The Judicial Services Commission (JSC) has sneaked judicial appointments procedural reforms through the back door to give President Ian Khama the power to choose judges ÔÇô The Sunday Standard investigations have revealed.
Under the new system, the President’s powers have been extended beyond being an appointing authority and he will now have a hand in choosing who should be appointed to the bench.
Under the old system, the President only had the power to appoint judges but had no discretionary powers to choose who he liked. The JSC would interview candidates and recommend names to the President for appointment as per Section 96(2) of the Botswana Constitution.
Under the reformed system, the JSC interviews candidates and then gives President Khama a list of names to choose from. The new system, which is being challenged by the Law Society of Botswana and is understood to have divided the JSC, was used in the recent appointment of judges who included Justice Tshepo Motswagole and Justice Ookeditse Tshosa as full time judges and Justice Michael Leburu and Justice Kholisani Solo as acting judges earlier this year.
The JSC forwarded six names to President Khama, indicating their order of preference. The Sunday Standard is, however, informed that Khama disregarded the JSC order of preference and instead followed his personal preferences in appointing the judges. Some members of the Council of the Law Society are unhappy that the new system has opened the door for political interference and manipulation that is not sanctioned by the constitution. There are fears that the new system is potentially unconstitutional and has blurred the line between the judiciary and the executive as provided for under the principle of separation of powers.
The new system has been brought up for debate at the next JSC meeting. The controversial system was put together as a compromise after President Khama turned down recommendations by the JSC to appoint Acting Judge Gabriel Rwelengera; Francistown based Lawyer, Gabriel Komboni and former parliamentary counsel, Lizo Ngcongco as judges sometime last year. The three were selected by the JSC following interviews. The Registrar and Master of the High Court, Godfrey Nthomiwa, was not available for comment.
This is not the first time the law society has questioned the appointment of judges. Sometime last year, the law society queried the appointment of Justice Terrence Rannowane without it being represented.
The Law Society had notified the High Court through the Registrar that Peter Collins had replaced Terrence Dambe as their representative in the JSC.
Chairman of the Law Society of Botswana, Tebogo Sebego, was quoted in the media complaining that they were shocked when Rannowane was appointed without the JSC having invited their representative.
Master and Registrar of the High Court, Godfrey Nthomiwa, responded that the Law Society was to blame because they informed the JSC about the change of representative at short notice.
“We received a letter informing us about a change of their representative the day before the scheduled meeting of the JSC. It is the manner in which the Law Society handled the change of their representative because we had expected their former representative, Dambe, to attend the meeting,” he said.