Khama must implement Motumise judgement

Mmegi Editor | Friday April 21, 2017 13:11

This positive result challenged Khama’s 2015 decision to refuse to appoint veteran attorney, Omphemetse Motumise as High Court judge, which was a decision supported by three judges in last year’s ruling. LSB and Motumise argued that Khama acted irrationally when he reserved reasons for refusing the JSC recommendation to appoint the latter. But the panel of Judges said the President committed no reviewable wrong in making the decision.

The judgement read: “President too enjoys absolute and some tempered powers. There is another reason why Section 96 (2) may not be construed as vesting the ultimate power of appointment in the JSC. Having made a recommendation, it falls out of the picture together. How can it be regarded as the appointing authority”.

The Judges refused all orders sought by LSB and Motumise. Attorneys for LSB and Motumise soon after indicated that they would approach the Court of Appeal (CoA). “The extra ordinary judgment fails to deal with any of the five authorities we cited, which agree with our interpretation of the phrase ‘acting in accordance with the advice of.’”

The LSB and Motumise legal team was livid because the High Court panel did not consider the work of distinguished Professor Christina Murray who researched the phrase from its origins in English Common Law and came to the conclusion that it removes all discretion from the subject body/person.

The High Court Judges did not even bother to distinguish Murray’s findings from the wording in Section 96  (2), which is based on English precepts. Interestingly, during the arguments, the Judges asked counsel for the respondents to provide a single authority which supported their version on the interpretation of the phrase.

The respondents did not provide even authority. This week one the CoA Judges, Lord Arthur Hamilton endorsed the article written by Murray in his judgement that dismissed the President’s refusal to appoint Motumise as High Court Judge saying it is unconstitutional.

Another interesting thing in this landmark case is a panel of five CoA Judges differed on interpretation of the law.  In fact, there were four judgements delivered on the same case. One of these judgements dissented from three others. This is a clear sign of maturity on the part of the Appeal’s Court Judges.

The CoA Judges have come to be known as ‘I concur’ as most of the time one Judge will write a judgement and the rest will agree with them. Wednesday’s judgement in the LSB, Motumise case is a clear sign that not all is lost at the Judiciary.  Now it remains to be seen if Khama will play ball or if he will stick to his guns and snub the CoA ruling.

Today’s thought

“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.”

– Lord Arthur Hamilton