President Ian Khama will this coming week find his back against the wall as the Government Manual Workers Union turns up its antennae in the long running dispute over the appointment of judges.
At contention this time around is the decision by the Judicial services Commission to appoint a new batch of expatriate Court of Appeal Judges.
This follows a High Court judgement that effectively ruled as unlawful the then serving batch.
As appointing authority, President Khama is the appellant against Manual Workers Union following a case in which Justice Abednego Tafa struck down Section 4 of the Court of Appeal (CoA) which gives the State President the power to prescribe the number of judges of the Court of Appeal.
Tafa declared that only Parliament is constitutionally empowered to do so.
Khama’s appeal is expected to be heard on the 29-30 May by retired Chief justice of Zambia, Justice Ernest Sakala, Deputy Chief Justice of Namibia Justice Petrus Damaseb and retired deputy president of the Supreme Court of appeal of South Africa Justice Louis Harms. Other two local judges who are yet to be identified will join the trio to make up a five judge bench.
Manual Workers Union’s lawyers Collins Chilisa Consultants have raised concern and have already written a letter to the Registrar of the High Court Michael Motlhabi questioning the criteria which used to appoint and recommend the three foreign judges to the President.
“We note the failure by Judicial Service Commission (JSC) to disclose who selected the panel and the basis on which it is contended that person is empowered to make the selection. Kindly furnish this information as a matter of very considerable urgency, ” said Collins Chilisa Consultants.
They state that at a meeting of the JSC held on 11 and 12 May 2017, Court of Appeal (CoA) President, Ian Kirby and Chief Justice Maruping Dibotelo requested the JSC to recommend to Khama the three foreign judges on acting basis for the pending appeal.
“If the information on the appointment of the CoA acting judges and the letter of 16 May 2017 is anything to go by, it would appear that the President of the CoA determine which judge should be appointed to the appeal panel. Kindly advise whether this is correct and if so on what basis (if any) it is contended that this is lawful and valid given his interest in the appeal as a member of the appellant in this matter,” reads the letter in part.
The lawyers also demand to be furnished with the names of the two High Court Judges who will form part of the panel of judges hearing the appeal.
“We assume that the two High Court judges have not yet been selected. In our respectful view, if the judge president who has an interest on the outcome of the appeal as a member of the JSC is going to be selecting the two judges, fairness at the very least requires that our clients be consulted in respect of the High Court Judges that the judge president intend to select.”
Collins Chilisa Consultants questioned why their client was not consulted or afforded an opportunity to makes its own submissions of acting CoA judges before the JSC.
Meanwhile, in an effort beef up its legal team, the Attorney General is said to have roped in Advocate Wim Trengove, who is regarded as a leading legal mind in South Africa.
Recently Trengove was instructed by Tshiamo Rantao Kewagamang Attorneys and Law Society of Botswana in a constitutional case in which he successfully represented veteran lawyer Omphimetse Motumise in a case in which he was suing President Ian Khama for refusing to appoint him a judge.
In his judgement delivered on 16th February 2017, Justice Tafa ruled that the President had no powers to prescribe the number of the court of appeal judges since those powers rested with parliament. This decision invalidated the appointment of all Court of Appeal judges.
The Union had argued that no judge should be reappointed after a fixed term.
While the state had appealed the judgment, Minister Kgathi swiftly used Botswana Democratic Party majority numbers in parliament to make some amendment to the Act.
The proposed amendment reads:” The appointment of Justices of Appeal by the President before the coming into of this Act shall be deemed to have been validly made notwithstanding that at the time of the appointment the number of Justices of Appeal had not been prescribed by Parliament.
The proposed amendment also seeks to ensure that no proceedings of the Court of Appeal are invalidated by the unconstitutional appointment of the Court of Appeal judges.
The Bill further proposes that the tenure of Office of a judge of the court of Appeal be increased from 70 years to 80 years.