Monday, October 19, 2020

Khama under no obligation to appoint recommended candidate judge-court

The Law Society of Botswana and lawyer Omphimetse Mothumise have lost a case in which President Ian Khama was being sued for rejecting the appointment of veteran attorney.


Early last year Khama rejected the recommendation of the Judicial Service Commission (JSC) to appoint Motumise to the bench. Three judges Singh Lakvinder Walia, Abednico Tafa and Phadi Solomon presided over the case.


When delivering judgement Walia agreed with President Khama that in so far as his decision was motivated by concerns of National Security and policy, he was under no obligation whatsoever to make any disclosure as to why he rejected the JSC’s recommendation to appoint Motumise judge.


“It would, indeed, have been foolhardy and irresponsible to air such matters in public,” said Walia. 


LSB and Motumise had argued that President Khama’ decision not to appoint the lawyer was tainted by irrationality


But Walia found that “In so far as the decision may have been based on adverse information in relation to the person of the applicant, it was, in my view, benevolent of the President to not make a disclosure in public, lest the applicant (Motumise) suffer to his reputation.”


Walia added that “In my view the President has committed no reviewable wrong in making the decision. The argument on irrationality is therefore without merit.”


Walia said there was a flaw in the argument that Section 96(2) was intended from the onset to vest the effective power of appointment of High Court Judges in the Judicial Service Commission  and that the President’s role is a mere formality.


“If the JSC was always intended to be the sole appointing authority, why bring in the President at all? This question is not answered by the Applicants,” he said. 


According to Walia the President too enjoys some absolute and some tempered powers adding that he has the exclusive powers to appoint Ministers and Assistant Ministers, Attorney General, Chief Justice, DPP, President of the Court of Appeal and Lay members of the JSC.  He said the JSC does not even play an advisory role in the removal or suspension of judge.


“Having made a recommendation, it falls out of the picture altogether. How then can it be regarded as the appointing authority?” he asked. The judge said the power to appoint judges vests with the President.


“He shall be the appointing authority but in the exercise of his powers as such, he may not appoint a person not recommended by the JSC,” said Walia.


Turning to the argument on transparency, Walia said the LSB and Motumise are wrong to contend that Section 127 permits a blanket direction by the court to the JSC to conduct its business in a particular fashion, either in relation to interviews or otherwise.  He said the applicants plainly ask the court to prescribe a procedure to be adopted by the JSC.


Walia dismissed the application for an order that President Khama’s decision not to appoint Motumise as judge of the High Court be reviewed and set aside.


He also dismissed an application for an order declaring that President Khama is bound to follow and implement the lawful advice of the JSC on the appointment of High Court.


“The application for an order declaring that the JSC’s interviews of candidates for appointment as judges must as rule be open to the public is refused and the application for an order declaring that the JSC must make public the outcome of its deliberations on the appointment of judges is refused,” ruled Walia.


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