High Court demands disclosure of records in former AG appointment
Mpho Mokwape | Monday June 29, 2026 06:00
The order, issued on June 12, 2026, by a panel of two judges comprising Justice Dr. Onkemetse Tshosa and Justice Onkagetse Pusoentsi, requires the respondents to file the record of proceedings relating to the appointment or provide reasons why they are unable to do so.
“The respondents shall produce and file a record of proceedings or reasons why they cannot produce same within 14 court days from the date of this order,” the judges directed.
The matter pits the LSB against the JSC as the first respondent, the Attorney General of Botswana as the second respondent, the President of the Republic of Botswana, Duma Boko as the third respondent, and Mmako Abram as the fourth respondent and centres on the secrecy of appointments of judicial officers by the JSC. In the order, the judges further ordered that the application would continue in accordance with the rules of court once the records had been filed.
The Society has previously expressed concern about judicial appointments it believes were not made through a transparent, publicly advertised process.
The organisation has argued that public confidence in the judiciary depends not only on the independence of judges but also on the openness and fairness of the appointment system. According to the society's previous statements, judicial vacancies should generally be advertised so that qualified candidates can apply and be assessed through a transparent process.
The dispute surrounding Abram’s appointment dates back to late 2025, when the LSB indicated that it intended to challenge the appointment in court, alleging that it had been made without a public advertisement of a vacancy and without the usual application process.
The society also argued that this departed from long-standing practice in judicial appointments and believed that allowing the appointment to proceed would risk creating a situation in which the judiciary operates outside the limits set by the law. It argues that this could undermine the public's confidence in the legal system.
The Society in its court documents says that the recent appointment goes beyond this authorised number, and it believes that this makes the appointment unlawful because it contravenes the clear limits written into the statute. LSB further argued that no applications were invited and that no open process took place; as a result, the Society believes the process contradicted established constitutional principles and long-standing practice in Botswana.
The Law Society notes that it has adopted and published position papers in 2011 and 2023 calling for transparent, advertised, merit-based procedures for appointing judges. The papers, according to the Society, were meant to help ensure that judicial appointments are handled in a manner that matches the requirements of a constitutional democracy.
Furthermore, the Society believes that the events surrounding the recent appointment show that these principles were not followed, as the absence of an open process raises serious questions about fairness, transparency, and compliance with the Constitution. By filing the review, the Law Society seeks a determination from the court on whether the Judicial Service Commission acted within the law.
It also wants the court to consider whether the Commission followed proper procedure and whether the decision can stand in light of the statutory limits on the number of High Court judges.“We believe that only a court can provide a clear, lawful, and authoritative answer to these questions,” noted LSB.
The Law Society emphasises that its actions are driven by its duty to uphold constitutionalism, judicial independence, and the rule of law, saying that the strength of the judiciary depends on public trust, and public trust depends on clear, lawful, and open processes.
The Society argues that judicial appointments are of great importance in any constitutional democracy because judges play a central role in interpreting the law and protecting rights; accordingly, the Society believes that the appointment process must always meet the highest standards.
The Law Society says the problems it has highlighted are not new, as it has raised concerns for more than a decade about the absence of a published JSC procedure and the continued use of opaque methods for appointing judicial officers. “The latest events have only confirmed these long-standing fears. The only way to address the issue properly now is to ask the court to intervene,” said LSB. The Society states that it remains unwavering in its commitment to upholding the rule of law and that its decision to go to court is intended to protect not only the current situation but also future judicial appointments.
In conclusion, the Society says it would like to ensure that all appointments are conducted openly and lawfully, with full respect for constitutional standards, and hopes that by taking these steps, the issues that have troubled the appointment process for so many years will finally be resolved in a clear and lawful way.
JSC, on the other hand, has maintained that judicial appointments are made within the framework of the Constitution and existing laws. The respondents are expected to set out their position in greater detail once the record of proceedings is filed before the court. A status hearing has been scheduled for October 6, 2026, when the court is expected to review progress in the matter and determine the next steps.