President Ian Khama's exclusive executive powers were on Friday reaffirmed by three High Court judges when they ruled Friday afternoon that the power to appoint judges to the bench vests exclusively with the President, not the Judicial Service Commission (JSC). Attorney Omphemetse Motumise and the Law Society of Botswana (LSB) had dragged Khama to court challenging his decision to refuse to appoint the former citing 'national security' among other considerations. Motumise and LSB wanted court to declare that the president is bound to follow and implement the lawful advice of the JSC, and to review and set aside Khama's decision not to appoint Motumise as a judge. They argued that the president acted irrationally by refusing to give reasons for refusal. But Justice Walia differed, saying it was benevolent of him to not make a disclosure in public lest the applicant suffer damage to his reputation. "The President committed no reviewable wrong in making the decision," he said.
Justice Walia also crashed the argument by Motumise and LSB that the power of appointing judges is vested with the JSC, with the president's role just ceremonial and a formality. He said such argument is flawed because if the JSC was always intended as the sole appointing authority, there would be no need to bring in the president. "The president too enjoys absolute and some tempered powers. There is another reason why section96 (2) may not be construed as vesting the ultimate power of appointment in the JSC. The JSC does not even play an advisory role. Having made a recommendation, it falls out of the picture altogether. How then can it ever be regarded as the appointing authority," he said. The applicants also wanted court to declare that the representative of LSB on the JSC is entitled to report to and consult with the Council of the Law Society on all matters relating to the appointment of judges. They also wanted the court to order that the JSC's interviews of candidates for appointment as judges must as a rule be open to the public and that the JSC must make public the outcome of its deliberations on the appointment of judges.
Justice Walia went on to refuse to grant all of the orders sought by Motumise and LSB in relation to the conduct and process of the JSC. Commenting on foreign judgment and other material referred to by the parties, Walia commented thus: "Although helpful they might be in their own context and jurisdiction, the wholesale importation thereof in this matter has been of little assistance. While foreign judgments have played and will continue to play a role in developing local jurisprudence, our courts should be guided predominantly by local laws, precedence, conditions and ethos. I can think of very few areas of human endeavour not covered by local jurisprudence". No sooner had the judges retreated to the chambers than Motumise and his lawyers were declaring that they disagree with the decision and will launch an appeal in due course. Motumise's lawyer Tshiamo Rantao said they do not agree with the conclusions of the judges and will be taking the matter on appeal.
Asked to comment of the point made by Justice Walia that their prayer for costs, because of the nature of the case, was not properly before court and was not brought in public interest Rantao said: "It's a paradox. It is contradictory because the judge stated in the early paragraphs of the judgment that the matter is of major public interest. How can they at the end on determination of costs turn around and say it was not brought on public interest but rather with the intention to challenge Motumise's non-appointment”.