The Law Society of Botswana (LSB) and senior attorney Omphemetse Motumise will soon approach the High Court to challenge President Ian Khama’s decision to reject the recommendation of the Judicial Service Commission (JSC) to appoint Motumise to the bench.
The LSB and Motumise will further approach the High Court to review the decision of JSC that its role is ‘advisory’ and therefore to accept the decision of the President. This follows the reports that Khama rejected JSC’s recommendation to the appointment of Motumise as a judge of the High Court.
On March 18, 2015 the LSB executive secretary Tebogo Moipolai issued a notice to members informing them that a statutory notice was served on all affected parties and their legal representative, the Attorney General.
“In the meantime, JSC is required to undertake by noon on Friday 20th that it will not recommend another name to His Excellency [President Khama].
In the meantime, HE is required to undertake by noon on Friday 20th that he will not appoint anyone else as Judge. If no undertaking is received from either two above, then an urgent application for an interdict will be launched,” said Moipolai.
He also told his colleagues that LSB has procured support from Southern African Litigation Centre (SALC) who will source a senior counsel from South Africa to lead in this matter. “However, senior counsel will only be availed for a substantive application to be filed in the normal cause.
Attorney Tshiamo Rantao (with a few other attorneys assisting him) has been instructed by the LSB in this matter with a view to moving an urgent application should the undertakings not be delivered and, thereafter, to brief senior counsel in the intended application in the normal cause.”
He said in 2009 there was much discussion of the process of appointment of judges following the decision by Khama to reject names recommended to him by the JSC for appointment of a High Court judge.
In 2009 Khama snubbed the JSC recommendation that former Justice Gabriel Rwelengera, who has been acting as a High Court judge, should be confirmed. Khama also rejected the appointments of former Parliamentary Counsel Lizo Ngcongco and Francistown based private lawyer, Gabriel Komboni as acting High Court judges.
Following that engagement the society produced a position paper on the subject. “The position paper was adopted by the Annual General Meeting on the 13th December, 2011 and has been shared with the JSC and distributed widely.”
“The paper addresses several issues but the relevant one for the current circumstances is whether the role of the JSC is ‘advisory’ and the President has a discretion to reject the recommendation or the Constitutional provision is mandatory and therefore the President has no discretion and is required to act on that recommendation.
The position of the society is that the President has no discretion in terms of section 96 (2) of the Constitution which provides that he must appoint ‘in accordance with the advice of the’ JSC. The rejection of Mr Motumise’s name is therefore, in the opinion of the society, unconstitutional.”
Further to a recent advertisement, the JSC shortlisted and interviewed candidates for the vacancy of a High Court Judge that has been created by the retirement of Justice David Newman.
The executive secretary said the interpretation of the JSC and that of Khama is contrary to that of the LSB. The position paper adopted in 2011 explicitly stated that in the event any appointment process was undertaken contrary to the Position, litigation would be necessary to determine proper interpretation.
“...The Council of the Law Society, acting on Resolution of 13th December 2011 and in accordance with Section 61 of the Legal Practitioners Act, has resolved to institute review proceedings against the JSC and His Excellency the President of the Republic of Botswana.
In this regard a Statutory Notice has today been served on all affected parties and their legal representative, the Attorney General.”