Justice Tshepo Motswagole is pressing President Mokgweetsi Masisi to justify why and how the executive adjusted salaries for and justices of the Court of Appeal to the exclusion of judges of the High Court.
It however emerges from the court records that this discriminatory remuneration dates back to 2014 under former President Lt Gen Ian Khama’s presidency.
Court records also suggest that Masisi will face a barrage of questions to convince the public that beyond alleged favouritism and cronyism, there seems to be no rationale for appointments of some judges to leadership position at all.
Through his lawyers, Monthe Marumo and Co, Motswagole reveals that sometime in 2014/2015, the Judges (Miscellaneous Provisions) Act, CAP. 04:03 was amended to provide for the remuneration of a full-time citizen President of the Court of Appeal and citizen Justices of Appeal of the Court of Appeal.
“This development pushed the salaries of the Justices of Appeal and the President of the Court of Appeal way up and disproportionately in relation to the remuneration of judges of the High Court, who are also members of the Court of Appeal,” revealed Motswagole.
According to Motswagole; “There were further selective and secretive increases between 2018 and 2020 extended only to the Chief Justice, the President of the Court of Appeal and Justices of Appeal at the exclusion of the Judges of the High Court.”
The judge argued that; “This has resulted in a huge pay disparity with the judges of the High Court, who by virtue of 99(1) of the Constitution, are judges of the Court of Appeal.”
Motswagole’s lawyers contend “that there is no constitutional / legal basis to pay the citizen Justices of Appeal higher than the High Court judges in view of section 99(1) aforesaid.”
“The latter are accordingly entitled to be paid the same salary and benefits as the citizen Justices of Appeal and this is especially so given the fact that the Constitution in sections 96(3) & 100(3) prescribes more or less the same qualifications for the two superior courts of Botswana,” the lawyers said.
Therefore, Motswagole is seeking a declaration that the executive is “precluded by the principles of the rule of law, separation of powers and independence and impartiality of the Judiciary envisaged by sections 3(a), 15, subsections 1 and 2, (10(1) and 10(9) of the Constitution from unilaterally and solely determining the salary and benefits of Judges without recourse to an independent mechanism of doing so, or without the same being prescribed by the Parliament in terms of section 122 as read with section 99(1) of the Constitution.”
He is also seeking a declaration that it “is unlawful and or unconstitutional to pay citizen Justices of Appeal differently to citizen Judges of the High Court and such differential payment violates the constitution, the principle of independence and impartiality of the Judiciary and the principle of parity of remuneration.”
“Consequent to the foregoing order(s), our client as indeed all the similarly situated citizen judges of the High Court, being members of the same court as the citizen Justices of Appeal, are entitled to be remunerated at the same rate and upon the same terms,” the lawyers said.
They added that; “It is hereby declared that the salary and allowance arrears arising from the previous differential treatment be paid to our client forthwith.”
The judge also demands that Masisi should “cause the immediate stoppage of the practice of negotiations of the remuneration and terms of office for the judicial officers directly between the Executive and members of the Judiciary and proceed forthwith, and in any event within 5 months.”
He also demands that Masisi should “cause the establishment of an independent multidisciplinary statutory body of experts covering law, economics, accounting, management and research or other appropriate profession, with staggered terms of office to ensure continuity and institutional memory.”
He wants the independent multidisciplinary statutory body “shall be responsible for the assessment and determination of the appropriate remuneration and the terms and conditions of judicial officers especially members of superior courts after receiving submissions from the public, the judiciary, the law society or any institution whether local or international with the necessary knowledge and experience on the subject.”
The judge demands that the body in question should “thereafter make recommendations to Parliament through the Minister Responsible for Justice and after comment by the Executive, which comment if contrary to or inconsistent with the recommendations, shall be based on substantial justificatory reasons and shall be judicially reviewable for rationality and proportionality.”
Motswagole also contended that the absence of a “clear written policy on Career Development Path in the face of section 127(6) of the Constitution providing for appointments on promotion and sections 3(a) and 15, subsections 1 and 2 of the Constitution proscribing any discriminatory and selective treatment.”
He said the result is that this “has opened the door to habitual and wanton disregard for statutory prescription on seniority in section 5(3) of the Court of Appeal Act and section 4 of the High Court Act.”
This, the judge said, “has consequently led to a breach of constitutional requirement for judicial independence and impartiality enshrined in sections 10(1) and 10(9) of the Constitution, with high likelihood to undermine the public confidence in the Judiciary.”
Motswagole’s lawyers indicated that, “Our hard working and diligent client, and we believe other credible judges, are devalued and there is a reasonable suspicion that they are being victimised for their decisional independence in order to pressure them into capitulation and betrayal of the oath of office in consideration of monetary advantage.”
Mothe Marumo & Co argued that “The failure to advertise vacant offices of the Court of Appeal and engaging in secretive system of ascertainment of interest of potential candidates is improper and contrary to law.”
They said this is especially so in the light of the application of an acceptable selection method at the High Court.
“There cannot be any doubt that the practice adopted by the JSC at the Court of Appeal is contrary to the rule of law especially the requirement for transparency, objectivity, equality of opportunity and non-discrimination enshrined in sections 3(a) and 15, subsections 1 and 2 of the Constitution,” they said.
