President Ian Khama has refused to state reasons for rejecting the recommendation of the Judicial Services Commission (JSC) to appoint veteran lawyer Omphemetse Motumise as a high court judge, arguing that such could be prejudicial to the latter.
Khama said in an answering affidavit filed on Wednesday before the High court that in rejecting Motumise’s nomination for the bench he considered matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary, and questions of policy. He said all of these involve information to which the JSC does not have access and would not be properly equipped or mandated to evaluate and as such to demonstrate that his power to appoint judges is not bureaucratic administrative function but rather an executive power that does not fall to be reviewed by a court.
According to Khama, in considering recommendations from JSC, there are occasions when it would be inappropriate to appoint a nominee, where the reasons for doing so "will adversely reflect on the integrity, character and reputation of the relevant nominee. In these circumstances, questions of transparency are outweighed by the protection of the privacy of the individual candidates." He said such disclosure has the potential to scare away the best candidates from making themselves available for judicial appointment.
"I have valid reasons for not appointing (Motumise) as a judge of the High Court of Botswana...(but) I am not obliged to furnish such reasons," said Khama.
Khama argues that his decision is not reviewable by court as he was exercising his executive powers, and alternatively should court find otherwise the court should consider that he has discretion under Section 96(2) of the Constitution to decline to appoint candidates recommended for appointment by the JSC as judges of the High Court. "Insofar as the discretion reposed in me is concerned, I exercised that discretion duly, properly and lawfully," he said.