Prominent and senior lawyer Omphemetse Motumise is questioning why the Judicial Service Commission (JSC) failed to defend its position against President Lt gen Ian Khama. The JSC gave Motumise a glowing assessment as a suitable candidate for the position of a High Court Judge but failed to defend their assessment against President Ian Khama who rejected the recommendation that Motumise be appointed to the bench.
The case concerns the reviewability of Khama’s decision not to appoint Motumise as the judge of the High Court following recommendation of the JSC. Khama is the first respondent while the JSC and Attorney General are cited as second and third respondents respectively.
In papers before court, Motumise states that “I want to place it on record that I will forever cherish glowing assessment it made of me in its advice to the First Respondent (Khama) when it advised him to appoint me.”
However, Motumise says “what Mr. Motlhabi (Registrar of the High Court) does not explain in his affidavit, and a question that is burning in my mind, is why the JSC, not being privy to the First Respondent’s reasons for not following its advice, is unable to defend such advice.”
Law Society of Botswana (LBS) which is suing President Khama together with Motumise for rejecting his appointment also question’s Motlhabi’s role in the JSC.
LSB Secretary Tebogo Moipolai states in his replying affidavit that “the deponent to the second respondent’s (JSC) answering affidavit, Mr Michael Lebogang Motlhabi (“Mr Motlhabi”, is not a member of the JSC in terms of section 103 of the Constitution.
Moipolai argues that there is no provision in the Constitution of a secretary to the JSC. Moipolai said they note further that “the deponent has not placed a resolution before the court indicating that he was properly authorised by the JSC to depose to the answering affidavit.”
Moipolai said that the role of the JSC in the appointment process is so vital that without the JSC process, advice and recommendation, President Khama will not be able to consider and appoint any candidate.
“Thus the only criteria for appointment is that followed by the JSC and appointment can only be made according to advice of the JSC not any other advice. Moipolai said the JSC was set up to protect and promote the judicial independence of judges whose appointment and discipline might otherwise be subjected to political manipulation.
He said the fact that the JSC has consistently abdicated its responsibly and/or recognised the President’s breach of section 96(2) does not avail the JSC.
“The JSC and the President, on their version, have constantly breached section 103(4) in that the JSC has allowed the President to control and direct it where he refuses to take its advice, causing it to reconvene with a view to recommending the name which the President, and the JSC, likes,” said Moipolai. He said that was exactly what happened in the appointment process relating to Motumise. He further stated that without the advice of the JSC on any issue relating to the appointment process, Khama is not empowered to appoint or decline an appointment.
Moipolai argues that President Khama cannot rely on the advice of the Cabinet and “his own advisors” when the Constitution itself provides that he must rely on the JSC’s advice and no other.
“The President is not bound to solicit the advice of any other person. In this case, his decision falls to be reviewed and set aside because he took into account irrelevant considerations,” said Moipolai. He denied the public scrutiny inherit in public interviews is likely to dissuade candidates from seeking judicial appointments. He said lawyers like Motumise, as the JSC describes him in its minutes/proceedings would not be dissuaded because they have nothing to hide.
Motumise and LSB are represented by Tshiamo Rantao of Rantao Kewagamang Attorneys while Khama and JSC are represented by the Attorney General.