09 Feb 2016

The Gaborone High Court has dismissed a case in which the Law Society of Botswana (LSB) was challenging the decision of the President not to appoint attorney, Mr Omphemetse Motumise as a High Court judge.

The Judicial Service Commission (JSC) had recommended Mr Motumise’s name to President Lt Gen. Seretse Khama Ian Khama for appointment to the bench, but declined to recommend him without disclosing reasons. In the law suit President Khama was listed as the first respondent while the JSC and Attorney General were listed as second and third respondents respectfully.

The applicants, who were the LSB and Mr Motumise, had argued that the President’s decision not to appoint Mr Motumise as a judge of the High Court be reviewed and set aside and that it be declared that the President was bound to follow and implement the lawful advice of the JSC on appointment of the High Court judges in terms of Section 96 (6) of the Constitution.
In addition, the applicants had declared that the JSC’s interviews of candidates for appointment as judges must be open to the public, and that the JSC must make public the outcome of its deliberations on the appointment of judges.

The applicants submitted that the JSC has the sole responsibility for deciding who should be appointed as judges of the High Court. They said the President does not enjoy any form of discretion to refuse or reject the advice of the JSC on which candidates should be appointed.

The applicants further submitted that the principle underlying his application is that the independence of the judiciary is foundational to constitutional democracy and is premised on the competence, credibility, integrity and impartiality of the judiciary.

The applicants also submitted that the JSC has been vested with a substantial public and constitutional responsibility to ensure such judicial independence, and is incumbent on them to exercise this power in an open and transparent manner, and in conformity with general principles of good governance.

In his answering affidavits, President Khama said his decision not to appoint Mr Motumise was not reviewable. Alternatively, if the decision was found to be reviewable, it was made in the proper exercise of his discretion under Section 96 (2) of the Constitution.

He further said he had “valid reasons for not appointing the second applicant as a judge of the High Court of Botswana, and I have been advised and verily believe that I am not obliged to furnish such reasons.”

He noted that in appointing a judge, he takes into account a broad range of material considerations, including matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary, and questions of policy.

He further noted that it would be inappropriate for him under such circumstances to disclose reasons for not appointing the candidate concerned, as such disclosure would be prejudicial to that person. He submitted that withholding of reasons in such circumstances would be in the interests of the candidate.

Handing down judgement, Justice Singh Walia said the applicants’ argument that the President’s role in the appointment of High Court judges was mere formality was flawed. He said if the JSC was intended to be the sole appointing authority, why then bring in the President at all.          

He said the President has some absolute  and tempered powers as he has exclusive power to make the following appointments; ministers and assistant ministers, attorney general, DPP, Chief Justice, President of the Court of Appeal, lay members of the JSC and members of the Public Service Commission.

Justice Walia said the application for an order that the President’s decision not to appoint Mr Motumise as a judge of the High Court be reviewed and set aside, was refused. The application for an order declaring that the President was bound to follow and implement the lawful advice of the JSC on the appointment of High Court judges was also refused.

The application for an order declaring that the JSC’s interviews candidates for appointment as judges musts as a rule be open to the public was refused, he said. The court also refused the application for an order declaring that the JSC must make public the outcome of its deliberations on the appointments of judges. The application was also dismissed with costs. Ends