The Law Society of Botswana (LSB) has punched holes in the judgement that was handed down recently by a panel of three judges of the High Court in the case in which prominent lawyer Omphimetse Motumise and the society were suing President Ian Khama for rejecting him as High Court judge. The judgement was written and delivered by High Court Justice Lakvinder Walia and confirmed by Justice Abednego Tafa and Phadi Solomon as a unanimous decision. In papers notifying the Attorney General of its intention to appeal, the society through its attorneys, Rantao and Kewagamang Attorneys dressed down the judgment over what it calls the court’s failure “to take guidance from foreign and local authorities, publications and reports which the society submitted to the court as providing to the construction of Section 92 (20 of the Constitution.”
The publications are the Report of the Presidential Commission on the Judiciary 9 July 1997, the compendium and analysis Best Practice on the Appointment, Tenure and Removal of Judges under Commonwealth Principles 2015, the report of the Bechuanaland Conference 15 February 1966. The LSB states that having properly accepted in paragraph 80 of the judgement that executive decisions made irrationally are reviewable, the High Court erred in its findings in paragraph 85 and 86 of the judgement that Khama was under no obligation to disclose details in so far as as his decision was motivated by concerns of National Security or policy or based on adverse information in relation to Motumise. The society said there were no facts before court to establish whether the decisions were motivated by concerns of either national security, policy or information in relation to Motumise. The LSB says Khama did not provide reasons for his refusal to implement the Judicial Service Commission’s considered recommendation and there was no documentation generated by Khama or his office in the decision making process.
The society also faults the High Court in its finding in paragraph 95 of the judgment that Khama was under no obligation to provide reasons for his decision. “The Court erred in this regard for failing to follow its own judgment in Letsatsi Investment Pty LTD vs. South East District Council and another 2009 (1) BLR 449 (HC) where it recognised the purpose of giving reasons, which is to assist the court whether the decision to was irrational or erroneous, without itself re-determining the questions of fact,” said LSB. In relation to the Judicial Service Commission being made public, LSB states that the High Court erred in failing to recognise the general rule in relation to the protection of the privacy of the applicants who apply for high public office that they must accept that the public has a legitimate interest in their application unless there are reasons that justify secrecy which in this case were not given. In relation to the disclosure of the Judicial Service Commission on the appointment of judges, the LSB says that the High Court failed in giving proper weight to the public interest in making the deliberations open to the public.
According to LSB, the High Court also failed in its finding that the application was not brought in the public interest but in the interests of the Judicial Service Commission in its reasoning for awarding costs against the society. “This finding is contradicted by the Court’s statement in paragraph 46 of the judgment that the issue raised in the application are of national and public interest and its acknowledgment in paragraph 84 of the judgment that the First Respondent (Khama) has generated public interest” argued LSB.