06 Sep 2020

The appointment of judges is a prerogative of the President, in terms of the country’s Constitution, Assistant Minister for Presidential Affairs, Governance and Public Administration, Mr Dumizweni Mthimkhulu has said.

Answering a question in Parliament on September 4, Mr Mthimkhulu said Judge President in terms of Section 100 (1) of Constitution and other Justices of Appeal in terms of Section 100 (2) were also appointed by the President with advice of the Judicial Service Commission (JSC).

MP for Selebi Phikwe West, Mr Dithapelo Keorapetse had asked the minister to brief Parliament on the appointment of Judges, independence, integrity and public confidence in the Court Of Appeal (COA).

He also asked the minister to further explain what he termed the ‘archaic,’ unfair and undemocratic system of appointment of the COA judges, demographics of the bench (age, gender, nationality ) and details of Judges on contracts and the history of their contracts.

Mr Keorapetse had also asked the minister to update Parliament on when the reform of COA would commence.

Mr Mthimkhulu said in terms of Section 4 (1) of the Court of Appeal, Parliament had set a number of judges of the Court of Appeal at 12.

Furthermore, he said, currently, there were nine members made up of eight male judges and one female Judge.

He also stated that there were six citizen judges aged 61, 64, 64 and 72, while the one aged 72 was on his first contract. Furthermore, he said there were two judges aged 73 and 74 years hired on second contract.

Parliament also learnt that there were two South African Justices aged 67, on first contract and a 72-year-old one on second contract, while the Scottish Judge aged 78 was also on second contract.

Mr Mthimkhulu said persons who become Judges of the High Court of Appeal, have almost invariably, served as High Court Judges, the reason being that the nature of the job required experience.

The assistant minister further stated that Botswana like other countries availed her Judges elsewhere and engaged eminent retired judges from outside.

“Botswana Judges serve, or have served in such countries as Papua New Guinea, Lesotho, Swaziland, Namibia and Seycheles and for now, the JSC has determined that the three eminent jurists from other countries who serve on court, added value and objectivity to the jurisprudence,” he said.

When arguing his questions, Mr Keorapetse was of the view that the system for appointment of judges in maintaining judicial integrity, independence and public confidence in the judiciary was important.

He argued that the appointment of judges was an important aspect of judicial independence which required 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,” he argued.

He also argued that the Constitution provided 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 and that it was not stated that the President must appoint them in accordance with the advice of the Judicial Service Commission (JSC).

He also reasoned that unlike the High Court, the Court of Appeal, does not advertise vacancies that occur and interview candidates for judgeship.

He also contended that currently the Judge President and one or two judges had long reached the retirement age of 70 but they have had their contracts renewed twice, or more, for three or so years unnecessarily, adding that there were Batswana who could serve in such positions even more competently.

Mr Keorapetse further said that if the executive, or any individual or entity, enjoyed an exclusive privilege in selecting judges, a risk always existed of misuse of the power of appointment, and that sometimes political or other considerations might prevail over the merit criteria for appointments BOPA