The Law Society of Botswana (LSB) has resolved to join proceedings in which the National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU) has taken President Ian Khama to court, challenging the appointment of the seven Court of Appeal judges.
In a notice to members dated September 16, 2015, the LSB chairperson Lawrence Lecha said members expressed the view that the LSB should consider joining in the litigation.
“Council advised that it had previously taken a position that the appointment of judges of the Court of Appeal on renewable three-year contract terms was unconstitutional.
“This position had been put to the Judicial Service Commission through the LSB representative on that body when it considered the latest appointments to the Court of Appeal.
Given the foregoing, council associated itself with the position of the applicant in this matter and a resolution on whether to join or not would be taken at the next meeting of council,” said Lecha.
In his founding affidavit, the national organising secretary of the NALCGPWU, Johnson Motshwarakgole, argues that the appointments of the CoA judges by the president are invalid.
First, he is challenging the constitutional validity of Section 4 of the Court of Appeal Act in so far as it delegates to the president, Parliament’s constitutional powers to determine the number of judges of the Court of Appeal. Attorney Mboki Chilisa represents the union in this matter.
The law society also discussed its position of possibly joining the suspended judges' proceedings in court.
“There was a strong view that the LSB decision not to join in the proceedings was wrong. The LSB council will reconsider the position at its meeting of the 25th September and advise members of its resolution.”
It also discussed the position of appointing acting judges to fill the four vacancies created by the suspensions.
Lecha said the society informed members that the JSC proposed a process where names would be drawn from those who had previously applied for positions of judge, and that LSB, through its representative on the JSC would be allowed to submit names to be considered.
The LSB position however was that it was not adverse to the appointments, but objected to the process that was to be followed and therefore the LSB representative would not participate in such process.
“It emerged however on Tuesday in the morning that one appointment was made on Friday 11th September and the said judge took oath and started sitting on Monday 14th. Members are advised that at the time of the meeting on the 14th September, Council of the LSB was not aware of this fact.
The LSB representative has since advised that he participated in a process at the JSC through which two attorneys were considered and recommended to the President for appointment as acting judges of the High Court.” He said the council of the LSB is obviously concerned that the LSB representative, Marvin Torto on the JSC, did not bring the above information to its attention.
“This matter is being attended to and members will be advised after the council meeting of the 25th September on how it has been resolved or is proposed to be resolved.”
Lecha also discussed the alleged appointment of Torto as acting judge.
“Following persistent rumours that the LSB representative in the JSC Mr Marvin Torto was one of those appointed acting judges or was at least considered for such by the JSC, council sought clarification from Mr Torto.
At a meeting held on Tuesday the 15th in the evening Mr Torto advised council that he had not been appointed as an acting judge, had never applied for position of judge and therefore was not eligible to be considered as such and was also not approached by the JSC for such appointment.”