JSC concurs with Khama on Motumise
Oarabile Mosikare | Friday July 31, 2015 15:33
In a lengthy answering affidavit deposed by JSC secretary, Michael Motlhabi signed two days ago, the provisions of the Constitution further buttress this interpretation.
This case concerns the reviewability of Khama’s decision not to appoint senior attorney Omphemetse Motumise as the judge of the High Court following recommendation of the JSC.
Khama is the first respondent while the JSC and Attorney General are second and third respondents respectively.
“The JSC respectfully submits, for reasons that are to follow, that the President’s power to appoint judges to the High Court, is not reviewable.
The JSC has been advised that the President’s power of appointment under Section 96 (2) of the Constitution, is executive in nature. The exercise of this power is a matter of national importance to the extent that it determines the composition of the judiciary,” said Motlhabi.
Just like Khama in his answering affidavit, Motlhabi said the exercise of this discretion involves taking into account a broad range of factors including questions of national security, socio-political considerations, public perceptions and questions of policy.
“These are all matters that fall within the exclusive domain of the executive. The JSC submits that this court does not have the power to review the exercise of this discretion by the President, which is executive in nature.”
Motlhabi said whilst the JSC acknowledges that its role in the appointment of judges is pivotal, it does not accept that it has the sole responsibility for deciding who should be appointed as judges.
Nor, he added, does it accept that Khama has no discretion whatsoever to refuse to appoint a judge recommended by JSC. He submitted that the applicants’ contentions are not supported by a proper interpretation of Section 96 (2).
The JSC secretary said it should be noted that the JSC and the President have long acknowledged and respected their respective substantive roles in the appointment of judges.
“The President has in the past, occasionally, rejected candidates who have been recommended for appointment by the JSC. The JSC has consistently recognised that the President has the power to do so and has accepted the President’s decisions in this regard.
“When the President rejects the JSC’s recommended candidate, the JSC is reposed with the power to recommend another candidate for appointment,” he said.
Motlhabi continued: “Section 96 (2) has been deliberately and carefully formulated. The emphasis is placed on the repository of the power. To this extent, the section does not state that the President shall appoint judges in accordance with the advice of the JSC.
Instead it states that judges “shall be appointed by the President” in accordance with the JSC’s advice.
Consequently, it is the President who has the power to appoint judges. They shall be appointed by him and by none other and where he does so, he is obliged to do so in accordance with the advice of the JSC.”
He further submitted that the applicants’ argument wholly subverted the clear wording of the section, which vests the power of appointment in the President.
“The applicants contended that the President is no more than a rubber stamp and that the substantive power of appointment, rests with the JSC… “Contrary to the clear wording of the section, the applicants envisage the JSC as the body in which the substantive power of appointment resides with the President having no more that perfunctory and ceremonial role.
“This is entirely inconsistent with the JSC’s function under Section 96 (2), which is simply to provide advice.”
He said the President retains an independent discretion to determine if and when to exercise that power. Motlhabi said the JSC has no physical building, staff or investigative capacity.
It is an ad hoc committee tasked to fulfill its Constitutional functions. It does not have power to investigate the background of nominees for appointment to the bench or to verify the truth or accuracy of the information provided by applicants.
He said the commission relies on the institutional knowledge of its members, the good faith of individual applicants and the judgments of the referees who support individual candidates.
“The President, on the other hand, has the investigative and advisory powers of the state available to him. The organs of the state at his disposal have the power to investigate the background of individual applicants and to verify the information provided by those applicants.
The President may rely on the advice of his Cabinet and may consult his own advisors, whereas the JSC is not equally equipped for these purposes.”
In effect, Khama may seek advice and undertake enquiries and thereafter, take the decision whether or not to appoint a judge based on the advice and information received.
The JSC also dismissed the applicants’ order that the interviews should, as a rule, be open to the public. Motlhabi explained that the commission is empowered to hold its interviews in private and there are sound reasons it has decided to adopt this procedure.
In this regard, the protection of candidates’ privacy requires that interviews not be open to public scrutiny.
“Interviews routinely canvass sensitive information relating to the candidates’ private and social lives that should properly not be ventilated in public…
“Moreover, the public scrutiny inherent in public interviews is likely to dissuade candidates from seeking judicial appointment. It is in the national interest that the best candidates should be attracted to the bench and that any obstacles that impeded this objective, should where possible, be removed.”
He said while transparency is an important principle which the JSC embraces and seeks to promote, it must be balanced against other competing interests.
“Moreover, it is important to note that transparency is not a constitutional imperative in Botswana as it is in some other countries.”
In conclusion, the JSC submitted that the application ought to be dismissed with costs and such costs to include that of two counsels.