• Blames informants for malicious rumours
• Says the President should tell him the information he has on him
Veteran Attorney Omphemetse Motumise has hit back at President Ian Khama, saying the reason why the latter had refused to appoint him to the High Court bench is because he might have heeded hearsay and malicious rumours.
In papers filed before the high court in Gaborone on Friday, Motumise requested the court to compel the president to disclose reasons why he had declined to appoint him to the bench despite recommendation by the Judicial Services Commission (JSC). “The first respondent does not disclose his reasons for rejecting the advice of the JSC. I submit that if the facts and the law favour him in this respect he would not hesitate to disclose such reasons to the JSC and to me,” Motumise submitted.
Khama said in an answering affidavit filed last month 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 Motumise, although the President implies that disclosing his reasons might bring embarrassment to him (Motumise), he could disclose it to him and afford him an opportunity to defend himself and to contest the veracity of any adverse information he holds against him. “He does not explain why as a citizen of this country, I am not entitled to that fundamental constitutional right. What is embarrassing and humiliating is the very suggestion that the president might be holding embarrassing information about a citizen,” Motumise said in his submissions.
Motumise further submitted that it is quite likely that a person in the position of the President might be reluctant to disclose such information because he had acquired it outside the legal process or its status is no more than malicious rumour, hearsay or contrived information. “A court of law, I would submit, cannot be called upon to accept that an official duty was performed duly, lawfully and properly in the absence of reason,” said Motumise, adding that to deny him reasons is to deny him due process and the protection of the law.
According to Motumise, since he does not personally interact with the President and he states that he has reasons for rejecting advice to appoint him, he could only have derived any information about him from informants, and since the President cannot explain why he cannot disclose his informants, the reluctance to disclose reasons to him is borne out of fear of placing on record the identity and modus operandi of the informants who would be operating outside of the law by placing citizens under surveillance to collect allegedly private information. “I look to this honourable court for protection against the averments of the first respondent,” said Motumise.
Although he acknowledged that the president is correct in the assertion that there should be checks and balances between the judiciary and the executive he submitted that it cannot be correct that only the President can check and balance the judiciary while it cannot in turn review the exercise of his powers. Motumise further questioned why Michael Motlhabi (the JSC secretary) does not explain in his affidavit why the JSC not being privy to the president’s reasons for not allowing its advise, is unable to defend such advice.
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 argued 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.
The Law Society of Botswana is accompanying Motumise as the first applicant in the matter while President Ian Khama is cited as the first respondent, the Judicial Service Commission cited as the second respondents while the Attorney General is cited as the third respondents.