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 (CoA) judges.
In his founding affidavit, the national organising secretary of the NALCGPWU, Johnson Motshwarakgole, argues that the appointments of the CoA justices 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 Justices of Appeal.
“The applicant contends that Section 4 is constitutionally invalid and the current practice of appointing Justices of Appeal is unlawful and as consequential relief, seeks declaratory relief against all the Justices of Appeal except the Judge President [Ian Kirby] whose office is created by the Constitution,” said Motshwarakgole.
Motshwarakgole also wants the constitutionality of the practice of appointing the same Justices of Appeal to more than three years looked into.
He said security of tenure is one of the universally recognised hallmarks of judicial independence. This is recognised by Section 101 (2) of the Constitution, which provides that a Justice of Appeal may only be removed from office for misbehaviour. “Section 101 (1) (II) provides that a person may be appointed as a Justice of Appeal for a fixed period of three years notwithstanding that he/she has attained the age of 70. The provision does not provide for a renewal. It follows that a Justice of Appeal may only be appointed to one three year contract.”
He continued: “The renewal of a fixed term contract at the whim of the President is inimical to judicial independence as the President may renew the fixed term contracts of those Justices of Appeal who deliver judgments that he approves of and not renew contracts of those Justices of Appeal whose judgments he does not approve of. This is of critical importance as the JSC [Judicial Service Commission] has recently stated under oath in the matter concerning the rejection of its advice on the appointment of Mr Omphemetse Motumise as High Court Judge, by the President, that is constitutionally permissible for the President to disregard the JSC’s advice on judicial appointments”.
Motswarakgole said the JSC’s position as regards its role during the process of appointment, coupled with Khama’s assertion under oath in the Motumise matter that he makes socio-political considerations in deciding whether to accept the advice of the JSC has created great anxiety for the applicant. “The applicants as the union that represents more public officers than any other, is constantly at loggerheads with the executive and therefore requires, as it is constitutionally entitled to, that its matters be adjudicated over by men and women who are in a position to do so without fear of favour,” said Motshwarakgole.
The applicant’s anxiety is heightened by the lack of transparency in the appointment of Justices of Appeal. He added that Botswana has a history of certain Judges of the High Court being given favourable treatment by the Executive and it is not clear as to whether or not this practice extends to Justices of Appeal.
The applicant stated that it has an upcoming appeal hearing concerning the constitutionality of the prohibition of all employees of the Directorate on Corruption and Economic Crime (DCEC) from unionising. “The applicant cannot reasonably expect a fair hearing as envisaged by the Constitution, from a panel of Judges constituted by persons whose contracts are either renewed, or not renewed, at the whim of the Executive.”
The other respondents are the JSC, the Speaker of the National Assembly, the Attorney General, Justices Elijah Legwaila, Isaac Lesetedi, Monametsi Gaongwalelwe, John Foxcroft, John Cameron commonly known as Lord Alistair Abernethy, Arthur Hamilton and Craig Howie. The case has been allocated to Justice Abednico Tafa.