The appointment of judges to the High Court of Botswana and above has come into the limelight recently and the importance of these posts calls for comment. Judges of the High Court and above play a highly important role in constitutional democracies as courts are emerging as a forum for policy debate due in large part to their powers to interpret important constitutional documents. In addition the appointment process is an imperative part of ensuring judicial independence and, therefore, justice. There are several models that emerge. Four principles underpin, to different degrees, different judicial appointment models: Accountability, Transparency, Competence, and Representativeness. This is the thread that runs through the different ways of appointing judges.
Accountability is to the public, that is, some models place a premium on political accountability in the appointments of High Court judges and above.
Transparency is in terms of the openness of the process and competence involves merit, legal credentials and experience. Representativeness assures representation of all individuals from all backgrounds including social origins and gender. The manner and form of provisions of the Constitution of Botswana prescribe the process for the appointment of judges. The wording of the Constitution is indicative of the President’s powers of appointment. Close attention must be paid to the wording.
It is important to note that the President is given these powers as the Head of the Executive branch of government. The Chief Justice for example “shall be appointed by the President” according to s96 (1).This peremptory language indicates that this appointment is the President’s prerogative.
However, in terms of the appointment of other judges of the High Court, “they shall be appointed by the President, acting in accordance with the advice of the Judicial Services Commission” according to s96 (2).This is a strong provision in so far as it states that the President can only appoint a judge based on the advice of the JSC. The President has the discretion to appoint a judge from the candidates the JSC advises him to.
His job is not merely a ceremonious one of announcing whom the JSC prefers. His job is to appoint using the advice of the JSC, using only candidates on the list presented by the JSC. Even when the JSC gives a list of candidates in order of merit, it is the decision of the President that suffices as the Constitution gives him the power to decide.
This is so as the shortlisted candidates are meant to all be appointable. The President when the list contains 5 candidates in order of merit may choose candidate 2, 4 and 5 for example. He legitimately does so as he is exercising his executive powers as per the Constitution. In the past the Constitutional custom appeared to be that the President was presented with the same number of shortlisted candidates as there were vacancies.
Even when the President made those appointments, even without question, it was his prerogative to do so. If the President is not satisfied with the candidates forwarded to him, he has the constitutional right to express this.
This is so because the advice of the JSC is not binding, in that, in the end he still has to make an executive appointment. If the advice of the JSC was binding then the President’s role would merely be to put a rubberstamp on the appointments.
Botswana is unlike Ireland where the advice that the President receives (which is from Cabinet) is binding. The act of appointing judges by the President is merely a formality. Calls have been made for a more open and competitive process. Previously, during the first and second presidency appointments were private transactions including by invitation only.
It seems that during the final days of the Mogae presidency the appointment process became open and competitive. Lately, under Ian Khama it seems the open and competitive nature of the appointments process has become routinised.
Available evidence suggests that Chief Justice Maruping Dibotelo is committed to openness and competition. Thus the process is becoming more transparent and the open and competitive process should reinforce competence and merit. A comparative analysis of the appointment process of different countries shows that there are as many methods as there are democracies. Botswana, South Africa and the UK in different ways have a hybrid model where an independent committee/commission screens and recommends candidates followed by and in conjunction with an executive appointment.
Botswana’s process is very similar to that of South Africa, however, the administrative component and screening process of candidates is set out in the South African Constitution in detail unlike in our case. For example the Constitution states that for every vacancy three candidates need to be presented to the President and it also states the composition of the JSC.
To further indicate that this model gives the President the power to decide, the Constitution states that if the President is not satisfied with the candidates proposed, as he can be since it is ultimately he who decides, the JSC must supplement that list.
In the United Kingdom the Lord Chancellor (Minister of Justice) also has the prerogative to decide which candidates will be on the list even after the Judicial Appointments Committee (JAC) gives a list of its preferred candidates. It is a 3 stage process before the recommendation can be binding on the Chancellor.
The JAC selects candidates and the Chancellor may accept the selection, reject it or require the JAC to reconsider, but he must give written reasons if he responds negatively to the candidates presented to him.
If he rejects the candidates, the JAC must select a different candidate(s).If the Chancellor asks the JAC to reconsider the candidates the JAC can select the same person. The Chancellor then recommends to the Prime Minister his preferred candidate who normally follows his advice.
Thus the UK is even a permutation of this model. The UK and South Africa’s appointment process is set out in detail in the Constitution. The Botswana Constitution does not do so. Specifically, the Constitution does not require the President to provide reasons for declining to appoint all or any candidates submitted to him by the JSC. In some countries, the appointment of judges is purely an executive decision with no requirements for consultation. This model is followed in countries such as Ireland, Canada, Singapore and Australia. In Canada it is the Prime minister who chooses the candidates as opposed to Cabinet as in Ireland.
In Australia, judicial appointments are made solely by the executive on the advice of the Attorney General and without any screening process via an advisory board or committee. There is an informal consultation process conducted by the Attorney General before making federal judicial appointments.
This generally includes consultation with the federal judiciary and the legal profession but this is at the discretion of the Attorney General. The appointment of judges in this model is done at executive level in one form or another. In other countries the appointment of judges is elective and thus through the ballot box. Some of the democracies that adhere to this model are Japan and the United States of America (U.S.). The appointment of judges in Japan is an executive appointment which is subject to a ‘people’s review’ by the electorate in the next general election, however, the initial executive appointment is made by Cabinet.
In the U.S. at federal level the Judges of the Supreme Court are nominated by the President and confirmed with the “advice and consent” of the Senate according to Article 2 of the U.S. Constitution. However, the Senate Judiciary Committee conducts public hearings and interviews on whether the nomination should go to the full senate. At state level however, judges can be elected by the citizenry.
Some states use the merit/Missouri method of appointment where the Governor appoints a judge from the advice of a nominating panel. Thus even this model comes in permutations. In some countries, the appointment process is weighted in favour of the Judiciary. In this process, there is substantive consultation with the judiciary where their advice holds great weight. Some of the countries that use this model include Sweden, Denmark and India. However, there are slight variations in application.
In Sweden, the most senior members of the judiciary prepare a list of candidates after consultation amongst themselves. This list is then presented to the Minister of Justice.
When the Minister has his own preferred candidate(s) there will be an oral exchange of views between him and the senior members in order to come to agreement. In India, judges are appointed by the President, on advice from the Chief Justice and other senior judges. In India there is no independent advisory committee. Mauritius is an example of the fact that even in one country there can be many models that are used depending on the level of judicial appointment. The higher the judicial post, the more exclusive and in the hands of the executive the decision is.
According to the Mauritian Constitution the Chief Justice as the most senior judge is appointed by the President after consultation with the Prime Minister. This is an example of the purely executive model of appointment. In Botswana, the appointment of the Chief Justice is the sole discretion of the President; he does not even have to consult with the Minister of Justice.
However, for other judges they are appointed by the President upon the advice of the Judicial Services Commission. It is clear that there is no consensus in both so-called mature democracies and newer democracies as in Singapore, South Africa and Botswana. Each democracy chooses a different model to fit its context. The comparative analysis of the process of the appointment of judges in other countries shows that there are many combinations and permutations of models from country to country and even at state and provincial level.
One system of a country does not make another country’s system necessarily wanting. The systems and processes of appointment of judges change from one democracy to another.
Thus in terms of the reported danger(s) to the democracy and good governance of Botswana generally and judiciary specifically, the empirical evidence is less than apparent.
*Peter Takirambudde is a Professor of Law, University of Botswana & Project Leader, African Human Rights Consortium. In the period 1996-2009, Peter Takirambudde was Executive Director for Africa at Human Rights Watch in New York
