Controversy surrounding the appointment of judges is set to be challenged before the courts of law if the president continues to appoint judges without the advice of the Judicial Service Commission (JSC).
A committee appointed by the Law Society of Botswana (LSB) to investigate the appointment of Judges has hinted at the possibility of challenging the issue before the courts following arguments that the president has the power not to appoint individuals recommended by JSC.
The LSB indicated that, as a body represented in the Judicial Service Commission, they set up the committee to look into the issue because they have direct interest in the appointment of judges.
According to the ad hoc Committee that comprised of Osego Garebamono, Bonolo Ramadi Dinokopila and other attorneys, the committee found that the Executive had immense power in the appointment of judges.
In their position paper, the committee argued that the executive had wielded more power though the constitution provides that the President should appoint judges in accordance with the advice of JSC.
The committee was worried that the JSC, as presently constituted, is weighed heavily in favour of the Executive.
The Committee noted that the President runs the show alone because he appoints the Chief Justice, President of the Court of Appeal (not being the Chief Justice or the most Senior Justice of the court of Appeal, Attorney General, Chairman of the Public Service Commission and another member who is not a legal practitioner).
The LSB noted that there is a problem with the current composition of the JSC, which is tasked with the responsibility of recommending judges to the bench.
The position of the BLS is that the JSC independence is questionable because it is clear that the president wields immense power in the appointment of the Commission.
The Committee further noted that though the constitution clearly spells that the JSC shall not be the subject to the direction or control of any other person in excising its function, the JSC as constituted reverses the idea.
It went further and noted that the hand of the Executive in the appointment process casts doubt on the ability of the JSC to act independently of the Executive.
According to the Committee’s findings, the present appointment process can therefore be criticized as not being entirely compatible with the demands of justice.
Attorney Osego Gabaremono and Bonolo Ramadi Dinokopila also noted that it was imperative that though the constitution held that the JSC would not be subject to the control of anybody, the composition of JSC defeated the powers given to JSC in the constitution.
They further stated that the constitution provides that commission may regulate its own procedure and there is no other legislation that regulates the activities of the JSC.
The committee also noted that the absence of legislation to regulate JSC could mean that the Executive, through the composition of JSC, is likely to have broad control over the proceedings of the JSC, its agenda, as well as issues that the commission discusses.
The attorneys also stated that in their findings that anomaly requires the Law Society to stir up the JSC to initiate the adoption and promulgation of the Judicial Service Commission Act.
The Committee stated that the JSC is best placed to know the best candidates for appointment, adding that it is the reason their advice is sought.
“He has no discretion and the framers of the constitution did not want the President to have one lest it compromises the separation of his judicial appointing role from his executive one,” said the LSB. “If the line becomes blurred so does the separation of powers.”
The LSB warned that any departure from the above should be challenged before the courts of law in the future.