Monday, December 6, 2021

UN quizzes  Botswana on independence of the judiciary

The United Nations Committee on Human Rights has brought Botswana’s judiciary into sharp focus as doubt continues to swirl over its independence. Recently the committee expressed concern after a Botswana delegation led by minister of Presidential Affairs, Kabo Morwaeng appeared before the UN committee in Geneva, Switzerland on 23 October.

The UN committee noted that there was a problem in the relations between the Presidency and the judiciary, namely the Court of the Appeal. Referring to the Law Society of Botswana and Motumise v. the President of Botswana and two others, the Committee Expert asked what happened following this decision.

The Expert also asked about the removal of four judges: Justice Dingake, Justice Busang, Justice Letsididi and Justice Gaarekwe  because they had prepared a critical petition. A problem with the judiciary personnel had also been observed, and the Expert asked whether sufficient people were employed.

Responding to the concerns raised by the United Nations expert, Botswana’s delegation said regarding the dismissal of four judges, there was no breach of freedom of expression or their independence. On the procedure of the selection of the judiciary and the prosecutors, the delegation said that they were recruited like other public officials. Relevant training was provided to all judiciary officials, but still improvements could be achieved.

In a detailed report that was filed with the UN office before Morwaeng and his delegation could appear before the committee, Botswana indicated that the appointment of judges is based on meritocracy. “Their appointment is based on a selection process by the Judicial Service Commission (JSC), with a recommendation to the President,” the report said.

It says the President is bound by the recommendation of the Judicial Service Commission. “The independence in the appointment of judges was tested in the Court of Appeal case of “Law Society of Botswana and Motumise v. The President of Botswana and Two others CACGB-031-16”, a case in which the President had declined the JSC’s recommendation to endorse Motumise whom it had recommended for appointment in accordance with Section 96 (2) of the Constitution,” the report says.

The Section provides 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.” The Court held that the President was not entitled to turn down the recommendation of the Judicial Service Commission as his role other than as set out above was to act in accordance with the Judicial Service Commission”. The President’s refusal to appoint Mr. Motumise as a judge of the High Court was accordingly set aside.

The report says Section 97 (2) (3) (4) of the Constitution provides that a judge of the high court may be removed from office only for inability to perform the functions of his or her office or for misbehavior. It says Removal of judges is by the President based on a recommendation by a tribunal comprising a chairperson and 2 other judges.

“Judges in Botswana enjoy security of tenure. Regarding the suspension of the four (4) judges it was based on the internal audit report on judges housing allowance which had found that the judges erroneously benefited from the Government housing allowance incentive. It was an administrative issue which the judges conceded to and subsequently the parties agreed to settle and the tribunal set up to investigate the matter dissolved,” reads the report in part.

It says provision of recusal of a judge and right to appeal against that judge’s decision are some of the mechanisms in place to ensure impartiality.

“Judicial staffing shortages have gradually been overcome. The Court of Appeal currently has a compliment of 9 Justices comprising of 6 Resident Justices and 3 Non Resident Justices. The High Court Divisions of Lobatse, Gaborone and Francistown have a compliment of 28 Judges and 15 Registrars while the Magistrates’ Court, on the other hand, has a compliment of eighty (80) Magistrates,” the report says.

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