That would be Sunday Standard‘s response to public expression of gratitude by the Law Society of Botswana (LSB) for the paper’s role in its historic win at the Court of Appeal.
The story starts on April 19, 2015 when the paper published a story about excerpts of minutes of the 1966 Independence Conference in London between representatives of the British Colonial Office and a team of Batswana led by future founding president, Seretse Khama and his future vice president, Ketumile Masire. Initially, the draft constitution prescribed that the Judicial Services Commission would appoint puisne judges – the judges of the High Court other than the Chief Justice. However, when this constitution 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.” In integrating those two positions, the minutes say 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 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.”
Two years ago, the JSC recommended attorney Omphemetse Motumise for a vacant judge position but President Ian Khama thought and did otherwise. With LSB’s backing, Motumise challenged Khama’s decision at the High Court. The Independence Conference minutes story was conceived within this context and when it came out, it naturally caught the eye of Tshiamo Rantao, who was representing LSB in this matter. What to a lay person didn’t seem to say an awful lot did to him and a day later, he got in touch with Sunday Standard. The minutes had been sourced from a local source who had himself sourced them from the National Archives in London. As LSB began to build what it believed was a formidable case, Rantao and his team would go to London to peruse archival records. The High Court case had not gone well for the Society and it had taken it up with the Court of Appeal.
While essentially finding that the president has no powers to appoint judges, Justice Isaac Lesetedi, who wrote the opinion, rejected the relevance of this document. Conversely, Lords Hamilton and Abernethy put the document front and centre in their interpretation of the law. They concluded that the president’s role in the appointment of judges is not determinative but merely formal as de Winton proposed. Quoting a judgement handed down by the Supreme Court of Canada, Hamilton said that the understanding of a particular piece of law should be sought by reference to, among others, the “historical origins of the concepts enshrined.”
“Such background material is, in my view, an ‘accepted aid’ to interpretation within the meaning of Section 24(2) of Botswana Interpretation Act,” the judge noted, adding that history shows what Khama and Masire had in mind as regards the appointment of judges. “That included moving away from the executive government appointing the puisne judges to an arrangement under which such appointments would be made exclusively by the JSC. There was no dissent to the subject of that proposal.”
For his part, Abernethy said that it was of particular significance that the original proposal from the government of Bechuanaland at the Bechuanaland Independence Conference was that the puisne judges should be appointed by the JSC.
“The executive was to have no part in these appointments. That was entirely consistent with the concept of the separation of powers,” he added.
It was also “entirely understandable” given the place that puisne judges occupy in the constitution and the fact that in the United Kingdom and other Commonwealth countries, judges were then, and are now, usually appointed by the head of state.
“But in this the head of state is acting purely formally in the appointment process,” Abernethy wrote in his judgement. “In these circumstances, it was agreed by the Government of Bechuanaland that its original proposal should be changed accordingly. But in my view that change does not in itself, depart in any way from the original objective of the Government of Bechuanaland to exclude the president from the substantive power to appoint puisne judges. Nor is there before this court any indication from any other source to suggest that the Government of Bechuanaland wished to depart, or had departed, from that original objective.”
However, the relevance of the minutes was rejected by the two citizen judges on the panel: Justices Lesetedi and Monametsi Gaongalelwe. Lesetedi said there was no need for the court to travel back in time and “peer at the statements made by some of the participants in the meetings … without a full picture of the surrounding circumstances of those meetings and the final formulation of the constitution.” Gaongalelwe said that while it appeared that some delegates at the Conference alluded to the idea of the head of state making appointments by rubberstamping decisions of the JSC, “it is not clear whether the actual framers of the constitution acceded to the idea.”
Though generally understood to be a precise science, justice is in reality a numbers game. In passing, this explains why in the United States, Democrats are jittery about a reckless, possibly deranged president (Donald Trump) filling the Supreme Court with as many conservative judges as to stall the liberal agenda for decades to come. Here at home, appellate judges who said that the president doesn’t have powers to appoint puisne judges outnumbered those who found otherwise. And so Motumise and LSB won.
Part of LSB’s victory parade took the form of a press conference in Gaborone where Rantao told journalists about minutes of the Independence Conference having been instrumental in bolstering their case. He made clear the fact that the Sunday Standard story provided a hugely productive lead.
You are welcome.