Parliament fails people in passing CoA Bill

Dithapelo Keorapetse | Friday April 21, 2017 18:23

The court held that it is Parliament which should prescribe the number of CoA judges. It further held that judges of Appeal are only appointable on a three year no-renewable contracts. This therefore meant that almost all cited judges in the case were unconstitutionally appointed and that their appointment was null and void. The court gave a structural interdict; six months period within which Parliament should rectify the anomaly. The Justice, Defence and Security minister tabled a Bill before parliament on a certificate of urgency and asked parliament to amend the CoA Act.

The minister asked Parliament to prescribe the number to twelve judges of Appeal. He also wanted to raise the retirement age of judges of CoA from 70 to 80 years. The minister sought to validate previous appointments judges, previous proceedings and judgements of the CoA. Two General Assembly meetings were held in which the minister sought to be advised and seek some sort of a consensus from MPs. However, there were heated debates in the two assemblies with MPs who are lawyers generally having misgivings with particularly clause 3 of the Bill dealing with raising retirement age to 80.

The argument was that this amendment if passed would effectively be an amendment of a Section of the constitution which sets retirement age at 70. This section of the Constitution, it was contended was entrenched and that it would require a referendum to amend. It was also argued that there are many lawyers who are experienced and qualify to be called to the Appeal bench and that there was no need to raise the retirement age to 80.

Arguments were made that age 80 is too old, near senility and that there is plenty of skilled able bodied lawyers to call to the bench. Reference was made to the 2001 referendum in which Batswana were asked to among others approve the raising of the retirement age of judges from 65 to 70 and that this particular question received a lesser number of votes than other questions. Under pressure, the minister abandoned the age clause. Other clauses remained.

The opposition then suggested amendments to the Bill. Firstly, the opposition suggested that Parliament should prescribe the number to a minimum of nine and a maximum of 12 judges. The reason was that if the number is left at not exceeding 12 as the minister suggested, it would mean the appointing authority could appoint any number below 12, including one or two or three. This was in recognition that all High Court Judges are by law CoA judges. However, these have day to day matters they are dealing with and therefore not readily available for CoA work. The argument was that CoA must have a minimum of 9 substantive justices and a maximum of 12. This proposal of a definitive prescription was thrown away.

Secondly, the opposition suggested that all clauses which sought to validate previous appointments dating back to 1980s, previous proceedings and previous judgments, should be deleted. the reasons advanced by the opposition were that these matters were not before the court in the judgment in question and that by validating previous appointments, this would violate the principle of legality; that the court held that the appointments were as good as not having existed and that parliament couldn’t therefore say they are valid. This, it was contended would mean parliament has usurped the role of the courts, have a right to determine the constitutionality of otherwise of appointments in question. The minister and the ruling party refused this suggestion and voted against it.

Thirdly, the opposition then suggested that at least five of the CoA judges be females. It was argued that for fifty years, the system of appointment failed to yield even a single woman at the CoA, notwithstanding the availability of capable women who could be called to the bench. It was extremely hard for the ruling party to argue this proposal; it found solace in a hollow argument that the Judicial Service Commission (JSC) has a right to determine its own proceedings and that it cannot be directed by anybody or authority. When sked if the cited provision implies that the JSC cannot be bound by a law made by parliament, the answer was not provided.

The JSC, it was submitted by the opposition, is bound by the Constitution, Legal Practitioners Act, the CoA Act and High Court Act and other laws in recommending persons to be appointed judges.

Fourthly, it was suggested by the opposition that all CoA judges be Batswana. This was in recognition of the fact that the CoA bench was predominantly foreigners from South Africa and the UK. It was further observed that an overwhelming majority of these judges are white old men. Questions were asked on why after 50 years the country has a CoA bench resembling apartheid South Africa or colonial Botswana. It was queried that there are many Batswana jurists in the private practice, government and academia who qualify to be justices of Appeal.

The ruling party struggled to demonstrate the prejudice the country would suffer if it legislated to localize the CoA bench. The ruling party was reminded that in the US all the nine Supreme Court Justices are Americans and that in South Africa all Constitutional Court Justices are South Africans. The ruling party struggled to even explain why the bench is predominantly white, male and old.  Again, this proposal of affirmative action by the opposition was thrown away.

Lastly, the opposition proposed that appointments of CoA judges should be openly advertised and that their interviews should be held in public for purposes of transparency and accountability. The ruling party refused this suggestion without saying what harm is there in open adverts and open interviews. The Manual Workers Union may have to go back to court to question the wisdom of validation of previous appointments, proceedings and judgments by Parliament.

They must raise points of law on whether parliament can rubbish a court judgment, that is, parliament saying that which the court said was invalid is by retrospective legislation valid. parliament has failed dismally to apply affirmative action in COA appointments and to localize the bench. It failed to redeem the system of appointment of judges by making it more transparent and possibly restore the integrity of the judiciary and restore public confidence in the institution.