Bravo to President Khama
Owen Nsala | Wednesday September 6, 2017 15:33
It is common cause and well documented that the Court of Appeal (CoA) had ordered that the President was bound by the recommendations of the judicial service commission to appoint whoever has been so recommended. The CoA made it tellingly clear that it matters less how a sitting President feels about a recommended person and that a President has no veto powers to disregard the recommendation.
The CoA made it crystal clear that the power to appoint lies with the Judicial Service Commission (JSC) and fell short of saying that the President’s powers are only ceremonial to the extent of endorsing the recommendation.
The legal fraternity had to endure a frustrating period of wait and see as the President abided by his time and for some time most thought the President would not act. The reluctance to so appoint as stated by Minister Shaw Kgathi may well explain the noteable delay in the appointment. That conversation of failing to appoint now remains water under the bridge and it is the appointment that we must find celebration in for various reasons.
President Khama must be accorded a word of commendation for his act to finally appoint Judge Motumise. It is suggestive of a President willing to uphold the Constitution and respect the rule of law.
It says to future presidents that it matters less how deeply saddened one feels about a judgment of the court, only that, even in the occasion of disagreement with a judgment a sitting president must respect and abide by it.
The decision to appoint tells Batswana that the Executive takes regard of the Judiciary is not willing to be involved as a meddlesome interloper or a busy body to the judiciary.
Granted, the statement that the President reluctantly appointed Motumise has a bitter taste. It has a bitter taste to the extent that it suggests that the President strongly feels against the character of Motumise as a sitting judge and may in the future come across as a déjà vu moment for the President or his praise singers when, God forbid, Justice Motumise slips in the line of duty. It leaves a bitter taste because it suggests the President knows something that we do not know that maybe a hindrance to Justice Motumise doing his job to the best of his abilities and upholding the oath of office.
The bitter taste however cannot outweigh the honourable and noble step taken by the President. We must not lose sight of the fact that the President was a litigant to the matter and rightfully so, he has a side that he had taken. At law, he has a right of audience before courts to defend his position.
The President is human and like all other litigants, will feel hard done when a case goes against him. We all do, do we not? We can therefore not pretend that General Khama breathes different or specialised oxygen to the exclusion of other human beings.
He has his own feelings about the case and would, like any other litigant want to have won the case and defend his standpoint.
He therefore must not be overly blamed for his frustrations towards the call by the CoA. Show me a single litigant who has celebrated losing at court. There is none.
What we must commend is that despite his frustrations towards the judgment, he went out of his way to reluctantly appoint Motumise. He put his feelings aside and respected the rule of law.
He did what he took oath for. A tough call on his part worthy of mention. I salute you President. Justice Motumise’s appointment must be celebrated by the legal fraternity for various a reasons. Whilst I am not privy to the reasons why President Khama so strongly feels against Motumise, I can vouch for the gentleman that he is an astute attorney and well versed in the law.
He is a trained private practice lawyer and has convincingly argued cases with distinctive ability. He has demonstrated his ability and appreciation of the law with few able to match him. He is a marvel to hear in deliberations and interpretations of the law.
The Law Society of Botswana must similarly be commended for having taken the legal war to the courts to seek clarity on the appointment of judges at a time when there had been a disturbing trend of rejecting senior and well trained lawyers to the bench.
It was a necessary call without which we could have lost a man with undoubting ability to our bench and by extension to our jurisprudence. More judges of his caliber are needed to grow rather than regurgitate our jurisprudence.
As the Motumise matter is laid to rest, we hope the next development would be for the JSC to be made more a public forum such that interviews and those that have applied are afforded public scrutiny by competent members of the JSC and if there are any skeletons in the closet, they must tumble out.