LSB appeals Khama judgment

SHARE   |   Monday, 14 March 2016   |   By Staff Writer

The Law Society of Botswana (LSB) has appealed a High court judgement that President Ian Khama was under no obligation to disclose reasons for refusing to appoint attorney Omphemetse Motumise to the bench, as advised by the Judicial Services Commission (JSC). Three judges Justices Lakvinder Singh Walia, Abednigo Tafa and Phadi Solomon passed the judgement on February 05, 2016. In papers filed on Thursday, LSB argues that the High court erred in rejecting the ordinary, clear and unambiguous meaning and interpretation of the language of the Constitution, particularly the universally settled meaning of the words "acting in accordance with the advice of the Judicial Services Commission". The society also believe that court erred in failing to take guidance from foreign and local authorities, publications and reports which they had submitted to provide aid to the construction of the constitution in line with the provisions of the Interpretation Act.

These include; The Report of the Presidential Commission on the Judiciary July 1997, The Compendium and Analysis of Best Practice on the Appointment, Tenure and Removal of Judges Under Common Wealth Principles May 2015, The Report of Bechuanaland Independence Conference February 1966, and Christina Murray Who Chooses Constitutional Court Judges 1999. Rejecting the ‘very large number of foreign and other material’ referred to by the litigants, Justice Walia noted that "although helpful they might be in their own context and jurisdiction, the wholesale importation in this matter has been of little importance or assistance. At the risk of being criticised therefore, I am constrained to say that selection procedures, particularly, good for South Africa, are not necessarily expedient or binding in Botswana. ". He said while foreign judgements have played a role in developing local jurisprudence, local courts should be guided predominantly by local laws, precedents, conditions and ethos. "I find it unnecessary to have regard to numerous foreign decisions referred to by the parties," Justice Walia declared in the judgement.

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LSB insists that, having properly accepted that executive decisions made irrationally are reviewable, the judges erred in finding that Khama was under no obligation to make any disclosure in so far as his decision was motivated by concerns of national security or based on adverse information in relation to Motumise. "There were no facts before the court to establish whether the decision was in fact motivated by concerns of national security...(Khama) did not provide any reasons for his refusal to implement JSC's careful and considered recommendation...and there was no document generated by (Khama) or his office in the decision making process," LSB argues. In addition LSB says court failed to follow its own judgement in Letsatsi Investments (Pty) Ltd vs South East District Council and Another 2009, where it recognised the purpose of giving reasons, which is to assist the court to determine whether the decision was irrational or erroneous, without itself re-determining the question of fact. 

The LSB also contests Justice Walia's finding, when awarding costs against the society, that the application was not brought in public interest, but clearly to challenge the non-appointment of Motumise. LSB says the finding contradicts what the judge had earlier said in the judgement when he pronounced that "although the issues for determination fall within a narrow ambit, they are of national and public interest" and that "(Khama's) decision has generated public interest". Further LSB argues that in relation to the disclosure of the outcome of the JSC's deliberations on the appointment of judges, the judges erred in failing to give proper weight to the public interest in making them open to the public. The state, on behalf of Khama, is yet to file a response to the appeal.