Botswana tax payers will pick the bill arising from President Lt Gen Ian Khama’s decision to dilly-dally in appointing veteran lawyer Omphemetse Motumise to the High Court bench.
The president has not defended his decision which was deemed irrational and unlawful and instead opted for a costly out of court settlement.
While Khama has effectively conceded that there was no legally valid reason for him not to appoint Motumise following an order by the Court of Appeal, tax payers are the biggest losers as they have to pay the legal cost arising from the president’s Constitutional misbehavior.
According to a consent order signed by President Khama and Motumise’s lawyers, the former has agreed to pay the legal costs incurred in the application that sought to compel him to implement the Court of Appeal order.
The consent order states that “The First Respondent (President Khama shall pay the costs of this application, which costs shall be agreed or taxed.”
Motumise and Khama lawyers also agreed that the application that sought to compel him to implement the Court of Appeal order should be withdrawn forthwith.
“This application is withdrawn with leave of this court,” the consent order which was issued by Acting High Court Justice Godfrey Radijeng states in part.
The consent order was signed by Deputy Attorney General Morulaganye Chamme on behalf of President Khama while Tshiamo Rantao of Rantao and Kewagamang Attorneys represented the Law Society of Botswana (LSB).
LSB’s Tebogo Moipolai had argued in his court papers that the president’s decision was “arbitrary, irrational, contrary to the requirements of the principle of legality, unconstitutional, unlawful and invalid. I humbly submit that the President’s refusal to appoint Mr Motumise having been set aside, the President was bound by the judgement of the Court of Appeal and in terms of section 96 (2) of the Constitution, to appoint Mr Motumise.”
In 2015 the Judicial Service Commission (JSC) “advised” President Khama to appoint Motumise in accordance with Section 96 (2) of the Constitution of Botswana. But the President declined to act in accordance with the “advice” and litigation ensued at the High Court on 25th May 2015.
This litigation against the JSC and President Khama brought by the Law Society of Botswana (LSB) and Motumise, culminated, on 19th April 2017, in the reviewing and setting aside of the President’s refusal to appoint Motumise by the Court of Appeal.
The LSB and Motumise on the 4th October 2017 filed an application to compel the President to comply with the order to appoint Motumise as a Judge of the High Court of Botswana which he eventually did on 17th October.
Commenting on the appointment, LSB said it was “particularly pleased to confirm that Mr. Motumise has today, Tuesday 17th October 2017, been appointed to the Bench. Mr. Motumise’s appointment is with effect from 1st January 2018.”
The Law Society of Botswana acknowledged with gratitude the support that it has received in prosecuting this matter since 2015.
“In this regard, it notes the members of the LSB, the legal team who worked on the matter on a pro bono basis (including Senior Counsel), the Southern African Litigation Centre (SALC), Civil Society and the public in general. Today should be the end of a chapter which started way back in 2010 with the drafting of the Law Society of Botswana Position Paper on Appointment of Judges,” the society said in a statement.
