The Law Society of Botswana (LSB) has issued a statutory notice that it will be taking President Ian Khama to court to challenge the constitutionality of his decision to disregard the recommendation of the Judicial Services Commission (JSC) for attorney Omphemetse Motumise to be appointed as High Court Judge.
Last Wednesday, the LSB gave the JSC, President Khama and the Attorney General a statutory notice to institute an application for an order that President Khama’s refusal to appoint Motumise as a Judge of the High Court as advised by the JSC is a breach of section 96(2) of the constitution. The LSB would also apply for the decision not to appoint Motumise to be set aside and a declaration that the procedures for appointment of Judges are not and should not be confidential.
The LSB gave the JSC up to 5pm last Friday to have provided a written undertaking that it shall not recommend to the President any other name for appointment to the High Court bench, either in full or acting capacity, pending institution of a review and constitutional application.
“Should we not receive the undertaking as requested above we are instructed to launch an urgent application for an interim interdict pending the review application,” read the letter to the JSC.
The matter stems from President Khama’s decision to reject a recommendation by the JSC for Motumise to be appointed to the bench. The LSB’s position has always been that President Khama has no discretion in terms of section 96(2) of the constitution and he must appoint in accordance with the advice of the JSC and not any other person.
“With respect, there is no room for President Khama to reject the advice. His refusal to do so is quite clearly unconstitutional,” said the LSB.
On 28th July 2014, the LSB wrote a letter to the JSC requesting for minutes, if any, relating to a decision to delegate the short listing of candidates who have responded to advertisements for positions of High Court Judge. The letter also sought clarity on whether or not it was the position of the JSC that the entire LSB is not entitled to information from their representative on who applied for appointment to the bench, who was shortlisted and whose name was recommended to President Khama for appointment. The LSB also wanted to know whether or its representative was not allowed to furnish the Council of the LSB with such information and the rationale therefore.
In its response, the JSC said its role was purely advisory. It also stated that its processes are confidential and should not be disclosed to the LSB. The LSB shot back, saying the JSC’s claim that its role was advisory flies in the face of the pre-emptory section 96(6) of the constitution, which makes it clear that the President “shall” appoint “in accordance with” the advice of the JSC.
“Your suggestion that the processes or procedures of the JSC are confidential even for the LSB, which has a representative in the JSC, is flawed. Although the constitution provides that the JSC shall regulate its own procedures, this does not mean that the JSC procedures can be secretive. They ought to be transparent as opposed to secretive or confidential,” said the LSB.
It also stated that its representative in the JSC acts in his representative capacity and it follows that he must at all times be subject to his principals” directions and authority.
“In any case, there has never been a proper decision for JSC procedures to be secretive, particularly the ones relating to appointment of judges,” said LSB.
It then demanded a written undertaking from the JSC that no recommendations will be made to President Khama for anyone to be appointed High Court Judge pending institution of a review and constitutional application. The letter also served as a statutory notice for an order that the refusal by President Khama to appoint Motumise as a Judge of the High Court was unconstitutional. The LSB would also apply for the decision not to appoint Motumise to be set aside and a declaration that the procedures for appointment of Judges are not and should not be confidential. Alternatively, the LSB would seek an order declaring that its representative in the JSC is entitled to consult the LSB Council on all matters concerning the issue of appointment of Judges.
The JSC met on Friday and immediately dispatched a response to the LSB, in which it stated that it had deliberated at length on the issue, particularly on the demand for a moratorium on appointment of Judges pending resolution of the matter. The JSC resolved not to recommend appointment of a full time Judge to the President.
“However in view of the need for expeditors disposal of cases at the High Court and the avoidance of an accumulation of a backlog of cases, the JSC resolved to recommend the appointment of an acting Judge pending resolution of the matter,” read the JSC response.
In an interview with Sunday Standard on Friday, LSB attorney Tshiamo Rantao said he was happy with the JSC’s response as it demonstrates its appreciation of the important issues at hand. He added that he will meet with his clients, who are currently in Francistown on LSB business, to chart the way forward.
“We appreciate the diligence of the JSC, especially because they have indicated that they will not make any full time appointments pending determination of the case. You must appreciate that we received the response this afternoon. We will deliberate on it and decide whether or not we must go ahead with the urgent application, or whether we must challenge the temporary appointment that the JSC is talking about,” he said.