A case in which prominent lawyer and judge aspirant, Omphemetse Motumise and Law Society of Botswana (LSB) have taken President Ian Khama to High Court is expected to open a can of worms on how the government maybe using intelligence agencies to illegally spy on citizens.
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 Second and Third Respondents respectively.
It appears from court documents seen and studied by Sunday Standard that Khama could have used information from intelligence agencies to reject Motumise’s judge candidature claiming that he was a security threat.
In his replying affidavit, Motumise states that since he does not interact with Khama, and the later averse that he has reasons for rejecting advice to appoint him, he could only have derived any information about him (Motumise) from informants.
“The First Respondent does not explain why he cannot disclose his informants to me and allow me to face them in my defence. The reluctance to disclose reasons to me, if any exist, I submit is borne out of fear of placing on record the identity and modus operandi of the informants who would be operating outside the law by placing citizens under surveillance to collect allegedly private information,” said Motumise.
In his founding affidavit Khama had stopped short of calling Motumise a national security threat.
“ First, in appointing judges, I take into account a broad range of material considerations, including matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary,” Khama had stated.
Hence Motumise calls on the court to protect him against Khama’s allegations. Motumise says Khama “makes the most damaging insinuations imaginable to my character, reputation and integrity. The contents therefore have the effect of exposing me to ridicule, hatred and suspicion by members of my profession, law enforcement agencies and ordinary members of society.”
Motumise further states that “no right-thinking member of society would trust or want to associate with a person who has been declared by the head of state to be potential risk to national security. Such a person will in all likelihood be shunned and avoided out of the self-preservation of those who may come into contact with him.”
“I emphatically deny that I’m a national security threat or that it could ever be honestly suggested, even remotely, that I am such a threat of any description whatsoever,” said Motumise.
He added that “furthermore I deny that any official policy of our government prohibits the appointment of independent minded persons to judicial office.”
Motumise called on Khama to disclose reasons for rejecting the advice of the JSC as well as disclosing information he holds against him.
“The First Respondent implies that disclosing such information might be embarrassing to me. But he could disclose it to me and afford me an opportunity to defend myself and to contest the veracity of any adverse information he holds against ne,” he said.
Motumise said Khama does not disclose why as a citizen of Botswana he is not entitled to that fundamental right.
“What is embarrassing and humiliating is the very suggestion that the President might be holding embarrassing information about a citizen,” said Motumise.
Motumise said that it is quite likely that a person in the position of Khama might be reluctant to disclose such information because he had acquired it outside the legal process or its status is no more than rumour, hearsay or contrived information.
“A court of law, I would submit, cannot be called upon to accept that an official duty was performed duly, lawfully and properly in the absence of reasons. To deny me reasons is to deny me due process and the protection of the law,” said Motumise. Hence Motumise wants Khama to come clean about allegations he made against him. He said there is nothing in his socio-political orientation and background which renders him a threat to national security or unsuitable for appointment.
LSB executive secretary Tebogo Moipolai states that it appears that Khama would have obtained from third parties information about Motumise without providing him with the opportunity to challenge any information so obtained. Moipolai states that Motumise has further never been approached by any of the security establishments, the police, the DCEC or any other security organ to answer for his conduct.
“It is a disturbing assertion that a citizen can, in the manner suggested by the First Respondent, be declared or deemed a risk to national security without slightest shred of evidence and without regard to the rules of natural justice,’ said Moipolai.
On Khama’s argument that in some circumstance he rejects candidates for the position of a judge because “questions of transparency are outweighed by the protection of the privacy of individuals candidates,” Moipolai states that such an assertion has the chilling effect on potential candidates to the extent that it suggests that Khama maintains a system of surveillance to gather embarrassing information about citizens of a certain political orientation, which is used to block their judicial appointment.
“The First Respondent should also not be permitted to claim the protection of the privacy of individuals of information that is not made available and is not known by the said individuals. The First Respondent may also not broadly claim that such information is private without providing the court with sufficient particulars for it to be satisfied that the nature of the information is one that falls within the protection of privacy,” said Moipolai.
Motumise and LSB are represented by Tshiamo Rantao of Rantao Kewagamang Attorneys while Khama and JSC are represented by the Attorney General.