Veteran lawyer Omphemetse Motumise has challenged President Lt Gen Ian Khama to disclose contents of an investigation that showed the lawyer was not fit to be appointed to the bench.
This emerged in a fresh case in which the Law Society of Botswana (LSB) has approached the High Court to compel the president to appoint Motumise.
Earlier last month Minister of Defence, Justice and Security, Mr Shaw Kgathi told a press conference that President Khama Ian Khama would uphold the Court of Appeal (CoA) judgment which ruled against his decision not to appoint Motumise High Court judge. Kgathi said while President Khama was of the view that the matter was incorrectly decided, he would nonetheless uphold the CoA’s decision. The minister said the Khama believed the judgment was in contrast with the Constitution, which vested the President with the power to appoint judges to the High Court bench. He said government would never disrespect a court ruling no matter how it disagreed with it.
Kgathi stated that the president had decided against a Judicial Services Commission recommendation to appoint Motumise to the bench because the veteran lawyer failed the fit and proper test.
Motumise is however challenging the claim, stating that he learnt for the first time through a Radio Botswana and Btv news bulletin that he had failed a vetting investigation. The claim was further repeated on the government Daily News and private print media.
Motumise has dared Khama to produce evidence that he had been vetted or investigated.
In his confirmatory affidavit, Motumise said emphasis was placed by the issuer of the news bulletin (the Office of the President) on the point that vetting and investigations had found me to be unfit for duty adding that no reasons were offered.
“I deny the insinuation in its entirety. In fact, it was for the first time that I heard of the alleged vetting and investigations. No official of the state, or anyone for that matter, has approached me to charge me with any offence, impropriety or to confront me with any allegations of unfitness,” he said.
According to Motumise, “I’m also not aware of any investigations against me by law enforcement agencies or any agent of the government, whether as part of security or general or specific pre-employment reference checks.”
He submitted that in any normal pre-employment assessment, carried out in good faith, in the course of official duty, he would have been offered an opportunity to, at the very least comment on any such assessment or its findings.
“This is done to guard against situations where evidence is contrived against individuals and they are condemned in their absence, unheard and without the opportunity of recourse,” said Motumise.
He further observed that “ The news bulletin had another disturbing aspect: its issuers, and these are state officials, did not appear to appreciate that the position of the law is what our Court of Appeal pronounces and that its judgments must be obeyed without question.”
Motumise said in the Botswana Television (Btv) news broadcast carried by the TV station on three successive dates, i.e. the 4th, 5th and 6th September 2017 during prime time, it was stated that information was not laid before the Judicial Service Commission (JSC) because of fear that it would be leaked by one of its members who had been identified as responsible for leaks.
This, Motumise said, was said by Minister of Defence, Justice and Security Mr Shaw Kgathi in the presence of Carter Morupisi, the Permanent Secretary to the President and the Attorney General Abraham Keetshabe; both members of the JSC.
“These two individuals who would be well placed in their official capacities and as members of the JSC to place information before the JSC as envisaged in the Court of Appeal Judgment. Their failure and that of the First Respondent (President Khama) to do so speak volumes,” he said.
In the absence of reasons behind the apparent refusal or reluctance by President Khama to appoint him, Motumise highlighted two important matters affecting him.
“The absence of reasons behind the apparent refusal or reluctant by the First Respondent to appoint me in accordance with section 96 92) of the Constitution as advised by the second respondent and the prejudice that I have and continue to suffer as a result,” he said.
From the outset, Motumise sated, the letter in which President Khama communicated his rejection to appoint him as advised by the JSC contained no reasons at all.
“The reasons for refusal to appoint me were requested by me and the First Applicant (LSB) here during proceedings to review the decision of the first respondent. In those proceedings, I specifically called upon the First Respondent to disclose to me and the JSC any information in his possession which he believed, justified his rejection of the advice of the JSC,” he said.
Motumise further called on Khama to disclose the identity of any informants who would have furnished him with any information concerning him which he deemed adverse so that he could answer them and defend himself.
“The invitation went unheeded and no information was supplied to me. To my knowledge, none was furnished to the JSC as its affidavits in the review proceedings contained no such information,” he said.
