At a time that Botswana is trying to fathom what the framers of the constitution intended with regard to the appointment of puisne (regular) High Court judges, a judgement from the Burundian Constitutional Court provides interesting insights – and similarities. The latter court was seized with a matter in which 14 senators requested the interpretation of Articles 96 and 302 of the Constitution. Article 96 reads as follows:
“The President of the Republic is elected by direct universal suffrage for five years renewable once” while Article 302 reads as follows: “Exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the elected Senate meeting in Congress, with a majority of two thirds of the members. In its judgement, the court says that in order to analyze the provisions for which interpretation is being sought, there is need to, first of all, remember the background against which and when they were drafted. “Although it may not be difficult to interpret the letter of Article 96, the same cannot be said of Article 302. The word “exceptionally” casts doubt on the real intentions of the drafters of the Constitution. In order to understand the spirit of the Constitution, it is useful to first, understand the document which mostly inspired the drafters of the 2005 Constitution.
To establish the intention of the drafters, one may examine the documents which inspired the Burundian drafters and therefore, special attention will be given to the Arusha Peace and Reconciliation Agreement for Burundi, a genuine, unavoidable and indispensable document from which the inspiration was drawn by the Burundian Constitution drafters,” reads the judgement in translation from the original French of the Burundian court. Signed on June 21, 1998 in Arusha, Tanzania, the Arusha Peace and Reconciliation Agreement for Burundi ended years of civil war in the turbulent East African nation. The talks between the warring factions were facilitated by former Tanzanian president, Julius Nyerere and then South African president, Nelson Mandela. Both men are now deceased.
The judgement says that “it is useful to recall that the Arusha Peace and Reconciliation Agreement underwent a juridification process in order to make it part of the national legal system” and that “the interpretation of the provisions in question will require trying to establish what the lawmakers had in mind when they were drafting the fundamental law of 2005.” The process of trying to understand the intention of the constitution’s framers could be as paramount here at home when the High Court considers the matter of who between the president and the Judicial Services Commission (JSC) should appoint puisne judges. In place of the Arusha Peace and Reconciliation Agreement for Burundi, one of the documents that the Botswana High Court may have to rely on is the minutes of the Independence Conference that was held at Marlborough House, London in February 1966.
Initially, the draft constitution prescribed that the JSC should appoint judges but when it was reviewed, M. G. de Winton, the legal advisor to the United Kingdom team, pointed out that “It was usual for the President to be formally responsible.” The result was that “The Conference agreed that puisne judges should be formally appointed by the President, acting on the advice of the Judicial Services Commission.” The final version that is now contained in Section 96 of the Botswana constitution says that while the president shall be solely responsible for the appointment of the Chief Justice, “the other judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.” “In accordance with” seems to be causing a lot of headache. It has emerged that while the JSC had recommended Omphemetse Motumise in the last selection round, President Ian Khama decided otherwise.
In its position paper on this matter, the Law Society of Botswana, which has announced plans to take the matter to court, says that “in accordance with” doesn’t give the president wiggle room for discretion, that he necessarily has to appoint the person recommended to him by the JSC. The Burundi Constitutional Court was considering a matter relating to a bid by the incumbent president, Pierre Nkurunziza, to run for another term and ultimately ruled that his candidature was constitutional. The court found that the president could run because his first term, when he was picked by parliament rather than by popular vote, did not count. Interestingly, the vice president of the Burundi Constitutional Court, Justice Sylvere Nimpagaritse, fled the country before the judgement was handed down.
He later told AFP that he and his colleagues had come under enormous pressure from senior government figures and even had death threats made against them if they didn’t rubberstamp Nkurunziza’s candidature. Justice Nimpagaritse claimed that a majority of the court’s seven judges believed it would be unconstitutional for Nkurunziza to stand again but all knew better than to write a dissenting view. More interesting and telling of how imperfect the judicial system is, legally this judgement (which was made by the highest court in the land) remains valid despite the fact that judges made it under duress.