Thursday, October 28, 2021

The Constitution vs. President Khama

President Lt Gen Ian Khama is being accused of breaching the Constitution by refusing to respond to letters from lawyers representing veteran attorney Omphemetse Motumise who are seeking an order that he be appointed to the bench forthwith.

Presidents Ian Khama has taken an oath of office to protect and defend the Constitutions and by extension respect and promoting the Rule of Law.

Court records show that President Khama has refused to respond to several letters from Motumise’s lawyers which sought to establish when he would be appointed. This is despite a recent assurance by Minister of Justice, Defence and Security, Shaw Kgathi that the President would comply with a Court of Appeal order to appoint Motumise as High Court judge.

As the struggle between President Khama who seems determined not to bow to external pressure and Motumise’s lawyers determined to ensure that he complies with the court order escalates, the country is watching with bated breath to see if the president will defy an order by the Court of Appeal.

Motumise’s lawyers have approached the High Court seeking an order that President Khama should explain why he cannot respond to their letters or refuse to appoint their client.

The Law Society of Botswana (LSB) which is representing Motumise argues that there was no legal valid reason for Khama not to appoint their client following the order by the Court of Appeal.

LSB Executive Secretary Tebogo Moipolai states in his founding affidavit that despite being invited to appoint Motumise, President Khama has elected not to give reasons at all for not appointing their client.

“This renders his decision 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,” said Moipolai.

If sound grounds for objecting to the appointment of Motumise existed before the JSC made its (initial) recommendation, President Khama should have raised them with the JSC at the time and was not entitled to raise them the first time after the judgment by the Court of Appeal.

“Alternatively , even if (after the judgement of the Court of Appeal) it remained open to the President not to appoint Mr Motumise, if there was a legally valid reason for this (which I dispute), no such reason exists,” Moipolai further agued.

He added the JSC has not even taken a decision to alter its advice that Motumise should be appointed further stating that it has also not taken a decision that a valid reason exists for not appointing Motumise.

“I therefore submit that the President’s failure to appoint Mr Motumise is in breach of constitutional duty , in terms of sections 96(2) of the Constitution, to appoint him, that is in my any event in breach of the order made by the Court of Appeal…” said Moipolai.

Though the Court of Appeal had delivered its judgement on 17 April 2017, the President had taken no steps to appoint Motumise by 16 May 2017.

On the later date, therefore, his attorneys wrote a letter to the President requesting that Motumise be appointed within seven days of receipt of the letter.

 “The President did not respond to the aforesaid letter of 16 May 2017. Again, on 6th July 2017, the Applicant’s attorneys wrote another letter to inform whether they might shortly expect Mr Motumise’s appointment and if when this might be expected,” said Moipolai. Still there was not response from President Khama.  He said on 6th July Motumise’s lawyers also wrote to the JSC.

“On 28 August the Secretary to the JSC wrote a letter to the Applicants’ attorneys, which letter was only received on 13 September. In his letter, he advised that the issue of the appointment of Mr Motumise (instead of being discussed at the JSC meeting of 18 August) was not deferred at the request of the Attorney General, since he had just assumed office and had to take instructions, nor had he studied the Court of Appeal judgements,” said Moipolai.

He said following an announcement by Kgathi that President Khama would appoint Motumise; his attorneys wrote a letter to the President that they were ready to file and serve High Court papers for an order directing that the President appoints Motumise within a stipulated period. Motumise’s lawyers were instructed not to proceed to file and serve in view of Kgathi’s announcement whose implication was that Khama had finally resolved the matter.

“However since the announcement, Mr Motumise continues to suffer immense prejudice because there was no indication when he would appoint him. His clients and staff continue to ask him what the way forward was, but he was unable to give them a proper answer or make any plans since he had no idea when he would be appointed,” said Moipolai. 

President Khama seems intent on proving his critics right, that he does not respect the rule of law. A committee member of the United Nations Research Institute for Social Development committee (UNRISD) Dr Onalenna Selolwane has in the past  has said Batswana have long expressed concern over the possibility that President Ian Khama as head of state would not respect the rule of law.

The UNRISD committee member, who is a former University of Botswana lecturer, said that a person who does not respect the rule of law should not be a president.

She said former President Festus Mogae was right to voice what others have been concerned about, without saying it out publicly, that Botswana has veered a little bit off the rail in terms of lack of respect for the rule of law from the highest office.

Selolwane’s comments came in the wake of Mogae’s castigation of Khama’s administration for not respecting the rule of law at the just-ended African Leadership Forum in Tanzania.

She stated that Khama could not be blamed for lack of respect for the rule of law because he is from a military background, adding that she was one of the people who expressed disquiet in 1998 on whether Khama would respect the rule of law, but that was seen as opposition views.

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