Documents passed to the Sunday Standard have revealed how President Khama’s meddling in judicial appointments may be adversely affecting standards at the High Court bench. It has emerged that in a bid to avoid a judicial crisis and look for a replacement to the preferred candidate who had been rejected by the president, the Judicial Services Commission found itself with no candidate but the one who had scored the lowest points during interviews of shortlisted applicants.
The JSC, which was desperately racing against time to avoid a possible judiciary crisis following the resignation of then Gaborone High Court David Newman failed to convince other candidates to take up the position of Acting Judge after Khama refused to appoint experienced lawyer Omphemetse Motumise as a judge.
According to the excerpts from minutes of a meeting of the JSC held on 6th February Chief Justice and Chairman of the Commission Maruping Dibotelo indicated that with the view to minimise any possible disruption on the business of the High Court, upon the departure of Newman, a decision was taken to fill a vacancy that would arise at the end of February 2015. “With the view to maintain the total establishment of judges of the High Court and for purposes minimising any disruption to service delivery upon the departure of Judge Newman, the Chief Justice as head of judiciary took a decision to open the soon to be vacant position for advertising,” the minutes read in part. According to the documents, twenty two applicants responded to the advert.
In appreciation of the urgency surrounding the need to appoint a replacement judge, members agreed to conduct a shortlisting. The four listed applicants are former Director Legal Services, Botswana Communication Regulatory Authority (BOCRA) Dr Zein Kebonang, former acting judge of the High Court Julia Sarkodie Mensah, Justice Tapiwa Marumo of the industrial Court and Omphemetse Motumise of Moeletsi and Motumise Attorneys. The documents reveal that this was Dr Zein’s third application having applied in 2010 and 2012 but was never recommended by the JSC. Sarkodie Mensah who “meets the minimum relevant work requirement” previously served as acting judge of the High Court from 1st August and resigned from the post on 31st October 2006 but it is not clear how many times she had applied for the position.
The minutes also show that it was Justice Marumo’s fourth application; she applied in 2008, 2009 and 2010. She was previously interviewed on 2009. The minutes of the meeting show that Marumo was previously recommended for appointment by the JSC for the position but the appointing authority (President) did not approve it. The minutes of the meeting also state that Motumise who applied for the first time (to fill vacant post left by Newman) did not get the approval of President Khama. Members of the JSC on 13th February interviewed the four candidates and Motumise obtained the highest scored the highest points from each of the members of the Commission. He was followed by Justice Marumo, Sarkodie Mensah in third place and lastly Dr Kebonang in the fourth place.
“The judicial Service Commission expressed its satisfaction with the outstanding professional history, experience and disposition of Mr Motumise and unanimously agreed to recommend for the approval of His Excellency the President that he be appointed judge of the High Court,” state the minutes.
This recommendation, the minutes of the meeting state, was done after considering Motumise’s performance during the interview and other factors such as his impeccable and outstanding record as a legal professional, experience, commitment, above board aptitude attested by his performance over the years.
In a letter dated 24 February 2015, JSC Secretary and Master of the Registrar of the High Court wrote a letter to Permanent Secretary to Office of the President Carter Morupisi informing him that the JSC recommends for the approval of His Excellency The President that Mr Omphimetse Motumise be appointed a judge.” However in a letter dated 3rd March 2015, Acting Permanent Secretary to the President Botshelo Mathuba “His Excellency The President has rejected your recommendation to appoint Mr Omphemetse Marumo as judge of the High Court of Botswana.”
According to minutes of the JSC meeting held on 20 March 2015, Dibotelo informed the meeting that following President Khama’s decision not to appoint Motumise he had since taken over the management of most of the matters which were incomplete and pending before Judge Newman as at his last date in Office. Consequently, Dibotelo said, this increased head of the judiciary. Dibotelo also informed the meeting that further delays in the appointment of a replacement judge was likely to lead to the backlog of cases and increased workloads for the remaining judges of the High Court.
Members of the JSC agreed that it was desirable for them to be proactive in managing the situation to lessen the impact of business disruption whilst awaiting the appointment of a permanent judge. The Commission resolved to approach Dr Kebonang, Sarkodie Mensah and Marumo in their order of performance with a view to establish their availability to serve for 12 months as acting judge of the High Court. Both Justice Marumo and Sarkodie Mensah declined the offer when approached by Attorney General Athalia Molokomme.
The JSC resolve to contact Dr Kebonang who accepted the position of acting High Court judge. The Commission recommended to President Khama the appointment of Dr Kebonang as Acting High Court judge pending the resolution of the case by Law Society of Botswana challenging President Khama’s decision not to appoint Motumise. South African senior advocate Wim Trengove and Tshiamo Rantao are expected to lead the LSB team which is challenging would lead the LSB team.
Law Society is of the view that whether acting or full time, any appointment would be in contravention of Section 96 (2) of the Constitution which makes it mandatory for the President to appoint a judge in accordance with the advice of the JSC. Motumise is a former chairperson of the LSB and a former Independent Electoral Commission (IEC) deputy chairperson and former SADC Lawyers Association Treasure.