In an exclusive interview, retired High Court judge Abednego Tafa has bitterly complained how he and other senior judges such as Justice Isaac Lesetedi of the Court of Appeal were overlooked when President Mokgweetsi Masisi appointed the current Chief Justice following the retirement of justice Maruping Dibotelo.
“Well yes, I was a senior judge but you know the position of chief justice…The chief justice is appointed by the President and the Constitution does not say that the President has to look at the most senior judges,” said Tafa.
“Of course, there was that expectation that I might be one of those to be considered. But you know the world over, the President has the prerogative of choosing who they want to be their chief justice,” said the former judge.
Tafa noted: “To be honest, the President has to feel comfortable with his subordinates. Not that they would be favoured but they should feel comfortable. I don’t know what the President knows about me or hears about me. I thought I was one of those who were in the run up.”
Asked if he had legitimate expectation, Tafa said: “I wouldn’t say so because it doesn’t necessarily follow that you are the next senior in the appointment…and for your information there is Justice Lesetedi who was ahead of me.”
He added: “Of all other judges of the Court of Appeal, Justice Gaongalelwe were ahead of me, there was Justice Makhwade who was ahead of me, well the fact that I was Justice President in Lobatse does not necessarily mean that I would be appointed.”
Tafa said the reason people focus on me is because in the absence of the chief justice “I was the acting chief justice.”
He also observed: “If it was on the basis of seniority at the High Court, Tafa said, “I was the most senior but I want to assure you that seniority is not the basis of appointment.”
“When the first Motswana Chief Justice Moleleki Mokama passed on, Nganunu was appointed. He was the most senior Motswana judge at the time but there was another judge who was competent other than judges who were actually foreign nationals) …”
When it was also suggested that the appointing authority at the time could have considered localization as one of the considerations, Tafa agreed.
Tafa said: “When Justice Nganunu retired, Justice Dibotelo, who was the most senior, was appointed. I don’t know what other considerations they are looking at but to be honest with you I don’t know what other qualities the President looks for but certainly it is not seniority and performance.”
There could be other indicators, he said. Tafa also noted that it is a political appointment. “It is that one (appointment of chief justice) and the one of the President of the Court of Appeal. The Judicial Service Commission (JSC) does not make any recommendation or whatsoever. They are not involved.”
“If it were the JSC, I would say they should look at seniority and performance. But for the president, to be honest with you, I don’t know what they are looking for.”
Tafa said he didn’t spend sleepless nights when it was announced that justice Terrence Rannowane is the Chief Justice. “I just said, well that is the President’s prerogative, I actually went to him and said congratulations, that was it. I continued working under him.”
Tafa said; “I’m actually on record as having said to some politicians that I know you might be feeling disappointed but you don’t have my mandate to speak on my behalf.”
He said: “To be honest with you, I don’t like controversy, I accept my fate very easily.”
Tafa cited the South African case as “a better system” where candidates for judicial appointments undergo interviews which are held in public.
He said in South Africa, Justice Dikgang Moseneke was overlooked twice for the position of chief justice. He was the deputy chief justice. When the first in command retired, they brought in somebody else. Moseneke was expected to succeed former chief justice Pius Langa. But Sandile Ngcobo was appointed. When he was also expected to succeed Ngcobo, Moseneke was overlooked as Mogoeng Mogoeng was appointed chief justice.
Tafa observed that: “There are other considerations and I don’t know what these are.” Tafa conceded that the process of appointing judges in Botswana is secretive.
Asked how the judiciary could be reshaped, Tafa said these days in Botswana, “there is so much malice on social media even if you might say well let them be interviewed in the public there might still be people who peddle malicious allegations about somebody.”
“I don’t know which one is the best system but there is need to be some level of transparency. There has to be something. That is why some people will be complaining that they have been left behind when they should have been there. He also touched on what he described as “the element of being vetted by the security agency.” “So, you will never know, I probably… never know what they say about me. So sometimes I blame the President… But the President is acting on advice. So, you will never know…and you know sometimes this security agency is that you will never be asked to say your side of the story if they say something about you…,” said Tafa.
