This Is An Executive-Minded Bill � Saleshando
Tsaone Basimanebotlhe | Monday March 6, 2017 16:02
Saleshando believes this cunning plan is designed to keep ‘executive-minded’ Judges as the ruling party gate keepers at the chance of a change of government.
The Bill has rubbed the opposition the wrong way with critics already crying foul. In fact, the critics feel that Government is spitting on the judgement of Justice Abednego Tafa who invalidated some CoA appointments. According to the Minister of Defence, Justice and Security, Shaw Kgathi, the objective of the Bill is to comply with Tafa’s High Court decision.
The issue for determination by the High Court was whether Section 4 of the Court of Appeal Act is compatible with Section 99 (2) of the Constitution and “therefore invalid; and whether it is unconstitutional for the President to renew the appointment of a Justice of Appeal on the expiry of a three-year appointment”.
“The Bill proposes that Section 4 of the CoA Act prescribe the number of Justices of Appeal to be 12,” Kgathi said.
It further proposes that the age limit of tenure of office of a Judge of the CoA be increased from 70 to 80. Observers are of the view that the proposed new Section 4 (a) is unconstitutional because it is in essence an amendment of Section 101 of the constitution. This is an entrenched section and a bill that amends it has to go for a referendum after it is passed by Parliament.
Saleshando said when the retirement age of Judges was increased to 70, it went through a referendum.
“I didn’t think that the Botswana Democratic Party (BDP) will out of panic bypass the Constitution. We must not forget last week they refused the motion of Leader of Opposition (LoO) Duma Boko in Parliament saying there is an appeal pending,” Saleshando said.
He wondered whether the motion was withdrawn or not. He said this showed double standards on the part of the BDP Member of Parliament that they will never accept motions by the opposition.
“We won’t support an amendment without a referendum. He argued that the decision to increase the retirement age from 70 years to 80 years “is meant for some individuals by the BDP. They want executive minded Judges in office when there is a change of Government. These executive minded Judges will be their gate keepers”.
For his part private attorney, Kago Mokotedi was of the view that a constitutional provision on the appointment of Judges of appeal cannot be entrenched.
“By entrenched we mean that Parliament cannot solely tamper with the provision. The Bill of Rights is a perfect example of an entrenched provision. It seems that the only way to rectify the CoA Act is through an amendment Bill, as it was the case after the Unity Dow judgement in relation to the Citizenship Act,” Mokotedi said.
He explained that the Bill seeks to align the CoA Act with Section 94 of the Constitution adding that Acts of Parliament must comply with the Constitution as the superior law of the land. “Now the Court has ruled that the CoA Act is ultra vires the Constitution and in need of amendment and that amendment can be effected through a Bill”.