Law Society moves against Khama today
Oarabile Mosikare | Tuesday March 24, 2015 18:00
Senior attorney Omphemetse Motumise and the Law Society of Botswana (LSB) plan court action to challenge the refusal of President Ian Khama to appoint him as a judge.
The two parties will file papers at the High Court today to fight Khama’s decision to reject the recommendation of the Judicial Service Commission (JSC) that Motumise should join the bench.
Yesterday, LSB attorney, Tshiamo Rantao said the they also intend to file an urgent application to interdict the JSC’s recommendation for the appointment of an acting judge. After Khama declined to appoint Motumise to the High Court bench, the commission on Friday proposed the appointment of an acting judge.
The commission explained that the recommendation was based on the need to expedite the disposal of cases at “the High Court and the avoidance of an accumulation of cases”.
The JSC’s decision came ahead of a March 20 LSB deadline in which the society had sought undertakings from the commission and Khama that no alternative judge would be appointed. The society had said it would initiate urgent court action should the undertaking not be forthcoming.
Yesterday, Rantao said the society had decided to take the matter forward. “We are of the view that, whether acting or full time, any appointment would be in contravention of Section 96 (2) of the Constitution which makes it mandatory for the President to appoint in accordance with the advice of the JSC,” he said.
Rantao said they expected to file court papers today. Last week, LSB executive secretary, Tebogo Moipolai, wrote to members informing them that a statutory notice was served on all affected parties, concerning the planned action.
“In the meantime, JSC is required to undertake by noon on Friday 20th that it will not recommend another name to His Excellency [President Khama].
In the meantime, HE is required to undertake by noon on Friday 20th that he will not appoint anyone else as judge. If no undertaking is received from either two above, then an urgent application for an interdict will be launched,” Moipolai wrote.
On Friday, the JSC responded to the LSB stating that it had deliberated at length on the issue, and while it had resolved not to recommend any full time judge to Khama, it had recommended an acting judge.
The dispute between the parties arose after the LSB learnt that Khama had rejected the JSC’s recommendation of Motumise to join the High Court bench.
Motumise is a former chairperson of the LSB and a former Independent Electoral Commission (IEC) deputy chairperson. Four years ago, the LSB released a position paper on the appointment of judges, in which it said the JSC was best placed to know the best candidates.
“It is the reason their advice is sought. The President should act on that advice. He ‘must’ act on that advice i.e. he has no discretion and the framers of the Constitution did not want the President to have one lest it compromise the separation of his judicial-appointing role from his executive one. If the line becomes blurred, so does the separation of powers,” the LSB said.