LSB, Motumise Vs The President, JSC And Others
Correspondent | Monday April 24, 2017 15:04
This Judgment is therefore indeed a victory for Batswana and above all the Rule of Law. From 2009 the Law Society of Botswana noted a trend where the President rejected names recommended to him for appointment as Judges by the Judicial Service Commission (JSC).
In an attempt to mitigate this trend, the JSC had adopted, it would appear, an approach where it submitted more than one name for the President to choose from and appoint.
The Society and indeed the public were increasingly concerned that the processes adopted were seemingly not in line with the principle of separation of powers and the Constitution.
In 2011 the Society’s Annual General Meeting adopted a Position Paper on the subject of appointment of Judges. The Position Paper’s main thrust was that Section 96 (2) of the Constitution gave the President no discretion but to appoint any name submitted to him by the JSC for appointment as Judge and that the JSC could only submit to the President the same number as there are vacancies.
The Paper also contained a Resolution that should the President act contrary to the above position litigation would be launched.
In 2015 the JSC submitted the name of Mr. Omphemetse Motumise to the President for appointment as a High Court Judge. The advice of the JSC was rejected by the President without giving reasons for such rejection. The JSC took the position that the President had acted lawfully as it was merely an advisory body.
In the same year, The Law Society and Mr. Motumise brought an application against the President of Botswana and the Judicial Service Commission at the High Court challenging the President’s decision and JSC position above.
The Law Society and Motumise argued that Section 96 (2) of the Constitutional which requires the President to act “in accordance with the advice of the Judicial Service Commission” does not give him discretion and therefore he cannot refuse to appoint.
In addition, the Court was requested to determine whether the President’s decision to refuse to appoint Mr. Motumise is reviewable. The Law Society of Botswana argued that the President’s refusal to appoint Motumise is both unconstitutional and irrational.
In addition, the Law Society and Motumise argued that the procedures followed by the Judicial Service Commission during the appointment process were not transparent and sought an order making such declaration and further orders that the interview process be transparent.
The Law Society argued that these procedures ought to be transparent, including that Judicial Service Commission interviews be held in public and that the outcome of the deliberations be made public. In its judgment in February 2016, the High Court rejected all the submissions of the Law Society and Mr. Motumise with costs, hence the appeal.
The Court of Appeal has now handed down judgment in this matter and its decision, with one dissenting Judgment, can be summarised as follows:
The President is bound to appoint a Judge in accordance with the advice of the JSC and has no discretion in the matter once the “advice” is submitted to him;
Decisions of the President can be reviewed and set aside; Even if the President was entitled to refuse to appoint “in accordance with the advice of JSC”, which he is not, he would still need to have given reasons for his decision;
The Constitution provides that the JSC shall regulate its procedure and therefore the Court is not competent to grant all orders sought by the Law Society and Motumise on the conduct of the selection process. Of note is that the Court however stated that the public should open discussion on the matter of transparency as it relates to the selection process.
The Society is heartened by this and hopes the JSC will take these sentiments into consideration and review its processes ; and Each party is to bear its own costs at both the High Court and the Court of Appeal. The importance of this matter is signified by the fact that there were four Judgments that were handed down.
Three Judgments of four Judges essentially agreed that the President has no discretion once the advice of the JSC is submitted, albeit for different reasons. One Judge wrote a dissenting Judgment where he agreed with all Judges except that he held that the President has discretion to refuse to act in accordance with the advice of the JSC.
The Society now expects that the President will appoint Mr. Motumise in accordance with the advice of the JSC and awaits such appointment.
The Law Society of Botswana and Mr. Motumise wish to thank the public and international partners who have supported this process over the years.
In particular the Society acknowledges the support of its members who worked tirelessly in putting together the Position Paper on Appointment of Judges, the litigation team who worked on this matter on a pro bono basis and Sothern African Litigation Centre for the technical and legal support.
*Tebogo Moipolai is the LSB exeuctive secretary