BDP MPs cross swords over Kgathi�s Bill
Tsaone Basimanebotlhe | Friday March 17, 2017 17:02
Yesterday, during the general assembly, Minister Unity Dow told his colleagues that the provision is worth relooking. The debate follows Justice Abednego Tafa’s recent judgement that invalidated the appointments of some CoA Judges. Minister of Defence, Justice and Security, Kgathi, has gazetted the CoA Amendment Bill, whose object is to comply with the High Court decision. The Bill proposes that Section 4 of the CoA Act prescribe the number of Justices of Appeal to be 12.
Further, it proposes that the tenure of office of a Judge of the CoA be increased from 70 years to 80 years. Dow submitted that the increase would be unlawful. She said 70 years has to be the minimum. The former Judge also proposed that in future, Botswana should not have one Judge deciding on all Constitutional matters.
She submitted that “never ever has a single Judge answered a constitutional question which amounts to a single view (sic)”. But it was her view that by enacting the Bill, Parliament would not be usurping powers of the Court, adding that this was the nature of democracy. Another BDP member, Biggie Butale submitted that Judges should not retire.
The assistant Minister, who is a lawyer by training, felt Judges should continue serving for good behaviour and age limit should be removed. “BDP must tread carefully as it may lose in Court and humiliate itself by losing cases,” Butale said, adding that Parliament can solve Constitutional matters.
For his part, Minister Sadique Kebonang, an Advocate, wondered why they were rushing when they should not. He explained that there is a special dispensation for CoA Judges tenure to be extended until they reached 73 years. “If you have special dispensation for 73 years, why move to 80 years? There is no rationale for 80 years,” Kebonang argued He also explained that Judges on contract cannot entertain new matters.
Kebonang who is an advocate, said 80 years is going to alter the provisions of the Constitution, explaining that without a referendum, it will be unconstitutional. He feared, “this age thing” is going to cause controversy.
Another BDP MP, Bagalatia Arone said he was unconvinced by the explanation from the acting Attorney General, Morulaganyi Chamme. Arone said 80 years retirement age is unjustifiable when graduates are roaming the streets.
He advised that those who reached retirement age should retire and create space for those who qualify. He also talked about “culture of perpetuating wrongs by the Government.” The Leader of Opposition, Duma Boko said they have had experiences of elderly Judges with hearing defects and other impairments because of age. Boko, who is also a newly admitted Advocate, said a Judge who is 80 years is near or post senility. He said there are qualified people who can be appointed as Judges.
Boko explained that whatever that has been invalidated by Constitution, Parliament cannot say it is okay.
“You cannot validate after the factor that what the Court has invalidated the Court only has the power,” Boko submitted. He explained that High Court Judges retired at 70; and by law they are Judges of Appeal.
He said this was a disparate treatment if you say CoA Judges retire at 80. MP Dithapelo Keorapetse asked why CoA bench is almost all white old males and why there were no women and only two locals who are black.
He also wondered why the memo on the amendment does not have rationale for 80 years. He wondered again why CoA is not sitting when it can sit. For his part , Vice president Mokgweetsi Masisi said there is no malice on the part of Government as they seek to normalise things and that there is no intention to protect any individual.
But MPs Keorapetse, Mohammed Khan and Pius Mokgware were clear that this Bill is to ensure CoA Judge President, Ian Kirby is protected. Kgathi told the MPs that he has noted their concerns.