With the recent Court of Appeal (COA) judgement to set aside the High Court judgement that the President was not bound to follow and accept the Judicial Service Commission (JSC) recommendation to appoint Attorney Omphemetse Motumise, the President must now appoint him to the bench. It has since emerged that the President failed to provide reasons in his affidavit to the COA for declining to appoint Motumise notwithstanding the JSC recommendation to do so. It has also emerged that Motumise was the best candidate in the interview process hence the recommendation to the President to appoint him. In discussing this judgement, so many issues cloud the refusal to appoint. I will discuss them hereunder. Will he finally appoint him now that the COA has emphatically pronounced that his failure to do so is unconstitutional and by extension unlawful? Whether Justice Alastair Abernathy was cruel or succinct, he said “In my opinion, on a proper interpretation of Section 96(2) the President’s power to appoint these judges is no more than a formal power and the substantive power lies with the Judicial Service Commission (JSC). The President accordingly acted unconstitutionally in my opinion in declining to appoint the second appellant to the office of a Judge of the High Court”. If court judgements and orders were firstly religiously adhered to, and equally and religiously so implemented, this question wouldn’t arise because the obvious would be the case. Secondly, if the rule of law was conclusively the defining imperative under which the State is governed, this question wouldn’t also arise. Records are there to indicate that the executive and by extension the President picks and chooses which judgements and court orders to implement and which ones to deliberately ignore. I have always referred to the High Court judgement that directed that the deportation of two Ugandan refugees who had their other matter before the same court should be stayed until it is disposed of. As is public knowledge, this order was never complied with. Those refugees were deported and you can imagine what pain they are undergoing if they are still alive. So on the basis of picking and choosing which judgements to comply with, it is safe to suggest that Motumise won’t be appointed until and unless the COA is further asked to expressly direct that he be so appointed. Even if the COA so expressly directs, the President will do so albeit grudgingly given this judgement. But why did the President refuse to appoint Motumise in the first place?
Before answering this question, let me show that in some instances, substantive and acting judges have been appointed ‘in accordance with the advice of the JSC’. Botswana Daily News online edition dated 2 December 2015 reported that ‘President Lt General Seretse Ian Khama in accordance with advice of the Judicial Service Commission has appointed a substantive judge and two acting judges to replace the four recently suspended judges of the High Court’. It all started with the words ‘acting in accordance with the advice of the Judicial Services Commission’ where the President was of the view that he could appoint a judge not in accordance with advice of the JSC. Because of this wrong view as confirmed by the COA, he went ahead to ignore the advice and declined to appoint Motumise. The Law Society of Botswana (LSB) which brought the appeal on behalf of their member in this case Motumise held that the President was duty bound to appoint him on the basis and strength of the JSC advice and also on the basis and strength of his outstanding performance during the interview. The purpose of an interview is to find one amongst equals and why would Motumise, having emerged as one such individual, be denied probably his first and last opportunity to the bench on imagined reasons?
As indicated above, the decision was based on the President’s own undisclosed reasons which consequently lead to speculation. The issue of executive minded judges which has been a topical discussion in recent times becomes the immediate and obvious speculation. The judge who said that he was loyal to the President because he had appointed him during his time of desperation is still vivid in our minds. The fact that the President’s reasons could not be disclosed to the COA let alone Motumise himself, gives credence to the argument that they don’t exist. Motumise is quoted by The Weekend Post online version dated 24 August 2015 to have said “Since I do not personally interact with the President and he avers that he has reasons for rejecting advice to appoint me, he could only have derived any information about me from informants. The first respondent (President) does not explain why he cannot disclose his informants to me and allow me to face them in my defence. The reluctance to disclose reasons to me, if any exist, I submit is borne out of fear of placing on record the identity and modus operandi of the informants who would be operating outside the law by placing citizens under surveillance to collect allegedly private information”. What are the implications of this judgement going forward?
It simply means that from now onwards, every judge who would have been interviewed by the competent JSC and who would have been recommended would be appointed without further ado. Legal scholars tell us that the only delay could be where the President is in possession of serious and credible information about the applicant which could render appointment undesirable and not in the public interest. They say such occurrences are rare and far in between. That said; it may not be as smooth as it is suggested. It must be borne in mind that the JSC has been of the view that its role in the judicial process of selecting a suitable judge is just that – that is as soon as they have forwarded the name to the President, they do not have any further role in ensuring that the selected candidate is indeed duly appointed. If this was the case, they would have ensured that Motumise was duly appointed as per the results of the interview. If in future the JSC recommends someone for appointment and the President declines to endorse like in this particular case, what role would it play to ensure that the appointment is made? Would they approach the courts to say that the President is refusing to endorse their decision? Or, is the JSC going to be silent whereupon a process similar to Motumise’s unfolds? I am asking these questions whose answers I regrettably don’t have, against the backdrop that the executive has continued unabated to ignore court judgements and orders. The COA judgement on the subject matter could be one such. When all is said and done, the COA judgement that Motumise was unfairly and deliberately denied an opportunity to serve the judiciary at a level next to the highest is a land mark one. While the judgement did not expressly order the President to appoint him a judge, the inference is that this should be the case. Whether this will be ignored like others before it begs us to watch events unfold. My gut feeling tells me that Motumise may very well prepare for another trip to the COA. Judge for yourself!