LSB, Motumise case wrongly decided
Correspondent | Friday February 12, 2016 12:17
Firstly, the court, did not refer to the rudimentary tenet of construction, to wit, that constitutional provisions must be given a broad, wide and generous interpretation( see the Dow Case), obviously in view of the fact that a constitution like ours is an organic instrument which must constantly grow and evolve with the ever varying circumstances of the society(modern).
Premised on this canon of construction, i expected the court to give section 96(2) a wide interpretation which would include that where an appointing authority is vested with powers such as to appoint judges in our scenario and it decides to reject a recommended candidate it must furnish reasons for such outright rejection.
Frankly speaking, i am at pains of understanding and appreciating how Khama’s decision was not irrational, when firstly the JSC did its interview procedures and in its wisdom although not beyond fault hands over to Khama what it deemed the best candidate at the time and he on the other hand does no investigation(at least he didn’t in terms of his answering papers) about the candidate in question but have the guts to press the rejection button.
Further Khama does not tell us whether he had other discrediting information about the candidate unknown to the JSC and whether indeed such other information as he might have had in his possession was a relevant factor to take on board.
It is my strongly held opinion given the selection process done by the JSC that there is no greater irrationality than where the president decides to reject a recommended candidate to the bench without furnishing reasons for same. Such an absurd act leaves us with one intolerable and misplaced phrase in our contemporary world, “abuse of power”.
This unmerited and pedantic interpretation gives room to a sitting president to take into account even irrelevant factors, such as but not limited to political orientation and opinions, personal issues altogether not congruent for a fitness of a judge. This possibility makes it even more urgent and critical for the president to furnish his reasons.
I find it nonsensical and disingenuous to say that the disclosure of reasons would impinge the reputation of the candidate, in my view it won’t because such disclosure is made or ought to be made to the JSC whose deliberations are confidential and the JSC may later on disclose such reasons to the candidate in question but not to the public. In that event, I rhetorically ask, how would the public know and learn about such reasons. I therefore argue that this reason by both the Respondents and the court has no scintilla of merit.
It is my unapologetic view that the reason why we still have a somewhat like a stone age constitution so to speak is because of the judges who are seasonally loath to breathe life in this constitution. Ours is a constitution not far from the grave yard, its ineffectiveness and lack of growth is a sole responsibility of the men and women(our judges) we wrongly hold in high esteem. In this age, it’s suicidal to leave such important functions of appointing judges to the unfettered discretion of the president. In conclusion for the reasons given in the judgment for the rejection of Mr Omphemetse Motumise i think the case was wrongly decided.
*Othusitse Mbeha is a practicing attorney at Duma Boko and Company