The State could have avoided what Court of Appeal President Ian Kirby last Friday fell short of declaring a Constitutional crisis had it negotiated in ‘good faith.’
It has since emerged that the State negotiated an out of court settlement in a case in which Manual Workers Union had taken President Ian Khama and others to court seeking to have the appointment of seven Court of Appeal (CoA) judges declared unconstitutional, unlawful and invalid.
In a groundbreaking judgment delivered on Thursday, Lobatse High Court’s Justice Abednigo Tafa struck down Section 4 of the Court of Appeal which gives the President the power to prescribe the number of judges of the Court of Appeal, declaring that only Parliament is constitutionally empowered to do so.
Manual Workers Union lawyer Mboki Chilisa confirmed on Friday that the State had made a proposal that the union should withdraw the case to allow for the amendment of Section 4 of the Constitution. According to Mboki negotiations collapsed after the State failed to give the union a binding assurance that if the matter was withdrawn the Section in question would be amended.
“Our argument was that Section 4 should be amended first before we could withdraw the matter. But they insisted that they would do that at a later stage after we had withdrawn the matter hence we rejected their proposal on that basis,” said Chilisa.
Tafa also declared that the appointment of Justices of Appeal on more than one three year contract, as has been the practice for many years, was unconstitutional.
He also declared that the appointment of the Justices of appeal other than the Judge President was unconstitutional.
Tafa also directed that the operation of the order declaring Section 4 unconstitutional be suspended for six months to allow Government to amend the law so as to regularize the appointment of Justices who are not on a second contract.
On Friday Kirby announced that the Attorney General was “studying the judgment, and will advise if an appeal is to be lodged, and a stay of the operation of the orders sought, so that clarity can be obtained.”
“Until then it will not be proper for the affected Justices of Appeal to continue with their duties, nor will they be able to complete and deliver their reserved judgments in two outstanding constitutional cases,” said Kirby.
He added that “It will also not be practical for the present application session to proceed today. Accordingly, this session is postponed to a date to be announced in due course.”
But the union has not taken the announcement by Kirby lying down.
Chilisa revealed on Friday that the attitude of the union is that Kirby misdirected himself when he made the announcement that the State is studying the judgment to decide whether to appeal or not.
He said the attitude of the union is that they would not appear before a panel constituted to hear the appeal. He added that the union should not have been excluded from the discussion by the Attorney General to appeal.
“We are really worried by Justice Kirby’s statement that the State intends to appeal; should they continue to exclude us from their discussions aimed at launching an appeal then they would argue it alone,” said Chilisa. He said the panel would not be properly constituted if Section 4 has not been amended.
On suggestion that High Court judges are ex-officio members of the Court of Appeal and by virtue of that they qualify to hear the appeal, Chilisa said they could only do that after they have been appointed by a lawful authority.
Commenting on the judgement, Law Society of Botswana (LSB) Chairman Kgalalelo Monthe said “we think it is an erudite and solid judgement. Very reasoned and will enhance the rule of law.”
The union was challenging the constitutional validity of Section 4 of the Court of Appeal Act in so far as it delegates, to the president, parliament’s constitutional powers to determine the number of justices of appeal.
“The applicant contends that Section 4 is constitutionally invalid and the current practice of appointing justices of appeal is unlawful and as consequential relief, seeks declaratory relief against all the justices of appeal except the judge president [Ian Kirby], whose office is created by the constitution. Section 101 (1) (II) provides that a person may be appointed as a justice of appeal for a fixed period of three years notwithstanding that he/she has attained the age of 70. The provision does not provide for a renewal. It follows that a justice of appeal may only be appointed to one three year contract,” Manual Workers Union argued.
According to the union the lawsuit was influenced by the lack of transparency in the appointment of justices of appeal. The unionist argued that Botswana has a history of certain judges of the high court being given favourable treatment by the executive and it is not clear as to whether or not this practice extends to justices of appeal.
The union cited the judicial service commission (JSC), the speaker of the national assembly, the Attorney General, justices the late Elijah Legwaila, Isaac Lesetedi, Monametsi Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton, Craig Howie and John Cameron as other respondents.