The current debate over who between the president and the Judicial Services Commission (JSC) should appoint puisne (regular) judges has involved a fair amount of second-guessing what the framers of the constitution actually intended. However, minutes of the Independence Conference that was held at Malborough House, London in February 1966 provide a crystal-clear answer to that question.
Initially, the draft constitution prescribed that the JSC but when this constitution was reviewed, M. G.de Winton, the legal advisor to the United Kingdom team, pointed out that “It was usual for the President to be formally responsible.” The result was that “The Conference agreed that puisne judges should be formally appointed by the President, acting on the advice of the Judicial Services Commission.” The final version that is now contained in Section 96 of the constitution says that while the president shall be solely responsible for the appointment of the Chief Justice, “the other judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.”
“In accordance with” seems to be causing a lot of headache.It has emerged that while the JSC had recommended Omphemetse Motumise in the last selection round, President Ian Khama thought otherwise.In its position paper on this matter, the Law Society of Botswana (LSB) says that “in accordance with” doesn’t give the president wiggle room for discretion, that he necessarily has to appoint the person recommended to him by the JSC.
“On a plain reading, the phrase “in accordance with” means that the President shall appoint judges in agreement with, consistent with and in conformity with the advice of the JSC. In other words, the President cannot act against, or in opposition to, the advice given to him or her by the JSC,” the LSB’s position paper says, adding in another part that, “There is a view that the JSC simply makes a recommendation that the President is not bound by and a contrary one which is that he is bound by such advice. The Society supports the latter.”
Conversely, a senior lawyer within the government system who requested anonymity in order that he can discuss this matter freely, takes the opposite view. He bases his analysis on “advice” and how its recipients typically relate to it. The point he makes is that in its nature, advice is not binding but instead gives the recipient leeway to either accept or reject what they are told to do. This condition would degrade the prescriptive value of “in accordance with.” As useful a concept in this regard is “discretion.” If the president has discretion, then he doesn’t have to bind himself by the advice given to him by the JSC.
“Suppose the JSC comes up with a name of a person who does not meet the qualifications. Is the president bound despite the obvious defects in the ‘advice’ and violation of the constitution? What if the president knows, for example, that the candidate has not been paying his taxes and the appointment will be embarrassing should the newspapers pick it up? Can’t he refuse or advise the JSC of these material facts?You can come up with all sorts of examples. It is no answer to say we do not expect or JSC cannot do that? If it happens, what then? If he has discretion in those sorts of circumstances, then it shows he does have discretion,” the lawyer says.
Another word that he parses is “shall” which, when used in statutes and contracts, has a peremptory meaning and is generally imperative or mandatory. The lawyer’s analysis is that “shall be appointed by the president” imposes a duty on the latter (not the JSC) to exercise the powers of appointing puisne judges.
“My view is that ‘shall’ only signifies appointments are by the president and no other person,” he says adding that the president cannot even delegate this function.
To some minds,however, the language of the framers wouldn’t appear to dovetail with that of Section 96 of the constitution. While the Independence Conference agreed that puisne judges should be formally appointed by the president, “acting on the advice of the Judicial Services Commission”, the constitution says that puisne judges “shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.”The introduction of “in accordance with” in the latter appears to be problematic and has provided basis for LSB’s main argument. The senior lawyer doesn’t think so: “The duty of the draughtsman is to translate everyday language into legalese – which he did. The wording says appoint in line with advice, not you are bound by advice.”
Naturally, the final say will be the High Court’s. Acting in concert with a group of high-powered private sector lawyers, the LSB has announced plans to challenge Khama’s decision to disregard the JSC’s advice with regard to the appointment of Motumise.
While there may be confusion about the appointment of judges, the Independence Conference’s recommendations on their removal are as clear as day. The framers recommended that the existing provision under which a judge may be removed from office only for inability to perform the functions of his office or misbehavior should continue. However, they further recommended that the procedure should be modified so that if the president considers that the question of removing a judge from office ought to be investigated, he should be required to appoint a tribunal, and if the latter advises the president that the judge ought to be removed, the president should be required to remove him. The outcome of this recommendation was Section 97(2) of the constitution which says that “a judge of the High Court may be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or for misbehavior.” The only time that this provision has been invoked was in 2012 following the conviction of former judge Dr. OnkemetseTshosa on assault and failure-to-submit-to-a-breathalyzer-test charges. While the tribunal was indeed appointed, it never got to decide Tshosa’s fate because he resigned on the very day it was supposed to convene.
The Conference also discussed the tenure of judges. In the pre-independence era, the legislature had the power to alter the age of retirement of judges. The Conference recommended that this power should be removed and that any such alteration should become a matter of constitutional amendment.
