Opposition to take Kgathi to Court
Tsaone Basimanebotlhe | Friday March 10, 2017 18:00
This resolution was taken at the caucus on Tuesday during a meeting with representatives of the Law Society of Botswana (LSB) and National Amalgamated Local and Central Government and Parastatal Workers’ Union lawyers, Mboki Chilisa and Tshiamo Rantao.
The opposition parties, Umbrella for Democratic Change (UDC) and Botswana Congress Party (BCP) legislators wanted the lawyers to advise them on what the Bill means.
“They advised us to throw the Bill out. They reasoned that the Bill seeks to overturn Justice Abednego Tafa’s judgement that invalidated the appointments of some of the CoA judges,” said an MP who attended the caucus.
The legal eagles also reasoned that if the Minister of Defence, Justice and Security, Shaw Kgathi wants to amend the Bill to increase the retirement age from 70 to 80 years, it ultra vires Section 101 of the Constitution that prescribes age.
“The 70 years retirement age for High Court and CoA judges was subjected to a referendum in 2001. If they want to change the retirement age they should take the same route again like they did in 2001.” Another MP added that once the Court says something is unconstitutional, it means that thing has never existed.
“The Bill says Parliament should backdate to 1980. The Court said it is unconstitutional, but Parliament says no, they were backdating the Act.”
He added that as Parliament they could not determine the unconstitutionality of the Section as it relates to the Constitution. They also discussed the sub-judice principle and asserted that Government has noted an appeal, but at the same time it has brought the Bill to Parliament. This appeal has not been withdrawn.
They also noted that the age issue seeks to protect the Judge President of the CoA, Ian Kirby.
“It is to make sure Kirby is sorted and to protect the other white judges.” Kirby is believed to be over the retirement age. The legislators also wondered why the CoA judges are mainly all white and male? “There are retired judges like John Mosojane, Mpaphi Phumaphi and Peter Collins.
There are also many other qualified and competent Batswana who can be hired at the CoA as Judges. We resolved that if the BDP passes this Bill, we would join whoever is challenging the Bill at the Court.”
According to Kgathi, the object of the Bill is to comply with the High Court decision. The issue for determination by the High Court was whether Section 4 of the CoA 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 also proposes that Section 4 of the CoA Act prescribe the number of Justices of Appeal to be 12. It further proposes that the tenure of office of a Judge of the CoA be increased from 70 to 80 years.
Opposition chief whip, Wynter Mmolotsi confirmed the meeting, saying, “We met as the opposition MPs to discuss this Bill. This Bill needs a national referendum for that Clause to be changed.
The Constitution cannot be changed by the majority of MPs in Parliament to suit a certain party. This is unacceptable. We have no choice but to take the matter to Court”.
He said they are not accepting that the Judges retirement age should be increased from 70 to 80 years because the concentration level of an 80-year-old is not that good. “Being a Judge requires one to be in good health, be able to research and work hard.
An-80-year-old person cannot be a good listener or researcher. We don’t have a problem with the number of Judges that Kgathi wants.” He said they would not support the Bill once it is tabled in Parliament.