The decision by the Judicial Service Commission (JSC) to extend 73-year-old Lakhvinder Singh Walia’s contract with the Court of Appeal (CoA) has reignited the debate around the Commission’s propensity to recycle judges at the expense of other qualified citizens.
Member of Parliament (MP) for Selebi Phikwe West Dithapelo Keorapetse said such conduct compromises the independence, integrity and public confidence on the Judiciary.
“Any person who keeps getting contract extensions cannot act independently because they have to constantly act in a manner that guarantees their next contract renewal. This privatization of the Court of Appeal, especially by the Judge President, when is it going to end, because he has also long reached retirement age but the JSC continues to extend his contracts,” Keorapetse said in Parliament recently.
Justice Walia reached the mandatory retirement age of 70 years on the 30th of December 2016 while he was serving as a Judge of the High Court.
He was subsequently granted an extension of contract.
“The extension was granted in compliance with Section 104 of the Constitution, which provides that the JSC has the power to appoint and remove Judges. The procedure is fair to the extent that it was carried out in compliance with Constitutional provisions. Section 103 (4) and (5) provide that the JSC will independently regulate its own procedures and shall not be subject to the direction or control of any other person or authority,” Minister of Justice Kagiso Mmusi responded.
He said in terms of Section 101 (1) of the Constitution of Botswana, Justices of the Court of Appeal, unlike the High Court, are specifically eligible for appointment on contract after attaining the age of 70 years and as a result the law has not been undermined in extending Walia’s contract.
The JSC, Mmusi said, when making recommendations for judicial appointments acts in the best interest of the administering justice. “I believe that the JSC remains mindful of the need for qualifying and deserving Batswana to be appointed and will therefore continue to balance this need.”
Walia has not been without controversy during his career as a judge. In 2015 he was reported to then Chief Justice Maruping Dibotelo and the Judicial Service Commission (JSC) for “judicial misconduct”.
He stood accused by Leburu Attorneys of pre-judging a murder case in which the State was prosecuting their client for murder. Leburu Attorneys had filed an urgent application for bail.
The matter was allocated to Justice Walia and after conferring with the Registrar of the High Court, the matter was set down for the 19th of June 2015. The set down was also communicated to the prosecution.
“However on the 16th of June 2015, I was informed by Justice Walia’s clerk and the Assistant Registrar Nlanda that Justice Walia has written a letter to the Registrar stating that the matter is not urgent. A misnomer to us,” Leburu Attorneys stated in their letter.
They argued that at the time Walia authored the letter he had not heard any representations from counsel on both sides and had made decision on his own.
Most recently the Directorate on Corruption and Economic Crime (DCEC) told Sunday Standard they had launched an investigation against Walia following allegations of conflict of interest.
The investigation followed a complaint by a local company Tours of Africa. “I’m writing this to express our discontent in particular the manner at which the said Justice has conducted himself and his conflict of interest in the matter involving Tours of Africa (Pty) Vs Regent Insurance Botswana Limited…” the company wrote.
Walia was again accused of conflict of interest following his involvement as part of a panel of CoA judges in a case that pitted African Alliance and two of its former employees, former CEO Don Gaetsaloe and Moarabi Mariri, a Senior Sales Executive.
African Alliance was represented by Armstrongs Attorneys where, the two former employees argued, Walia used to be partner and that his wife also worked for the law firm. Walia will be at least 78 years old by the time his current contract runs out. Judge President of the CoA Ian Kirby is currently 75 years old.