A High Court judge has revealed that the salaries of the Court of Appeal bench and the Chief Justice were secretly and unlawfully increased between 2018 and 2020 and that the same favour was not extended to High Court judges.
This revelation is made by Justice Tshepo Motswagole in set of legal papers that portend a marathon court case in not too long. The remuneration issue straddles two administrations – that of former president Ian Khama and of President Mokgweetsi Masisi. The change of guard happened in April 2018 after the former had served out his presidential term and handed over the latter.
Under Khama, the Judges (Miscellaneous Provisions) Act was amended to provide for the remuneration of a full-time citizen CoA President and citizen judges of that same court.
“This development pushed the salaries of the Justices of Appeal and the President of the Court of Appeal way up and disproportionately in relation to the remuneration of Judges of the High Court, who are also members of the Court of Appeal,” says a Notice of Intention to Sue that Monthe Marumo & Co. have served upon the state.
The latter relates to a practice in terms of which High Court judges are often appointed to serve as CoA judges as and when need arises but return to the High Court when such task is complete.
Motswagole says that “there were further selective and secretive increases between 2018 and 2020 extended only to the Chief Justice, the CoA President and other Justices of Appeal “at the exclusion” of High Court judges.
“This has resulted in a huge pay disparity with the Judges of the High Court who, by virtue of Section 99(1) of the constitution, are Judges of the Court of Appeal,” says the Monthe Marumo & Co. Notice of Intention to Sue, adding that there is no legal basis to pay judges differently. “The latter are accordingly entitled to be paid the same salary and benefits as the citizen Justices of Appeal and this is especially so given the fact that the constitution … prescribes more or less the same qualifications for the two superior courts of Botswana.”
Motswagole is demanding that President Masisi should “immediately” stop the practice of negotiations of remuneration and terms of office for judicial officers directly between the executive and members of the judiciary.” Further to that, he wants the president to establish (within five months) an independent multi-disciplinary statutory body made up of members with expertise in law, economic, accounting, management and research or other appropriate profession that shall determine the appropriate remuneration and conditions of service for judges. Such body shall consult members of the public, the judiciary itself, the Law Society of Botswana or any other relevant institution be it local or international. After such consultation, the body shall get comment of the executive and make its recommendations to parliament through the Minister of Justice.
