The recent short listing of lawyers for appointment to the bench as High Court judges by the Judicial service Commission (JSC) is mired in controversy as information leaking out of the process is tainted with irregularities, making it not credible as personal considerations appear to have overrode a clinical screening exercise.
Information gathered by this publication indicates that had the process been credible, there is no how leading lawyers like one University of Botswana senior law lecturer and some acting judges could have been outrightly rejected without even being called for preliminary interviews.
The JSC sitting is understood to have taken place towards the end of last month a few days before former Chief Justice Maruping Dibotelo retired. He was subsequently succeeded by Justice Terrence Rannowane who took office on May 1.
Because of past personal clashes with certain members of the JSC, those outstanding lawyers who had applied were never considered for invitation for preliminary interviews.
Another lawyer is understood to have been rejected on health grounds, an issue that has not gone down well with a number of lawyers who feel that the JSC decision was discriminatory, unconstitutional and unjust.
It is also understood that some outstanding lawyers were overlooked because they had in past clashed with some members of JSC who were so bitter that they prevailed on their colleagues to reject them outright in what has been viewed as vengeful acts.
Contacted for comment, Law Society of Botswana (LSB) chairperson Kgalalelo Monthe said his society is not aware of any improprieties regarding the search for prospective judges at the last JSC sitting.
Monthe said the society wants to work with the Administration of Justice (AOJ) harmoniously. In his view, if there are any burning issues, his society will always be prepared to engage the JSC chairman to map the way forward and hopes that the new Chief Justice will in turn reciprocate as the chairperson of the JSC.
“We don’t believe there is anything that cannot be solved by professional dialoguing on pertinent and topical legal issues. This is why our society is always ready and willing to engage to sort out whatever emerging issues so as to instill public confidence and trust in the judiciary. It will honestly be a sad day for the LSB if the public continues to lose confidence in administration justice”, said Monthe.
His view is that to solve the current impasse surrounding appointment of judges, a process has to be expeditiously instituted entailing an open and transparent exercise including public hearing for shortlisted applicants.
“The public hearings will erase all doubts that the appointees have been somewhat favoured. The public will have an opportunity to attend the proceedings and gauge the process for themselves. The current secrecy breeds suspicion that some lawyers who do not meet the selection criteria are being favoured over capable candidates”, said Monthe buttressing that as the LSB they intend to take the matter up with the new Chief Justice who doubles as the JSC chairperson.
The other issue that worries Monthe is that in case of adverse findings against applicants, they must be called for a hearing. The adverse finding should encompass everything across the board, be it health or any other issues that may render an applicant unfit to hold office of judge.
“I believe some applicants will be able to proffer mitigating factors against the adverse findings before a final decision is made on whether they are fit to hold the office of judge or not. As a way forward all stakeholders should be involved to assist in formulating a proper credible process that will not be tainted with any improprieties. It is definitely worrying if there is any information coming out that some deserving applicants were unduly disadvantaged without having been afforded an opportunity to mitigate against whatever adverse findings the JSC might have had against them”, said the LSB chair.
According to a news report In Mmegi newspaper there are four High Court judge vacancies to be filled.
The shortlisted lawyers for appointment include Deputy Director of Public Prosecutions Kabo Leinaeng, Susan Mangori and Kentse Molome.
Others are Christopher Gabanagae, Tshegofatso Mogomotsi, private attorney Gabriel Komboni and Oteng Motlhala. As for Komboni, this is not the first time he has raised his hand seeking to be appointed judge as he was rejected by former President Ian Khama despite a recommendation by the JSC in the past.
Also making the list also is acting judge Jennifer Dube.
Attempts to solicit a comment from Master and Registrar of the High Court Michael Motlhabi who also doubles as JSC secretary drew a blank as he was said to be engaged in endless meetings at the time of going to press.