Sunday, February 28, 2021

Interviews for judgeship candidates should be public ÔÇô Law Society

The Law Society of Botswana (LSB) seems determined to ensure that in the future, the controversy around the appointment of judges is kept to a minimum. In the last selection round, the Judicial Services Commission (JSC) recommended attorney Omphemetse Motumise to be High Court judge. However, President Ian Khama, who is the appointing authority, rejected such recommendation, prompting the LSB to challenge his decision in court. The prayers that the Society has made to the court are futuristic because it wants the court to deal with more than just Motumise’s case. LSB’s founding affidavit, which is deposed to by its secretary, Tebogo Moipolai, is asking the court “to declare that the president is bound to follow and implement the lawful advice of the Judicial Services Commission on the appointment of High Court judges in terms of section 96(2) of the constitution.” The provision in question 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 CommissionThe LSB is represented on the JSC but its representative does little more than attend meetings and to all intents and purposes, the Society has no role in the process of appointing judges. The Law Society wants the court to declare that “the representative of the Law Society of Botswana on the Judicial Services Commission is entitled to report to and consult with the Council of the Law Society on all matters relating to the appointment of judges.” The entire JSC process as relates to the appointment of judges strictly happens behind the scenes. The Commission meets at a closed-door meeting, considers applications, holds its deliberations and makes a recommendation which it forwards to the president who, in turn, makes a public announcement about whom he has appointed judge following such process. It is likely this is not the first time that the president has rejected a name recommended to him by the JSC – the only difference this time is that information about the rejection of Motumise’s name was leaked. LSB wants the court to make a declaratory order that says that JSC interviews of candidates for appointment as judges “must as a rule be open to the public.” Additionally, it wants the JSC to publicise the outcome of its deliberations on the appointment of judges.

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