British Colonial Conference Minutes To Resolve Judicial Debacle
Oarabile Mosikare | Monday November 9, 2015 12:13
Early this year Khama rejected the recommendation of the Judicial Service Commission (JSC) to appoint Omphemetse Motumise to the bench. Three judges: Singh Walia, Abednico Tafa and Phadi Solomon have been appointed to hear the case. The lawyer for LSB and Motumise, Tshiamo Rantao, said the argument for this case is at the High Court in Gaborone today.
In his supplementary replying affidavit, the LSB executive secretary, Tebogo Moipolai, said attached to his affidavit is an excerpt of the minutes of the Bechuanaland Independent Conference held in London in 1966.
“At the time of deposing to the replying affidavit, the first applicant, LSB, only had a few exerpts of the minutes of the said conference, and did not have the relevant certified copies thereof,” he said.
Moipolai said he was adviced by attorney Kuda Tshiamo that on August 7, 2015 she went to the Botswana National Archives to get the minutes of the said conference but in vain. Tshiamo was told that no such minutes existed.
“Having looked for the minutes in vain at the Botswana National Archives, the first applicant decided to look for them at the British National Archives.
This took a considerable time given the distance between Botswana and Britain. They were only delivered to the first applicant’s attorneys on October 8, 2015 who had to take instructions with a view to launching this interlocutory application.”He said one of the annexures contains the minutes of discussions during the Bechuanaland Conference relating to the appointment of judges at the meeting dated February 15, 1966. Elected members of the Bechuanaland Legislative Assembly who attended the conference were Prime Minister Seretse Khama, deputy Prime Minister Quiet Masire and the Leader of Opposition, Phillip Matante.
In his founding affidavit, Moipolai submitted that the JSC was obliged to give reasons for its decisions not to recommend a particular candidate or to recommend a particular candidate when called upon to do so. “Although the Constitution allows the JSC a wide discretion to determine its own procedure that discretion is not unfettered, as can be seen from the use of the word ‘may’ in section 103 (5) and the pre-determined requirements on voting in section 103 (6).
“The JSC is under a legal obligation and constitutional obligation to act rationally and transparently and, it follows, is obliged to give reasons for its decisions.
It is difficult to see how the JSC maintains accountability. Access to the records of the JSC is also essential to a proper determination of whether there is a rational connection between the process taken before appointment and the decision and the reasons provided by the JSC,” said Moipolai.
He said the position of the LSB is that the President has no discretion in terms of section 96 (2) of the Constitution which provides that he must appoint ‘in accordance with the advice of the’ JSC. Therefore, the rejection of Motumise’s name is unconstitutional.
In his court papers President Khama came short of saying Motumise is a national security threat. Khama said: “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.
“All these involve information to which the JSC does not necessarily have access 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 it would be inappropriate for him 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.”