By: Khonani Ontebetse
High Court Judges and lawyers representing President Ian Khama and those representing Law Society of Botswana and prominent lawyer Omphemetse Motumise locked horns on Monday on key issues such as the interpretation of words used in the Constitution in relation to the appointment of judges and whether the President’s prerogative powers should be subjected to a review.
The case was heard by Justice Abednigo Tafa, Justice Lakvinder Walia and Justice Phadi Solomon Advocate Anwar Albertus who was instructed by the Attorney General represented President Khama while Advocate Wim Trengove who was instructed by Tshiamo Kewagamang Attorneys represented Law Society of Botswana and Motumise.
Trengove was the first to draw blood when he argued that the President is bound to follow the advice of the Judicial Service Commission (JSC) adding that other Commonwealth countries use the same style and language as Botswana.
He said a Constitutional dilemma should not arise since the President should appoint a judge in accordance with the recommendations of the JSC as provided for in the country’s Constitution.
“He must do so because that is what the Constitution says he shall appoint in accordance with the recommendation of the JSC,” said Trengove.
He argued that when the President acts in accordance with the recommendations of the JSC, it instils confidence in the public that there is impartiality in the appointment of judges.
“The public is given confidence that the appointments are made on an impartial basis,” he said.
Trengove said should the President reject a candidate recommended by the JSC, that on its own offends against the Constitution of the country. He said the argument that the President’s decision is not reviewable is an irrational one.
“Botswana is a Constitutional Democracy and not a monarchy; the exercise of all public power is reviewable for rationality,” argued Trengove. At this juncture, Tafa brought the lawyer’s attention to the recent decision of the Court of Appeal which states that the President’s decision is not subjected to a review in matters of high policy, such as declaration of war or of a state emergency, or the making of appointments to Cabinet or to other high offices.
Solomon also wanted Trengove to tell the court when the President’s prerogative powers should be subjected to a review. Trengove explained that if there is suspicion of irrationality the exercise of the President’s prerogative powers should be reviewed.
For his part, Albertus argued that the JSC is not vested with powers to appoint judges and it is not even an appointing authority.
Tafa sought to know if Khama’s lawyers had come across a decision of the court that interpreted “in accordance with,” to which Albertus replied in the negative.
Albertus said the President has the prerogative power to reject recommendations from the JSC.
“The appointment of judges is of high importance and it cannot be reviewed. The President would not be called upon to disclose his reasons for not appointing a judge,” he said. He added that there is no legitimate expectation for someone to be appointed a judge because no person has a right to be a judge.
Asked by Tafa and Walia if Motumise did not have a legitimate expectation since he was recommended by the JSC, Albertus said there was no undertaking made to make Motumise a judge adding that the recommendation by the JSC was never communicated to Motumise. Solomon also interjected and suggested that Motumise was invited for an interview and wondered if that did not make him to have a legitimate expectation to which Albertus answered in the negative. Tafa also suggested that Motumise would have a legitimate expectation if he was informed that he had been recommended by the JSC and Albertus agreed with him. The lawyer said the President’s decision to appoint judges cannot be subjected to a review and it cannot also not be said to be irrational.
Tafa further also sought to know what Albertus’ opinion is on the fact that unlike the President’s decisions which are not be reviewable such as declaration of war or of a state emergency, or the making of appointments to Cabinet or to other high offices, in relation to the appointment of judges, “the Constitution says he should do that in accordance with the advice of the JSC.”
He also noted that the Constitution states that “the President shall appoint and not he may” to which Albertus replied that the “Constitution is not clear on that.” Replying, Tafa said that “we will make it clear.”