A panel of three Court of Appeal (CoA) judges has promised to clarify the interpretation of the constitution regarding Presidential powers in relation to the appointment of judges, in a case in which President Ian Khama is sued for refusing to appoint attorney Omphemetse Motumise to the bench.
Section 96(2) of the Botswana constitution, which addresses the appointment of judges, took centre stage. It stipulates that "judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission." One of the judges, Justice Abednigo Tafa made the promise, after asking Advocate Anwar Albertus-representing Khama and AGs, what he makes of the wording "the President shall appoint (and not may)in accordance with the recommendation of the JSC", to which the lawyer said it is not clear.
Throughout the arguments in court on Monday it was clear that the contest was over semantics of whether the two words 'must' and 'shall' carry a different meaning. Albertus depended heavily on the wording on the Constitution of South Africa, which he said clearly stipulates that the President must appoint while the local version uses the word shall. He, however, struggled to give a convincing answer on the difference in meaning between the two words when quizzed by Justice Phadi Solomon. Instead he stuck to his guns insisting that the SA constitution is clearer that the president has an obligation to appoint where the JSC has prepared a suppemented list while on the contrary there is no such mandatory language in the Botswana constitution.
Albertus argued that the President had a discretion whether or not to appoint those individuals recommended by the JSC
Motumise and the Law Society of Botswana, through Advocate Wim Trengove argued that Khama acted improperly when he declined to appoint Mr Motumise, as the Constitution obliged him to appoint the individual recommended by the JSC. Trengove said that, given the wording "in accordance with the advice of", in the Botswana Constitution, it should be clear that the President has no discretion to appoint a candidate recommended by the JSC.
Motumise and the LSB also wanted court to order that the interviews before the JSC should be open to the public and that the outcome of the JSC's deliberations be disclosed; and that the representative of the Law Society who sits in the JSC should be entitled to consult with the Law Society on all matters related to judicial appointments.
Khama's lawyers also insist that JSC's interviews should not be held in public, as the LSB and Motumise want court to declare. They cite section 103 of the constitution, arguing that it gives powers to JSC to conduct interviews in camera. Sec103 (5) states: "The commision may regulate its own procedure and, subject to that procedure may act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings."
Albertus also argued that there are situations where the President acts with a prerogative power, and that in such situations he is simply not subject to review. He said that the decision would only be reviewable if it affected someone's rights or legitimate expectations, and that in the case of judicial appointments no one has a right or even a legitimate expectation to be appointed, and so there cannot be a review of the President's decision. Trengove had earlier argued that in a constitutional democracy like Botswana all public power has to be reviewable. He said it would be if the court accepts that the constitution does not empower the President to appoint judges then the court will have to set aside the decision. He, however, said even if the court finds that the President can choose to not appoint a recommended candidate, this specific decision should be ruled irrational as the President did not provide reasons for why he did not appoint Mr Motumise.
Judgement has been reserved to a later date.