Selebi-Phikwe West legislator Dithapelo Keorapetse has called for legislation and policy changes as interventions for what he says is the main concern and perception in the legal fraternity and other quarters.
He said the concern was that the Court of Appeal (CoA) was effectively a privatised public institution that operated secretly it was perceived to be singularly run by Judge President, Ian Kirby.
“He is perceived to be the one who effectively decides who should or should not be a Judge. It is widely believed that if you are a Motswana, qualified and experienced - even qualified more than him, if he doesn’t like you, you can’t be a Court of Appeal Judge. The recruitment to the Court is not based on merit. There is no known criteria, no advertisements of vacancies,” Keorapetse said.
Keorapetse raised the concerns in Parliament recently in a question that was directed to the Minister of Presidential Affairs, Governance and Public Administration on the appointment of Judges, independence, integrity and public confidence in the COA.
He said the appointment of Judges was an important aspect of judicial independence, which required that in administering justice, Judges should be free from all sorts of direct or indirect interference or influence. He further stated that the Constitution provided that the President should appoint the Chief Justice, through Section 96 (1) and the President of the High Court of Appeal according to Section 100 (1). He said it is not stated that the President must appoint them in accordance with the advice of the Judicial Service Commission (JSC).
The legislator further stated that other Justices of the High Court were appointed by the President in accordance with the advice of the JSC.
He added that members of the JSC were all presidential appointees, save for one member from and nominated by the Law Society of Botswana.
“Unlike the High Court, the CoA does not advertise vacancies that occur and interview candidates for judgeship. This is serious because transparency and openness of selection of judges reinforces merit and independence of Judges and the judiciary as an institution. In
Keorapetse said to make it to the CoA one must be approved, it would seem, by the Judge President and may be the Chief Justice. He further explained that he says so because even him does not appear to have any influence on the matter even though he heads the Judiciary.
“This kind of arrangement is similar to corruption. Currently the Judge President and one or two Judges have long reached the retirement age of 70 but they have had their contracts renewed twice, or more, for three or so years unnecessarily because there are Batswana who can serve in their positions even more competently. It steals opportunities for young Batswana judges to serve in the Court of Appeal,” he said.
Responding to the legislator’s concerns, the Assistant Minister, Dumezweni Mthimkhulu said in terms of the country’s constitution, Judges of CoA were appointed by the President and currently there were nine members made up of eight male Judges and one female Justice. He added that there were six-citizen Judges aged between 61 and 74.
“The one with 72 years is on his first contract. There are also two Judges aged 73 and 74 who are on second contract. There are also two South African Justices aged 67 on the first contract and the other who is 72 years is on second contract.
There is one Scottish Judge aged 78 on second contract. For now, the JSC has determined that the three eminent juries from other countries who served in our court add value and objectivity to our jurisprudence,” Mthimkhulu said. Mthimkhulu further stated the JSC should not be subject to the direction of control of any other person or authority in the exercise of its functions under this Constitution.