All eyes will be on Botswana tomorrow (Monday) when the Law Society Botswana (LSB) will be asking the Court of Appeal to strip President Lt Gen Ian Khama of “his powers” to appoint High Court judges.
LSB has invited its international partners to observe the proceedings of an appeal it has lodged against President Khama’s appointment of judges.
This follows a 2015 application by the law society and prominent lawyer Omphemetse Motumise against President Ian Khama and the Judicial Service Commission (JSC) after the president turned down a JSC recommendation to appoint Motumise to the bench.
The law society submitted that the constitutional provision which deals with the appointment of judges requires the President to act in accordance with the advice of the JSC.
The exact interpretation of this provision, section 96(2) of the Constitution, is now before the Court of Appeal. In addition, the Court of Appeal has to determine whether the President’s decision to refuse to appoint Motumise is reviewable.
“The Law Society of Botswana submits that the President’s refusal to appoint Motumise is both unconstitutional and irrational. In addition, the Law Society seeks guidance from the Court on the procedures followed by the Judicial Service Commission during the appointment process.
The Law Society further submits that these procedures ought to be transparent, including that JSC interviews be held in public and that the outcome of the deliberations be made public.
In its February 2016 judgement, the High Court rejected the submissions of the law society hence the appeal. High Court Justice Walia ruled against Motumise’s application saying it was not brought in the public interest but to challenge his non-appointment.
Walia further ruled against an application for an order seeking to review and set aside the decision by President Khama not to appoint Motumise.