NATIONAL CRISIS: ‘Court of Appeal Judges unlawful’

SHARE   |   Monday, 14 September 2015   |   By Ditiro Motlhabane
Kirby and Motshwarakgole Kirby and Motshwarakgole

Manual Workers Union has thrown a spanner in the works of an already ailing judiciary by seeking to have the appointment of all Court of Appeal judges by President Ian Khama unconstitutional, unlawful and therefore invalid. 

The judiciary, which has become synonymous with controversy, faces a major test after questions were raised midweek about the constitutionality of the appointment of court of appeal judges and their term office. Now President Ian Khama and the seven judges on the CoA bench have been dragged to court by National Amalgamated Local and Central Government and Parastatal Workers Union (manual workers union) questioning the legality of their appointment. The lawsuit filed on Thursday raises three issues of great constitutional importance, which threatens to throw the country into a constitutional crisis and throw the judiciary into disarray. Should manual workers have their way, the country will be thrown into a constitutional crisis of major proportions, as the appointment of all CoA judges is declared a nullity, effectively further nullifying all the judgements they have passed.

Manual workers National Organising Secretary Johnson Motshwarakgole questions, through an affidavit filed late Thursday, the constitutional validity of section 4 of the CoA Act in so far as it delegates to the President Parliament's constitutional powers to determine the number of judges of the court. The union also questions the constitutionality of the practice of appointing the same justices of appeal to more than one three-year term; He further contends that Section 4 is constitutionally invalid and the current practice of appointing justices of appeal is unlawful and as consequential relief seeks declaratory relief against all the judges of appeal except for the judge president whose office is created by the constitution.
The offending Section 4 provides that the CoA shall in addition to the judges provided for under the constitution, consist of such number of justices of appeal as the President of Botswana may consider necessary to appoint. Contrary to such provision Motshwarakgole argues that Section 92 of the Constitution clearly spells out that the number of court of appeal judges should be prescribed by Parliament. "Parliament has never exercised its power to prescribe the number of Justices of Appeal and has in the CoA Act delegated to the President the power to determine the number.

Motshwarakgole submits that such delegation is constitutionally invalid as the powers to determine the number of judges is the exclusive preserve of Parliament as provided for by the Constitution. He says no provision is made in the Constitution, either expressly or implied, for the delegation of such an important constitutional duty. He argues; "Not only is the delegation bad in law, it essentially amounts to an abdication as no guidelines have been provided to the President in determining how many Justices of Appeal he considers necessary. The abdication violates the doctrine of separation of powers as carefully constructed and envisaged by the Constitution as it effectively leaves it to President to determine the number of judges of appeal that the country requires. Because the positions that the justices of appeal hold were not created by parliament but were created by the President, it also means that the judges do not lawfully hold office. Their positions have not been created in accordance with the Constitution and therefore their appointments stand to be declared a nullity".

Once again the Chief Justice Maruping Dibotelo features prominently in the lawsuit. Manual workers are relying on reasons previously advanced by Chief Justice Dibotelo in a case against government to support their argument against the validity of appointments of justices of appeal. Dibotelo had argued that he is entitled to receive gratuity like other high court judges who were receiving favourable treatment from the Executive, namely Justice Ian Kirby, the late Chief Justice Julian Nganunu and Justice John Mosojane. The matter was settled out of court when Dibotelo received payment from government and the High Court Act was amended to provide for a prescription of High Court judges. "It is thus surprising and disappointing that the Chief Justice in his capacity as chairperson of the Judicial Service Commission (JSC) has not seen it fit to agitate for an amendment to the Court of Appeal Act to take away the President's power to prescribe the number of Justices of Appeal," submits Motshwarakgole.

Manual Workers Union further submits that security of tenure is one of the universally recognised hallmarks of judicial independence, as also recognised by Section 101 (2) of the Constitution which provides that a justice of appeal may only be removed from office for misbehaviour. The union says although Section 101(1) ii provides that a person may be appointed as a Justice of Appeal for three years, it does not provide for a renewal which has been the practice in Botswana. To buttress their argument the union gives examples of Justice John Foxcroft who has been at CoA since 2008, currently on his third three-year contract, Justice Craig Howie first appointed in 2008, recently reappointed after the first contract expired in 2011, Justice John Cameron who was first appointed in 2009. "The renewal of a fixed term contract at the whim of the President is inimical to judicial independence as the President may renew the fixed term contracts of those judges who deliver judgments that he approves of and not renew for those whose judgments he does not approve of. This is of critical importance as the JSC has recently stated that it is constitutionally permissible for the President to disregard the JSC's advice on judicial appointments," reads part of the affidavit.
The union says President Khama's assertion in the ongoing Motumise case that he makes socio-political considerations in deciding whether to accept advice from JSC has created great anxiety for them. The union submits that being representative of the largest number of public servants they are constantly at loggerheads with the Executive and therefore require that its matters be adjudicated over by men and women who are in a position to do so without fear or favour, and such cannot be said about judges who may wish to have their contracts renewed by the President. The judges may be biased to influence the President's decision, argues Motshwarakgole, further adding that their anxiety is heightened by the secrecy surrounding the appointment of Justices of Appeal.  

Khama is yet to file a response.


The Court of Appeal is the highest court in Botswana, and the court of final instance in respect to all legal matters. As the highest court, it plays a critical role in the maintenance of the rule of law in the country. One of the incidents of the rule of law is the constitutional requirement judicial independence. One of the means through which the constitution achieves judicial independence, is by requiring that Parliament should prescribe the number of judges who sit on the CoA. This prescription is there to avoid 'court packing' which is the practice of the Executive appointing judges who are more likely to deliver judgment in the executives favour, or increasing the number of judges to accommodate executive minded judges.