4th September 2020
Sello Motseta
The Assistant Minister for Presidential Affairs, Governance and Public Administration has strongly rebuked suggestions by opposition members of parliament that Botswana’s judiciary remains the sole preserve of aging white males long after the colonial process ran its course and that the Botswana led BDP Government is undermining progressive efforts to ensure more indigenous Batswana play a formative role in the development of our jurisprudence.
Dumezweni Mthimkhulu, Member of Botswana Parliament – Gaborone South Constituency and Assistant Minister for Presidential Affairs, Governance and Public Administration, said “The Judge President is appointed in terms of section 100(1) of the Constitution while other Justices of Appeal are appointed in terms of section 100(2) by the President acting in accordance with the advice of the Judicial service Commission(JSC).”
He said, “In terms of section 4(1) of the Court of Appeal, Cap 04:01 Parliament has set number of judges of the Court of Appeal at 12. Currently there are 9 members made up of 8 male justices and 1 female justice. We have 6 citizen Justices of ages 61, 64, 64, 67. The one with 72 years is on first contract. There are also 2 Judges of 73 and 74 years who are on second contract.”
According to officials there are also 2 SA Justices aged 67 on first contract and the other who is 72 who is on his second contract and finally there is 1 Scottish Judge aged 78 on second contract. Persons who become Judges of the Court of Appeal have almost invariably served as High court Judges, the reason being that the nature of the job requires experience.
Executive members of the current administration contend Botswana like many other countries avails its Judges elsewhere and engages eminent retired Judges from outside. Batswana Judges currently swerve or have served in such countries as Lesotho, Swaziland, Namibia, Papua New Guinea and Seychelles. For now the Judicial services Commission(JSC) has determined that the 3 eminent jurists from other countries who serve on pour court add value and objectivity to our jurisprudence.
This follows allegations that the Court of Appeal is effectively a privatized public institution that operates secretly. Opposition members of parliament believe it is run unilaterally by Justice Ian Kirby, its President who has close personal and historical ties to former President Lieutenant General Ian Khama Seretse Khama, who is now patron of the opposition Botswana Patriotic Front(BPF).
Kirby 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 COA judge.
“The recruitment to the court is not based on merit; there is no known criteria; no advertisements of vacancies,” charged Dithapelo Keorapetse, Member of Parliament(MP) for Selebi Phikwe West.
Keorapetse stressed that the Constitution of Botswana provides that the Chief Justice (Section 96(1)) and the President of the High Court of Appeal (Section 100(1)) shall be appointed by the President.
“It is not stated that the President must appoint them in accordance with the advice of the Judicial Service Commission (JSC),” he argued.
Keorapetse, said “Other justices of the High Court and the High Court of Appeal are appointed by the President in accordance with the advice of the (JSC). Members of the JSC are all presidential appointees, save for one member from and nominated by the Law Society of Botswana (see Section 103(1)).”
According to the fiery legislator unlike the High Court, the Court of Appeal, 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 our case, there is no known written and published policy of appointment. Recruitment seems to be based on friendship, dislike or prejudice.
“To make it to the Court of Appeal you must be approved, it would seem, by the Judge President and may be the Chief Justice. And I say may be because even him does not appear to have any influence on the matter even though he heads the judiciary. This kind of arrangement is akin to corruption or is in any event conducive to corruption. Best practice and principles of good governance require a transparent and merit-based process of appointing judges. It is necessary that the process of appointing judges be open and visible to the public and in that sense accountable,” said Keorapetse.
This debated hinged on the importance of the system for appointment of judges in maintaining judicial integrity, independence and public confidence in the judiciary. The appointment of judges is an important aspect of judicial independence which requires that in administering justice, judges should be free from all sorts of direct or indirect interference or influence.
The principle of the independence of the judiciary seeks to ensure the freedom of judges to administer justice impartially, without any fear or favour. This freedom of judges has a close relationship with judicial appointments because the appointment system has a direct bearing on the impartiality, integrity and independence of judges as well as public confidence in the judicature.
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. Unnecessarily opposition MP’s argue because there are Batswana who can serve in their positions even more competently. This practice of reaching retirement age and not retiring is very bad. It steals opportunities for young Batswana judges to serve in the Court of Appeal.
“A judiciary whose judges are appointed not on merit, but on partisan or political or other considerations other than known merit criteria eventually becomes a lapdog of the executive or the appointing authority and lacks credibility amongst the people. Things need to change at the apex court. There are even concerns that anticipated vacancies are reserved for known friends; basically, booked in advance. This rot must stop now. There are judges of the High Court who merit ascending to the Court of Appeal but they can’t because one-man controls who enters and who doesn’t,” fumed Keorapetse.
Keorapetse argued that the Court of Appeal(CoA) does not represent the demographics of the nation; there is a disproportionate number of white judges, relative to our population.
“The court of appeal is a public institution and not a private entity. It must lead on issues of merit and openness precisely because it is a court of justice. Regrettably over the years, members of the JSC, even indigenous Batswana have acquiesced in this colonial practice of undermining the ability of our people to run their courts. They have remained mum and voiceless, only interested presumably in sitting allowance but not how crucial decisions are made,” said Keorapetse.
