LSB throws last dice to Khama over Motumise
Mpho Mokwape | Friday January 13, 2017 17:01
The Court of Appeal (CoA) bench will one last time on Monday hear the case over which Khama said he has the discretion to appoint Judges of the High Court.
The saga between the LSB and Khama started in 2015 following the refusal by the President to appoint Motumise despite being recommended by the Judicial Service Commission (JSC).
Khama’s contention at the time was that he had the discretion to appoint or refuse any Judge, whether nominated by the JSC while the LSB begged to differ on the matter.
The LSB together with Motumise then decided to file a case before the High Court to challenge Khama and seek the review of his decision not to appoint the lawyer when he was interviewed and recommended by the JSC as a suitable candidate.
The case was heard on November 9, 2015 before a full bench comprising of Justices Singh Walia, Abednico Tafa and Phadi Solomon.
At the time the case was heard, the LSB contended that the President acted improperly when he refused to appoint Motumise since he was recommended by the JSC as per the Constitution.
They were seeking a declaration that Khama, when appointing Judges, was bound to follow the recommendations from the JSC and the Constitution, which did not give him freedom to use his own discretion.
Now the LSB has taken the matter to the highest court following numerous attempts to seek clarity on the matter and have the decision to be reviewed failed. Early last year around February, the High Court bench that heard the matter dismissed the LSB’s application on the grounds that it was not brought in the public interest.
“I do not agree that the application was brought in the public interest. The tenor of the application suggests clearly that it was brought to challenge the non-appointment of Mr Motumise,” said Walia.
The bench had dismissed an application for an order that the President’s decision not to appoint Motumise be reviewed and set aside.
They had also refused to give an order declaring that Khama was bound to follow and implement the lawful advice of the JSC on the appointment of the High Court Judges.
“The application for an order declaring that the President is bound to follow and implement the lawful advice of the JSC is refused. In the final result the application is hereby dismissed with costs,” the judges said.
The CoA will be expected to hear the arguments on Monday and give clarity on the discretion of the President to refuse candidates recommended by the JSC for the appointment of judges.
Meanwhile the bench will also deal with two additional issues that were raised by the LSB when the matter started. The LSB had wanted that the JSC interviews of candidates for appointment as Judges be open to the public and that the JSC make public the outcome of its deliberations on the appointment of Judges.
Lastly, they wanted the representative of the LSB who sits in the JSC to be entitled to consult with the society on all matters related to judicial appointments.