The appointment of judges in Botswana has been a topical issue in the legal fraternity in particular and society in general. And it appears the topic is not by any stretch of the imagination set to end anytime soon. While the appointment of judges of the High Court is to some extent clearer with respect to the processes and procedures thereof, it is not the case with those of the Court of Appeal (COA). It has not been convincingly explained beyond the argument that COA judges are appointed pursuant to Section 100 (2) of the Constitution on Appointment of judges of Court of Appeal. It has become familiar that positions of appointment of High Court judges are advertised for those who feel worthy to apply to do so. To the best of my recollection and unless and until a contrary version is proffered, no advertisements for positions of COA judges have been forthcoming. In this respect, the ‘secretive’ appointment of the judges flows from the manner they are appointed. I therefore hold the view that the secrecy is bound to be an affront to the Rule of Law. This view will be explained later in this article.
Section 96 (2) of the Constitution of Botswana on Appointment of judges of High Court states that ‘The other judges of the High Court shall be appointed by the President acting in accordance with the advice of the Judicial Service Commission’ while Section 100 (2) of the same Constitution on the Appointment of judges of Court of Appeal states that ‘The Justices of Appeal, if any, shall be appointed by the President acting in accordance with the advice of the Judicial Service Commission.’ (My emphasis). It will be noticed in the two provisions that the appointment of the two sets of judges is pretty much the same but with the exception that the latter group’s is shrouded in some secrecy of some sort. The question of appointment of COA judges was brought to parliament last week Friday by the Member of Parliament for Selebi-Phikwe West Hon Dithapelo Keorapetse. Hon Dumezweni Mthimkhulu who is the Member of Parliament for Gaborone South and the Assistant Minister for Presidential Affairs, Governance and Public Administration was at pains in providing the answer in that he could not state with the greatest of certainty and/or clarity the actual processes and procedures of appointing COA judges.
Given that the Judicial Service Commission is at the centre of interviewing and recommending names for appointment to the President, it is not clearly stated why the same does not obtain in cases of COA judges. This is the elephant in the room which if not dealt with immediately, will cause the COA to be viewed in bad light. Hon Mthimkhulu was correct in stating the obvious provision of Section 100 (2) but was equally unconvincing in not lifting the lid over the secretive nature of COA judges nor why this still obtains. He seemed to suggest if I heard him correctly that the existing law governing the appointment of COA judges should be amended if ‘transparency’ similar to that which obtains for High Court judges is to be attained. I beg to differ because such appointments are based on the ‘….The President acting in accordance with the advice of the Judicial Service Commission.’ The argument of Hon Mthimkhulu seems to be anchored on the COA judgement with respect to Justice Motumise’s matter where the COA was simply reiterating on what ‘….in accordance with….’ means. Sections 96 (2) and 100 (2) in so far as the appointments of High Court and COA judges are the same save for designations only. With the greatest of respect, Hon Mthimkhulu was skirting around the core issue more than anything else. I am therefore not yet persuaded that Hon Keorapetse’s question has been adequately answered.
Consequent to the inadequate answer referred to above and in my view, a perception is likely to be created that particular judges could be earmarked to be appointed to the COA. Also, a perception which is in the minds of some could further be reinforced that such judges could consequent to such blurred appointments, be executive minded in one respect or the other. The independence of the judiciary in general is under scrutiny and it is in its own interests and those of the society that any real or imagined perception whatever it could be, is removed such that public confidence is achieved and maintained. When appointments are secretive as they appear to be the case with respect to COA judges, it inevitably raises the question of the Rule of Law. This could ably be answered by Alistair Price of the Law Faculty of the University of Cape Town in his 2012 paper titled ‘Why the Rule of Law Matters’ when he says about the Rule of Law that ‘….It requires that our society be ruled by law, and not by the arbitrary (often self-interested) decisions of the small group of men and women who happen to wield public and private power at any given point in time….’ While it could be argued and justifiably so that there is the Rule of Law in Botswana, it could be argued justifiably as well that the question of appointment of COA judges in the present circumstances could in some respects, render it wanting in some respects.
In this day and age where political footprints are all over public institutions, it is possible if not a given, that the Rule of Law could be compromised or circumvented. Politicisation of the appointment of judges has become a headache for many countries and Botswana is no exception. Executive minded judges become handy for example in highly political cases where self-interest and the pay-back time for such judges become demonstrable. In these circumstances, the Rule of Law is permanently thrown out of the window at the expense of larger society. It will be grossly unfair however to suggest that all judges, whether at the High Court or COA, should be painted with the same brush in the name of perceptions. I say this with the greatest of humility and respect. It should in the same vein be suggested that some of them could be gripped by the saying that you don’t bite the same hand that feeds you. One sitting judge has publicly said that he is easily influenced by mob thinking and further that he is grateful to the appointing authority for having appointing him a judge from nowhere. This is frightening from a judge and I wonder why the Judicial Service Commission has not disciplined him. Such a judge doesn’t deserve the honour and privilege of being a judge. There could be some with the same thinking who may not have publicly said so. The end result is the same and it is executive mindedness.
Time is opportune probably more than ever before to lift the black cloud covering the appointment of COA judges to open competition to everyone as is the case with High Court judges. The Judicial Service Commission must as a matter of urgency be reformed by drastically reducing the number of political appointees who serve in it. As it is currently constituted, the Commission is as good as a government department whose actors serve at the pleasure of the appointing authority. Not that such actors are not worth the salt but that they are likely to be perceived to be beholden to their appointing authority given the ‘secret’ nature of their appointments. The office of a COA judge is a serious public office which carries huge public power. Undeserving individuals are more likely to abuse this public power. I still do not understand why appointment to such office is still a seriously guarded secret in the present day Botswana. I am prepared to be persuaded otherwise as always. Judge for Yourself!
Covid-19 pandemic is still our immediate challenge and threat. Let us all be reminded to comply with the health protocols of washing or sanitising our hands frequently, social distancing and wearing of masks.