15 Mar 2018

The Judicial Service Commission (JSC) has advertised four positions of Judges of the High Court during the month of February 2018, defence, justice and security minister, Mr Shaw Kgathi says.

Minister Kgathi also said until recently no application or declaration form was required to be completed by persons aspiring to become Judges of the High Court.

Furthermore, he said the JSC recently introduced a new application form in line with “the Motumise judgement” through which detailed information was now required for the selection of suitable candidates for judgeship.

“The new requirements for judges are in line with Section 103 (4) and 5 of the Constitution and judgement in the case of Law Society of Botswana and Another vs the President and Others (“The Motumise judgement”) which articulated the recruitment process of judges.”

Minister Kgathi explained that the Court of Appeal in that judgement stated among other things that it was the JSC as an independent body which had the responsibility to conduct background checks of candidates for the judiciary, and to choose who was to be appointed as judge.

He told Parliament that paragraph 71 of the “Motumise judgement” stated among other things that “to be able to perform its duties, the JSC, through its members, will of necessity have to carry out background checks and may in fairness to the applicants have to place before the applicants certain probing questions some of which may be uncomfortable.

On the other hand, he said  applicants for the position must understand the public importance of the office they seek to hold, and of the onerous responsibility resting on the JSC.

“Sensitivity in this regard may require that the applicants not only answer certain questions in response to the advertisements, but also sign authorisation and consent forms for purpose of facilitating background checks, and at the oral hearings of the applications to give the affected applicants the opportunity to comment on any findings that may adversely affect the applicant’s suitability for appointment.”

He said it explained why the JSC has and will be introducing new requirements for the recruitment of judges.

In the meantime, he said sitting judges would not be subjected to the new requirements because the “Motumise judgement” was not retrospective in application, and that sitting judges were subjected to requirements that obtained at the time of their recruitment.

Furthermore, the minister said “the new application process does not offend the equality principle. Confirmatory vetting of candidates recommended by the JSC after interviews has historically been done and will of necessity continue to be done.”

Meanwhile, Mr Kgathi said he was only aware of Section 103 (4) and (5) of the Constitution which empowered the JSC to independently exercise its functions and regulate its own procedure.

“This procedure may be adapted from time to time to enhance its effectiveness. One such change is the advertising of judge of the High Court vacancies and most recently, the introduction of the judges application form. The recently introduced application form does not violate any constitutionally entrenched rights,” he said.

Parliamentwas further informed that in the spirit of the Court of Appeal “Motumise judgement,” and as an initial measure, “the JSC now requires applications for judgeship to sign a confidential binding declaration” on matters which could affect their suitability for appointment, and for such applicants to authorise the JSC to obtain confidential information from their bankers, doctors, previous employers, government agencies like BURS and Botswana Police Service among others.

That, he explained, was meant to ensure that only suitable candidates were appointed to hold the onerous responsibility of judge of the High Court. “This process is imperative as once appointed, a judge’s tenure of office is constitutionally protected and as such a judge would usually sit until retirement,” he said.

Currently there are no regulations governing the procedure for appointing judges and the JSC is actively considering the introduction of such regulations.

The MP for Selebi Phikwe West, Mr Dithapelo Keorapetse had asked the minister if the JSC had advertised positions of High Court judges, and also to confirm whether there was a new declaration form/regulations/criteria to be used by the JSC and its members for purposes of screening, shortlisting and confirming the antecedents of candidates for judgeship of the High Court or Court of Appeal.

The minister was also asked whether the new requirements by the JSC were in terms of the Constitution having regard to the judgement of Omphemetse Motumise or the Law Society of Botswana versus the President.

Mr Keorapetse also wanted to know whether the sitting justices were to be subjected to the same structures, and if not, to explain why they were being exempted, and also whether the new regulations did not offend the equality principle of the Constitution in treating new applicants differently.

The legislator also asked the minister whether the new provision of the Constitution that the JSC could regulate its own procedure and whether other law enforcement bodies and other private or public agencies had roles in terms of the new regulations to assist the JSC in determining the suitability of candidates. ENDS