Motumise prevails over Khama
Oarabile Mosikare | Thursday April 20, 2017 17:36
Khama refused JSC’s recommendation to appoint veteran attorney Omphemetse Motumise in 2015.
The Law Society of Botswana (LSB) and Motumise had appealed the matter after a panel of Justices, Singh Walia, Abednego Tafa and Phadi Solomon dismissed the application last year. The respondents in this case were Khama, the JSC and the Attorney General (AG). The JSC is comprised of Chief Justice Maruping Dibotelo, CoA Judge President Ian Kirby and the AG who at the time was Athaliah Molokomme, amongst others.
Handing down judgement yesterday, Lesetedi said Motumise’s application for appointment as a judge of the High Court was considered by the JSC and he was found to be the most suitable candidate. “There is nothing in the documents before this Court showing that at any stage during the deliberations of the Judicial Service Commission there was any input from the Attorney General, which may have reflected on the Government’s reservations on the second appellant’s suitability to be appointed to the office of a judge of the High Court,” Lesetedi said.
He pointed out that a letter from the President refusing to act on the recommendation of the JSC did not provide any reason for such refusal. “In his answering affidavit to the review application, the President, over and above relying on the legal advice upon which he acted in not providing any reason for refusing to act on the advice of the Judicial Service Commission, pointed out that he had sound reasons for not acting on the advice of the Judicial Service Commission but that on legal advice those reasons could not be disclosed.”
He continued: “It is apparent that both the Judicial Service Commission and the President were not properly advised on the remit and powers of the Judicial Service Commission and those of the President in the implementation of Section 96(2) of the Constitution”.
He said in the absence of an explanation by the President therefore, his decision stands to be reviewed and set aside.
Lesetedi also dealt with issues relating to the functioning of the JSC in relation to the value of transparency. The appellants had wanted the CoA to declare that JSC’s interviews of candidates as a general rule be open to the public, and, that it be declared that the JSC must make public the outcome of its deliberations in the appointment of judges.
“It is unclear too, how, beyond the public getting to know those candidates whose applications have been unsuccessful, the public interest of knowing the failed candidates and with it the collateral possible embarrassment to the failed candidates, the public’s perceived benefit crystallises to any enforceable right,” he said.
Lesetedi ruled that each party must bear its own costs of this appeal.
Justice Frederik Brand concurred with Lesetedi, while Lords Arthur Hamilton and Alastair Abernathy agreed with Lesetedi but disagreed on the interpretation of Section 96(2) of the Constitution.
“In my opinion, on a proper interpretation of Section 96(2) the President’s power to appoint these judges is no more than a formal power and the substantive power lies with the Judicial Service Commission. The President accordingly acted unconstitutionally in my opinion in declining to appoint the second appellant to the office of a Judge of the High Court,” Abernethy said.
For his part, Hamilton said: “…I am of the view that the President acted unconstitutionally in declining to appoint the second appellant to the office of a Judge of the High Court and that, in that respect, the appeal must succeed. As earlier indicated, I agree with Lesetedi JA that, for the reasons he gives, the appeal in all other respects should be dismissed”.
Another member of the panel, Justice Monametsi Gaongalelwe delivered a dissenting judgment. Gaongalelwe said if the framers of the Constitution had intended to make the advice of the JSC binding on the President, Section 96(2) would have expressed such unequivocally. “That would have been done by inserting only one short word ‘binding’. The phrase would have read: ‘In accordance with the binding advice of the Judicial Service Commission’,” Gaongalelwe said.
He explained that inserting that one word would not have caused prolixity at all nor cost a penny more, but would have rendered the Section unambiguous and susceptible to no debate.
In conclussion, it was his view that there is no universally accepted meaning attributed to the phrase “acting in accordance with the advice”. “It all depends on the regime of a particular country and the context in light of other provisions in the Constitution.
I am in agreement with the conclusion of the Court a quo that in this matter the phrase simply means the President is not to appoint a person who has not been recommended by the JSC. The appeal on this claim must accordingly be dismissed as well,” Gaongalelwe said.
Meanwhile, there is a vacancy at the Francistown High Court that was created after former Justice Kholisani Solo was retired earlier this year on medical grounds. It is yet to be seen whether Motumise will be posted to Francistown to fill in that vacancy.