Khama questions top lawyer�s security credentials
Oarabile Mosikare | Friday July 31, 2015 15:31
Khama declined to appoint Motumise to become a judge and instead Zane Kebonang was made acting judge in his place following the Law Society of Botswana (LSB) and Motumise challenging the President’s act. Subsequent to Khama rejecting the recommendation of the Judicial Service Commission recommendation to appoint the veteran lawyer to the bench, LSB and Motumise filed papers in court to challenge the President’s decision.
Khama is the first respondent in this case while the Attorney General is the third respondent.
Khama has now disclosed the reasons he declined the candidature of Motumise to the bench in an affidavit signed on July 29 and filed at the court.
“First, in appointing judges, I take into account a broad range of material considerations, including matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary, and questions of policy,” writes Khama.
He said: “All these involve information to which the JSC does not necessarily have access to and which the JSC would, in the normal exercise of its functions, not be properly equipped or mandated to evaluate and as such, demonstrate that my power to appoint judges is not a bureaucratic administration function, but rather an executive power that does not fall to be reviewed by a court. This aspect will be addressed more fully in argument at the hearing of this matter.”
The President also said there are circumstances where he would be constrained not to appoint a recommended candidate, where the reasons for doing so, would not adversely reflect upon the integrity, character and reputation of the particular candidate.
“However, there will in the nature of things, from time to time, also be occasions where it would be inappropriate to appoint a nominee, where the reasons for doing so, will adversely reflect upon the integrity, character and reputation of the relevant nominee.
“It would be inappropriate for me under such circumstances to disclose the reasons for not appointing the candidate concerned, as such disclosure would be prejudicial to that person.
“The withholding of reasons in such circumstances will be in the interests of the candidate. In these circumstances, questions of transparency are outweighed by the protection of the privacy of individual candidates.
“If am obliged, as a matter of principle, to disclose the reasons for not appointing a candidate, in all circumstances, this will lead to my having to disclose reasons which, in some cases, will impair the character, integrity and reputation of certain candidates and in other cases, not.”
Khama also said it is in the national interest that the best candidates are encouraged to make themselves available for judicial appointment.
He said suitable candidates might well be discouraged from doing so, where they fear that their character, integrity or reputation may be tarnished, should he decline to appoint them and should his decision and reasons therefore, be made public.
The President also said he has been advised that he is not legally obliged to disclose the reasons for declining to appoint a candidate recommended by the JSC.
In conclusion he pointed out that the appointment of judges is a most serious matter and once appointed they hold office until retirement at the age of 70.
“The decisions that judges are entrusted to make can, and often do have serious and far reaching consequences for both government and the governed.”
He respectfully requested the court to dismiss the application with costs, such costs to include the costs of two counsels.
Motumise has been a deputy chairperson of the Independent Electoral Commission (IEC) for 10 years.
This case concerns the reviewability of Khama’s decision not to appoint Motumise as the judge of the High Court following recommendation of the JSC, which is the second respondent in the case.
Meanwhile attorney Tshiamo Rantao, representing LSB and Motumise, confirmed receiving Khama’s answering affidavit and they would respond within 21 days.