By going to the highest court in the land to assert constitutional authority to appoint High Court judges, President Ian Khama joined a club of Commonwealth heads of state who have made similar effort and failed dismally.
Explaining this issue, Justice Lord Hamilton of the Court of Appeal said that when the constitution of a Commonwealth country says that the head of state shall appoint a public official, that is merely a traditional nicety and not a legal mandate. Section 96 of the 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.”
Apparently, Kenya’s constitution has the exact same wording on the appointment of judges as Botswana’s. However, President Uhuru Kenyatta, as his predecessors, doesn’t appoint judges but merely endorse names that the JSC submits to him. In compliance with Section 174(6) of then constitution, South Africa does the same with its Constitutional Court judges. Hamilton quoted the writing of a distinguished South African legal scholar, Professor Christina Murray, who has discussed this arrangement in her extensive body of scholarly work: “In Westminster-style systems, an obligation to act on advice removes any discretion from the actor. Just as previous constitutions instructed heads of state (or Governors-General) to carry out various acts, s174(6) casts the president in the role of ‘head of state’ when appointing those judges and requires him to implement the JSC’s decision.” To the list of countries observing that tradition, the judge added Turks and Caicos Islands, a British Overseas Territory consisting of the larger Caicos Islands and smaller Turks Islands.
Where heads of state have attempted to challenge this arrangement to assert legal authority, they have not been successful. Hamilton quoted examples from three Commonwealth countries.
A challenge in Singapore ended with a joint judgement that read: “The words ‘on the advice of the cabinet’ in Art 22P(1), cannot be any clearer, especially when they are read in light of the words ‘act in accordance with the advice of the Cabinet’ in Art 21(1). The aforesaid words in Art 22P(1) mean what they say. They do not mean what [counsel for the appellant] says they mean i.e. that the President may act against the advice of the cabinet.”
Closer to home in Lesotho, the constitution says that when military-related appointments are to be made, the King shall act in accordance with the advice of the Military Council. In a case similar to Botswana’s, the Chief Justice found that “had it been intended to import a discretion on the King, a different phraseology, such as ‘acting in (after) consultation) with’, would no doubt have been used; the phraseology actually used (‘shall in accordance with the advice of’) imported that the King was constitutionally obliged to follow the advice given.”
In India, the Supreme Court has had to consider the effect of an amendment to the country’s constitution, which amendment inserted the words “the President shall act in accordance with the advice of” the Council of Ministers headed by the Prime Minister. The man who is now India’s Chief Justice observed that with the insertion of these words, “the president came to be bound to exercise his functions in consonance with the ‘aid and advice’ tendered to him.”
As a matter of fact, the Queen of England herself, who is the head of the Commonwealth, formally appoints officials without exercising any discretion.
“Advice which constitutionally has to be followed is not restricted to expressions in formal constitutions. For example, where in such Commonwealth cases as may ultimately be appealed to the Privy Council, the Judicial Committee of the Council delivers its judgement, that judgement takes the form of ‘advice’ to the Queen. There is however, no question, of Her Majesty rejecting such advice or otherwise going her own way. It is expressed in that form essentially as a matter of constitutional politeness to the head of state,” Hamilton said in his judgement.