The Law Society of Botswana has accused Court of Appeal President, Ian Kirby of pre-empting the outcome of a case in which they are challenging President Khama’s authority to appoint High court judges.
The Law Society case which comes before the Court of Appeal tomorrow (Monday) leans heavily on the argument that Khama’s appointment of judges offends the principle of separation of powers.
Kirby, however, during his address when opening the January Court of Appeal Session said there was no separation of powers between the Executive and the legislature.
In his address, Kirby said the debate on the separation of powers had arisen from comparisons with South Africa and the United States of America whose constitutional dispensations are very different as compared to Botswana. Kirby said Botswana may learn from South Africa and the United States of America in some respects, but in other respects Botswana prefers not to take a leaf from South Africa and the United States of America.
“In Botswana there is no real separation between the Executive and the Legislature. The public service is led by the President and his Cabinet Ministers, who are all full members of Parliament. Together with the other members of the House they conceive and pass all the laws which we in the Judiciary implement and interpret in the performance of our mandate,” said Kirby.
The Court of Appeal President said the true separation is between those two putative branches of government, who are effectively one and the judiciary which must remain independent and free of political influence, whichever party is in power.
“This is notwithstanding the fact that in Botswana, as in virtually every other country in the world it is the Legislature and the Executive ÔÇô the powers that be ÔÇô that in the final analysis legislate for the selection of Judges. And because of this they have the power to appoint most members of the bodies that make such recommendations or choices,” said Kirby
Law Society of Botswana Chairperson Kgalalelo Monthe told Sunday Standard in an interview that Botswana Court of Appeal will on Monday January 16, 2017 at 9:30am, hear an appeal by the Law Society of Botswana concerning the appointment of judges.
He says the main issue before the Court of Appeal is of critical importance to Botswana as it relates to separation of powers and in particular, the powers attributed to the President to appoint the judges.
Monthe said he did not understand why during his
address Kirby chose to voice his own views on a case that is before the courts. He says in doing so the Court of Appeal President indirectly pre-empted the outcome of the case scheduled for tomorrow.
The Law Society of Botswana will meet on January 20 where it is expected to come up with an official position on Kirby’s statements. The position is expected to be submitted to Kirby’s office. Monthe also said he did not want the Law Society of Botswana to be associated with Kirby’s statements that judges are eager to leave a mark on the law reports with innovative and ground-breaking judgments, and to be remembered, in a sense, for having in one way or another having made or changed some aspect of the law; Kirby said it is then for the Court of Appeal to steady the ship, to ensure that judgments reflect the general expectations of society, and to see to it that to the extent that the law, and the principles of constitutional interpretation may permissibly be developed by the Courts “This is done in a gradual and responsible way so as to minimise disruptions in public life,” said Kirby, adding that these were his personal views but believes that they are shared by other members of the Court. Monthe said it is not for Court of Appeal President to talk about judges being eager to leave a mark on the law reports because judges rely on the facts of the cases presented before them; they follow procedures allowed by the law and the outcome of any case either ground breaking or not it is determined by the presentations of the case before the courts. During his term, Khama has appointed all permanent members of the Court of Appeal and more than 11 of the 22 High Court Judges, the highest number of appointment by a single sitting President so far. The number is expected to increase before the end of his term, with Justice SinghWalia retiring in a few months. This gives Khama unrivalled power to impact various legal, political, and policy debates and determinations through his judicial appointments. At the Court of Appeal level judges’ decisions become the precedent and provide persuasive authority for other courts. Even at the High Court, the Justices’ decisions set an enduring precedent ÔÇô one that is not often subsequently reversed. Because High Court judges are tenured for life, the President can leave a lasting impact on Botswana and its laws long after his Presidency has ended. Lawyers argue that, consequently, it is critical to be informed about the President’s motivation and understand the types of individuals he will likely appoint to the bench. Khama, however, told the High Court recently that he is not obliged to disclose his reasons. Khama watchers have resorted to simply joining the dots, and a sinister outline has emerged – that the President has a grand plan to create a judiciary that bends to his will. The conspiracy theory sees Khama retiring under the protection of a friendly Court of Appeal, bench and Chief Justice.