A panel of three judges has reserved judgement in a case in which President Ian Khama is being sued for rejecting the appointment of veteran attorney Omphemetse Motumise as High Court judge.
Early this year Khama rejected the recommendation of the Judicial Service Commission (JSC) to appoint Motumise to the bench. Three judges Singh Walia, Abednico Tafa and Phadi Solomon said they would inform the parties about the date of judgement in good time.
Appearing for the Law Society of Botswana (LSB) and Motumise, senior counsel Wim Trengove said the refusal to appoint Motumise was unconstitutional and subject to review because it was irrational.
“The JSC made a selection and Mr Motumise was their selection. The President refused to appoint him and did not provide any reasons. We submit that the refusal amounted to irrationality. With greatest respect Botswana is a constitutional democracy,” submitted Trengove.
He said there is no such thing in a constitutional democracy that some things are not subject to review. He added that if the President uses his powers in bad faith, his powers are subject to review.
“If the decision was irrational it is subject to review.” About the JSC’s decision to conduct its business on camera, Trengove said the commission is bound to exercise its powers in the public interest.
“Public office carries high responsibility. JSC should exercise its meetings in public. There should be transparency.”
Trengove appeared with instructing attorneys Tshiamo Rantao and Osego Garebamono.
Appearing for Khama and the JSC, senior counsel Anwar Albertus submitted that the JSC is not the appointing authority because it is not vested with the power to remove.
“The President is the only person vested with powers to appoint. The President has the power to reject recommendation from JSC. The President does not have to give reasons,” submitted Albertus.
He said although the JSC recommended Motumise, there was no undertaking to make him a judge. “The decision was not communicated to him.”
He added that Khama is not entitled to give reasons therefore his decision to reject the recommendation of the JSC could not be irrational.
About the JSC’s decision not to conduct its meetings in public, Albertus said there are issues of privacy that the commission has to bear in mind.
“It is the discretion of the JSC to regulate its decision.”
He prayed for the dismissal of the application with costs for two counsels.
He appeared with advocate Grant Quixley, attorneys Charles Gulubane and Yarona Sharp.