10 Nov 2017

Professor Bojosi Otlhogile has differed with the Court of Appeal judgement that President Lt Gen. Dr Seretse Khama Ian Khama is not the appointing authority of judges of the High Court.

Presenting a paper titled: Selection of Judges, Constitutional Power and Accountability at the University of Botswana recently, Professor Otlhogile said the President still remained the appointing authority and not the Judiciary Service Commission (JSC).

Professor Otlhogile supported the state that the judgement by the Court of Appeal left a void instead of solving the case, and that the President still remained the appointing authority.

He also noted that the refusal by the President to accept Omphemetse Motumise was not the first to have happened in Botswana.

The Court of Appeal led by Justice Isaac Lesetedi reviewed and set aside President Khama’s decision to refuse to appoint Motumise to the bench as a judge following the recommendation  of the JSC.

He noted that it dated back to 1967 when the first president, Sir Seretse Khama declined to accept the appointment of some judges from Zimbabwe to the same bench a few years after independence.

In addition, Professor Otlhogile explained that the constitution of the country also gave the President the discretion to refuse or accept any recommendation made by the JSC.

He added that any recommendation to the President by the Judiciary Service Commission was not binding to the President, but that it was unfortunate that the law was silent as to why it was like that.

He said the main reason why it was not binding was because there was a collaborative process that was in place which was meant to advise such an individual.

On other issues, Professor Otlhogile said there were two aspects to the judiciary selection both of which had constitutional implications and invariably involved the exercise of power and accountability.

First is the selection of people to be appointed judges and second is the selection of judges to hear particular cases in higher courts.

The former vice chancellor of the University of Botswana further explained that since independence, Botswana has followed the tap on the shoulder until recently when the country moved to the merit based model.

He explained that the tap on the shoulder model depended on the relationship between the appointing authority and the person being appointed.

Meanwhile, senior lecture at the University of Botswana’s law department, Dr Bonolo Dinokopila said the judiciary has over the years played a central role in fostering constitutional democracy in Botswana through the adjudication of disputes.

He said the courts adjudication over human rights issues, their approach to the principles of international law, adherence to the rule of law and separation of powers, participation in the electoral process and judicial review.

Dr Dinokopila further stated that the strength of the judiciary lied in the fact that there was evidence of institutional growth and consistency in the approach to the issues discussed above.

“This is not to say that the judiciary is perfect, but it is to say that the judiciary’s contribution to constitutional democracy is indisputable. It is perhaps the latest cases, Attorney General of Botswana vs Umbrella for Democratic Change and others and the Law Society of Botswana and another vs the President of Botswana and others (The Motumise case), that confirmed the positive role and contribution of the judiciary to Botswana's constitutional democracy,” he added.

He said it should be admitted that the judiciary was operating within the boundaries of a limiting constitutional framework.

“Botswana’s 1966 constitution has had a negative impact on the extent to which the courts can protect the rights of the citizenry for example. The absence of provisions relating to socio-economic rights for example has affected the level of their protection and the extent to which the courts may offer meaningful remedies to the marginalised members of the community,” he said.

However, he explained that a lot was needed to be done by the judiciary to ensure that there was proper adherence to principles of constitutional democracy.

In other issues, Dr Dinokopila said the adjudication of disputes by the courts has not been without challenges, as the courts had in some instances been accused of failing to fulfil their mandate and were sometimes viewed with suspicion by the public.

He said the appointment of judges should be reviewed so as to ensure that the process was insulated from external influences and would lead to a more transparent appointment of judicial officers.

“The composition of the JSC must be reviewed so as to ensure its compliance with international standards relating to the composition of such institutions. The independence of the judiciary might be enhanced by ensuring its financial autonomy which can be achieved by ensuring that the judiciary draws its funding from the country’s consolidated fund. Once the judiciary is able to control its budget, it should be able to allocate its resources in a manner that is consistent with their vision and needs,” he said. ENDS