03 Apr 2022

 The Judicial Service Commission (JSC) is empowered by Section 103 (5) of the Constitution to regulate its own procedure.

Responding to a question in Parliament recently, Vice President Slumber Tsogwane said the procedure was adapted from time to time to enhance its effectiveness.
He added that such position was emphasised in the Court of Appeal Case of the Law Society of Botswana and another versus The President and others (The Motumise Judgement).
“As an example of adaptation in the appointment procedure was the introduction several years ago, of advertising vacant positions of High Court Judge.

Prior to this adaptation, judges were approached through a head-hunting mechanism and offered appointments as judges of the High Court,” he said.
He said the recent introduction of a comprehensive sworn application form was another such change together with the introduction of psychometric assessment.

In December 2018, he said the JSC introduced the new appointment procedure, where a Call for Expressions of Interest would be advertised annually with a view to encouraging prominent and outstanding lawyers to indicate their willingness to serve on the bench, when a vacancy occurred.

He said judicial appointments were important, thus care must be taken in the public interest to ensure that only those whose professional and private lives were above reproach and outstanding performers were appointed.
He said the JSC considered that if a candidate did not wish to be transparent in all respects then their appointment would not be safe, adding, ‘all information provided in the application forms is provided in strictest confidence and no one who is suited for appointment should have any fear of making full disclosure, after which the short-listed applicants will be interviewed and the successful candidate will be selected’

Furthermore, he said the JSC introduced the new appointment procedure on the appointment of judges of the High Court and created a register to enter the names of eligible lawyers interested in being considered for the position of judge of the High Court.
He said the register was kept by the secretary of the JSC and the commission would, at the beginning of every year, call for expressions of interest in the appointment of judge of the High Court by way of external advertisement.

Each eligible lawyer, who responded to the call for expressions of interest, he said, was required to submit their curriculum vitae to have their name added to the register, after which the commission would refer to the register and shortlist names of suitable candidates after the closing date of the advertisement period and whenever a vacancy arose.
He said the short-listed candidates would be contacted by the JSC and invited, if available, to formally apply for the vacant position by submitting application forms together with the required annexure to the secretary of the commission, and those who applied would be interviewed under oath and scored by the commission.

“Members of the public were advised that the new procedure would be implemented by the commission with effect from January 1, 2019.
The call for expressions of interest will be open each year for a period of three months from the date of the advert, so that interested and qualified persons may add their names to the register,” he said.
Furthermore, Mr Tsogwane said the JSC noted over the years that senior, prominent and outstanding lawyers were not applying for vacant positions as they were successful in their own right and did not need to apply for a job, but rather serve the country as judges if selected for interview by the JSC.

“The new procedure sought to combat this issue by introducing the Call for Expressions of Interest, a procedure that ensured that the JSC had a list that included prominent and outstanding lawyers to shortlist from, which did not involve them applying.”
On the appointment of justices of the Court of Appeal (CoA), Mr Tsogwane said they were appointed by the President in terms of the Botswana Constitution.
Thus, he said the Judge President was appointed in terms of section 100 (1) of the Constitution, while other justices of the CoA were appointed in terms of section 100 (2), by the President as advised by the JSC.

He said the court made it vividly clear in the Motumise case that ‘acting in accordance with the advice of the JSC meant that the President was not at liberty to refuse the recommendations of the JSC for the appointment of a judge unless he had cogent reasons for the refusal, hence the JSC was the appointing authority.”
He said in that case the former President had declined to endorse the JSC’s recommendation to appoint Mr Motumise as judge of the High Court.

The vice president further indicated that in terms of Section 103 (4) of the Constitution, the JSC was not subject to the direction or control of any other person or authority in the exercise of its function.
Also in terms of Section 103 (5), he said the commission was empowered to regulate its own procedure, hence it had followed the same procedure for the appointment of justices of CoA since independence and after proper consideration the JSC then made its recommendation to the President.

He said once appointed, a judge would serve until they attained 70 years, which in terms of Section 101 (1) was the retirement age for judges of the CoA.
“Notwithstanding the retirement age, however, a judge may be appointed for a fixed three-year term, which is renewable without limits.
Parliament set number of judges of the CoA at 12 and currently there are nine members made up of six males and three females, six of whom are citizens,” he said.

He informed MPs that those who become justices of the CoA had, almost invariably, served as High Court judge, given that the nature of the job required experience.
Further, Mr Tsogwane said the Chief Justice was appointed by the President in terms of Section 96 (1) while appointment of president of the CoA was also done by the President in terms of Section 100 (1) of the Constitution.

However, he said the two appointments executive and did not involve the JSC.
Meanwhile, Mr Tsogwane expressed hope that the review of the Constitution would bring about progressive change while building on the successes and closing some of the emerging gaps.
The vice president was answering a question asked by Member of Parliament for Selebi Phikwe West, Mr Dithapelo Keorapetse, who wanted him to explain judicial appointments in relation to High Court and CoA judges, Chief Justice and Judge President. ENDS