Wednesday, September 23, 2020

“JSC has abdicated its responsibility”

In terms of our Constitution, the Judicial Service Commission (“the JSC”) is tasked with the responsibility of making recommendations to the President of the Republic of Botswana, on who to appoint to the higher courts in Botswana. It is a responsibility which the JSC has always exercised in terms of the Constitution. Traditionally, the role of the President in the appointment of judges has been to appoint whichever persons have been recommended by the JSC.

This tradition was departed from last year when President Khama, for the first time in the country’s history, rejected the JSC’s recommendation to appoint three lawyers as judges. He did not tender an explanation for his rejection of the JSC’s recommendation. The reasons for rejecting the slate of names presented to him by the JSC were undoubtedly political. It is said that he was extremely uncomfortable with the appointment of Gabriel Komboni, because of his political links to the Botswana Congress Party. He was also not comfortable with appointing Lizo Ncongnco as a judge, apparently, because the latter is not a team player.

Faced with a President who wants a greater say in the appointment of judges, than his predecessors had, the JSC last year, yielded to the President’s lust for power and control, and agreed to adopt a system of appointment where the President is given a slate of names for him to choose the judges he likes and reject the ones he is not comfortable with. The system was put into action, for the first time last year, when the President was given a slate of six names from which to choose four names. The President’s choices did not accord with the JSC’s order of preference.

At the last JSC meeting, which was convened to consider the appointment of two judges, the Law Society representative Peter Collins, articulated the position of the Law Society on the new system for appointing judges, which system empowers the President to cherry-pick his judges, from a slate presented by the JSC, based on political considerations. The Law Society’s view is that the new system is unlawful, because the Constitution explicitly provides that the President shall in appointing judges act in accordance with the advice of the JSC, i.e. he is not at liberty to advice himself as to the persons who are to be appointed; his decisions to appoint must be in strict conformity with the recommendations made to him by the JSC.

The Society’s position was supported by Judge President of the Court of Appeal, Patrick Tebutt, who brings with him to the JSC over 50 years of experience in the law. Tebutt took the view that if the President is going to be given a slate of names to choose from, the JSC might as well forget about interviewing candidates and give the names of all the persons who have applied to become judges to the President, for the latter to conduct the interviews and advice himself.

The Sunday Standard broke the news of what transpired at the last JSC meeting. This prompted the Secretary of the JSC to issue a statement last week accusing Sunday Standard of being misleading by reporting that the new system of appointment has been suspended. The Secretary of the JSC also threatened that the Chairman of the JSC, who is the Chief Justice would take action against any person who publishes misleading statements about the deliberations of the JSC.

It was not clear from the Statement, whether the views expressed therein are those of the JSC or those of the Chairman, but I shall assume that they were those of the JSC. The Statement was very disappointing, in many respects. Firstly, it was misleading to the extent that it seeks to deny that the JSC had decided to suspend the new system until July 2010. It is misleading because in submitting a number of names that corresponds with the number of vacancies, the JSC was in effect suspending the new system of appointments until its next meeting, where all its members are expected to be present. Secondly, it seems to ignore the fact that the public has a right to be informed about the policy debates that go on at the JSC, especially where those debates touch on the proper interpretation of the Constitution.

In many countries, deliberations of the JSC are open to the public. Members of the public are able to attend and watch candidates for judicial post being interviewed. The public can only have confidence in the workings of the judiciary if the methods of judicial appointments are transparent. Where the process of appointment and criteria used for appointment is shrouded in secrecy, the pubic cannot be expected to have confidence in the workings of the judiciary. When candidates recommended by the JSC are rejected on the basis of political affiliation, is it unreasonable to conclude that those who are appointed by the President are selected on the basis of their political leanings?

The JSC is accountable not to the President but to the public. Its powers should not be exercised in a manner which seeks to placate the President, but must be used for the good of the public. The JSC must in the exercise of its powers be sensitive to the public perceptions that it is creating and should worry less about disappointing the President.

At the moment the public is in the dark as to the reasons why the JSC saw it fit to break 40 years of tradition. Putting aside the argument pertaining to the legality of the new system of appointment, what is so different about the current President that he needs to be allowed to cherry-pick judges from a list, when his predecessors were not accorded this freedom? The JSC needs to explain to the public why it feels the need to placate the President by allowing him to cherry-pick judges from a slate. The JSC needs to explain to the public the rationale for wanting the JSC’s influence on the appointment of judges diluted, by giving the President the freedom to vet out the candidates that he does not want. It also needs to explain to the public what criteria the President uses when he makes his choices, because the public is in the dark at the moment. The JSC should have used its statement to address these critical issues rather than engage in semantics and make futile threats that have no legal basis.

Through this new system of appointment, the JSC has abdicated its constitutional responsibility of giving binding advice to the President on who should be appointed as a judge. The President is now left to advice himself. In future, prospective candidates for the bench may need to take BDP membership to ensure that the President does not vet them out.

If the JSC is going to allow the President to choose his judges from a slate, it might as well disband and save the public unnecessary expenses. Who is to say, that in future, the President will not demand that he be allowed to carry out his own interviews and to be given a slate of 20 names for every appointment? If those who lobbied for the new system have their way, the President will in future be presented by the JSC with a slate containing all the persons who have put up their names for possible appointment. The JSC will have us believe that there is nothing unconstitutional about President being allowed the freedom of choice. This view is very concerning because this freedom of choice, which the JSC believes the President may enjoy has no constitutional limitations. i.e. on the JSC’s interpretation there would be nothing unlawful in giving the President a slate of fifty names to appoint one judge from the sale. The parameters of the President’s freedom of choice are established at the whim of the JSC. Professor Takerambude’s comparative analysis which was published a fortnight ago, in The Sunday Standard is unhelpful, because the debate surrounding the legality of the new system of appointment is a textual one and not an ideological nor a doctrinal one. Comparisons to South Africa are unhelpful because their constitution is explicit on a slate being sent to the President and the number of names that must be on the slate.

At this stage, we can only hope that Judge President Tebutt will use his countless years of experience to prevail upon those members of the JSC who want the JSC to break from tradition and give the President a freedom of choice in the appointing judges, which is not regulated by the Constitution.

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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.