial Services Commission (JSC). To draw a parallel with the corporate world, the JSC is a board of directors which, in one respect, is responsible for framing policies. In terms of one such policy, half of the positions in the CoA are reserved for foreigners. This policy comes under the spotlight in a “Notice of Intention to Sue” served upon the state by Monthe Marumo & Co., who are representing Motswagole.
“This policy is an act of usurpation by the Judicial Services Commission of the power reserved for other constitutional functionaries and violates Botswana’s sovereignty and independence. It has no vetting mechanism nor supervision,” reads the “Notice of Intention to Sue”, adding that the “tainted” manner in which these foreign judges are appointed also offends Public Service Regulations which are developed in consonance with the Public Service Act. “Needless to state, such determination cannot lawfully be made without a transparent and objective process being set up and followed.”
Whether the JSC itself has legal authority to develop and implement a policy of this nature is also an issue. Monthe Marumo & Co. contend that the Commission’s mandate doesn’t confer power to either disaggregate appellate court judges into categories or reserve certain positions for a select group of people.
“The statutory duty imposed is merely to fill vacancies by appointing qualified and proper persons who meet the stated eligibility criteria,” the lawyers argue.
At this stage, the contours of what holds bountiful promise of blooming into a marathon case are only faintly outlined. In apparent effort to explain this controversial policy, the “Notice of Intention to Sue” says that the “preferential policy” in question has been implemented “under the false pretext that Botswana is a small country where everyone is known to everybody.” There is no elaboration but it would seem that the AoJ’s reasoning, as explained here, is that unlike foreign judges, domestic ones are too close to litigants and facts of the case to be perceived as truly impartial. Interestingly, if that interpretation is accurate, the same reasoning would apply to High Court judges.
The appointment of foreign judges to the appellate court goes back to the days of Sir Seretse Khama, the founding president who died in 1980 after ruling for 14 years. In 1972, parliament promulgated the Court of Appeal Act which stated that “in addition to the Court of Appeal provided for under the Constitution, there shall be not more than four justices of Appeal as the President of Botswana may at his discretion determine and appoint.” Subsequent amendments increased the figure to 12.
At independence, the entire bench was wholly foreign but would be localised over the years, beginning with the High Court. That started in 1992 when President Sir Ketumile Masire appointed Moleleki Mokama Chief Justice. His successor, Julian Nganunu, also a Motswana, joined the bench in 1998. While the High Court has been fully localised, the CoA – like that of many more British Commonwealth countries, has a hybrid composition.
On account of a colonial past that seems hard to shake off, the appellate courts of these countries are staffed by members of the Judicial Committee of the Privy Council. The latter is the court of final appeal for the UK overseas territories and Crown dependencies. It also serves those Commonwealth countries that have retained the appeal to His Majesty in Council or, in the case of republics, to the Judicial Committee. Several countries in Africa, the Caribbean, Indian Ocean, and Pacific still allow appeals to the Privy Council.
There doesn’t seem to be adequate scholarship on hybrid courts staffed by a mix of local and foreign judges but Rosalind Dixon at the University of New South Wales Sydney in Australia and Vicki Jackson at Harvard University have studied this judicial phenomenon. In an academic paper they co-authored (“Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts”), they identify both advantages and disadvantages.
The advantages are that the cross-pollination of knowledge and experience creates opportunities “for both broad and deep forms of comparative constitutional engagement”; greater potential for greater relative independence and impartiality on the part of individual judges and, by extension, of the bench as a whole; and “creation of potential channels for increased outsider attention by foreign governments, public international organizations, and nongovernmental organizations, both to certain kinds of unconstitutional practices by national governments and to positive developments in the rule of law.”
The disadvantages are possible lack of sufficient local contextual knowledge to appropriately perform the constitutional function; perception that these courts are not independent and impartial but have a distinctly foreign and partial perspective on national constitutional controversies which could reflect “unwelcome influence of former colonial or hegemonic powers”; and, reliance on foreigners to sit on domestic courts may delay the development of domestic lawyers’ capacity or willingness to sit as judges on their own country’s courts.
Interestingly, the argument that Motswagole’s lawyers make about the inclusion of foreign judges violating Botswana’s sovereignty and independence would find endorsement halfway across the world. In the United States, Congress has threatened to impeach any judge who does so much as quote foreign law. Naturally, those representatives can’t even fathom the thought of foreign judges being appointed to their courts.
