The wheels of justice ground to a halt on Friday morning at the Court of Appeal when judge president Ian Kirby postponed the session indefinitely because there were no judges to hear cases, following a court judgment declaring their appointment unconstitutional and invalid. A day earlier, Justice Abednigo Tafa of Lobatse High Court sent shock waves throughout the judiciary in a landmark ruling declaring that, except for the judge president, the appointment of appeal judges by President Ian Khama is constitutionally invalid and nullified. Justice Tafa also struck down section 4 of the CoA Act of 1980 after finding that it is constitutionally invalid, and further instructed relevant authorities to take necessary steps to regularise the illegality within six months. He also ruled that the appointment of appeal judges on more than one three year contract, as has been the practice for many years, is unconstitutional. Apologising to the litigants, Justice Kirby said because of Tafa's judgement it will not be proper for the affected judges to continue with their duties, nor will they be able to complete and deliver their reserved judgment in two outstanding constitutional cases. "It will not be practical for the present application session to proceed. The court did not suspend the order nullifying the appointment of the judges. The Attorney General is studying the judgment and will advise if an appeal is lodged, and a stay of the operation of the orders sought, so that clarity can be sought," he said.
An insult to justice
According to the lawyer representing the trade union who brought the matter to court, Mboki Chilisa, the judgement is a victory for rule of law and constitutionalism. He said effectively the six months suspension on the order nullifying section 4 means only three judges qualify to sit in the CoA bench in the interim being Justice Lesetedi and Gaongalelwe who are on permanent appointment, and Justice Brand who is in his first three year contract. All others have been disqualified, while Kirby is conflicted because he is a respondent in the matter due to his membership of the Judicial Service Commission. "In my view the high court judgment is the last word in the matter because there is no court of appeal to hear it. That is how it is done in other jurisdictions. Should AGs file an appeal and seek a stay of the operation of the orders, which will be heard by a bench constituted by Kirby-who is a respondent, we are not going to participate. The whole thing will be a farce and a flawed process," said Chilisa, adding that the only option would be for Parliament to amend the CoA Act to regularise new appointments but emphasising that those disqualified by the judgment cannot be hired again. The judgment marks a major milestone in local jurisprudence pursued by National Amalgamated Local, Central Government and Parastatal Workers Union (former Manual Workers Union), led by veteran trade unionist Johnson Motshwarakgole. The trade union argued that Section 4 of CoA Act, which gives the President of Botswana powers to determine the number of judges of appeal, in addition to those already provided by the constitution, is incompatible with section 99(2) of the constitution and is therefore invalid. Section 99(2) provides in part that: "the judges of the CoA shall be the President of the CoA (and) such number, if any of justices of appeal as may be prescribed by Parliament..."
I will never forgive Judge Kirby
Motshwarakgole said on Friday that they are happy that they won a major feat in the judiciary. He said it is dangerous to have the extension or renewal of a contract of judges of appeal depending on the discretion on one man. "A judge whose contract nears expiry will most likely appease the appointing authority in his decision to win an extension. This is wrong," he said. But Motshwarakgole is concerned that the damage may already be done. He said recent developments, where judges, president of court of appeal and chief justice were given presidential awards raises eyebrows. He said although it may not be legally wrong, but in the eyes of ordinary members of the public an independent judiciary should not honour the executive as this blurs the line and offends the doctrine of separation of powers. "We want to approach court with confidence that its decisions will be fair. If Kirby and Chief Justice are enjoying Presidential Honours, what have they done for him or government? In other jurisdictions these honours are not handled by political office. We are concerned that in most of his judgments there is an attempt by Kirby to amend the law since he sits in the CoA," fumed Motshwarakgole. Once again Kirby has been accused of being pro-executive. Motshwarakgole said he will never forgive Kirby for declaring cleaners, labourers, grounds men, and herd boys who are members of his union, essential service. He said it is shocking that Kirby has also declared that everybody who works for DCEC should not belong to a trade union including cleaners, drivers, labourers, herd boys and messengers when the same does not apply even in the disciplined forces.
Judiciary in crisis
Justice Tafa's judgment has thrown the justice system into disarray and pushed the country into a constitutional and judicial crisis. A plethora of questions have been raised on the implication of the judgment in view of decisions, among them capital punishment, made by court of appeal judges now found to have been appointed unlawfully. Even more critical is the observation that the state has no room to manoeuvre and lodge an appeal because all court of appeal judges are conflicted in the lawsuit. Perhaps, the only available option will be for parliament to fast track the amendment of the CoA Act to facilitate fresh and lawful appointments, legal experts suggest. Until then, the CoA remains in limbo. Motshwarakgole had argued that it is unlawful that Parliament has never exercised its power to prescribe the number of Justices of Appeal and has in the CoA Act delegated such powers to the President. He said 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. No provision is made in the constitution, either expressly or implied, for the delegation of such an important constitutional duty, he said. "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 judges 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," he argued, also questioning the constitutionality of the practice of appointing the same justices of appeal to more than one three-year terms. Manual Workers Union also argued 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 said 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.
CoA judges disqualified
Appointments that have been nullified are Isaac Lesetedi-awarded the Presidential Order of Honour by Khama in 2014, Stephen Gaongalelwe, John Foxcroft since 2008, John Cameron since 2009, Arthur Hamilton, Craig Howie since 2008 and Elijah Legwaila (resigned, deceased). "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 (in the Motumise case) that it is constitutionally permissible for the President to disregard the JSC's advise on judicial appointments," reads part of Motshwarakgole's submission, adding that Khama's assertion in the Motumise case that he makes socio-political considerations in deciding whether to accept advice from JSC has created great anxiety for them. Justice Tafa agreed with this argument in his judgment. Justice Tafa also dismissed an attempt by government to block the lawsuit, claiming the trade union does not have a legal right (locus standi) to question the appointment of CoA judges. Motshwarakgole countered that, representing the largest number of public servants, they are constantly at loggerheads with the Executive and therefore require that their litigation be adjudicated over by judges 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 on extension, argued Motshwarakgole. Justice Tafa found that because the union is a regular litigant before the CoA, and had other matters pending before it, they have a constitutional right that its judges are appointed in conformity with the requirements of the constitution. "It follows therefore, that it has locus standi to institute proceedings which challenge the constitutionality of legislation which it alleges infringes that right," Tafa ruled.
The Court of Appeal
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 of 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 judgments in its favour or increasing the number of judges to accommodate executive minded judges. Chief Justice Maruping Dibotelo has also made a case for independence (financial) of the judiciary, during the 2016 legal year opening themed “Institutional Independence: a cornerstone for an efficient and Independent Judiciary". He said an independent Judiciary lies at the heart of democracy. Governments come and go but institutions remain. To this extent the Judiciary should start laying the foundation of a truly independent Judiciary which Batswana can be proud of. Botswana, one of the early democracies in the region and a leader in the Rule of Law, cannot afford to lag behind and be overtaken by new comers. Dibotelo said the principle of judicial independence, which is almost universal, has two components: namely individual independence and institutional independence. Institutional independence refers to the existence of “structures and guarantees to protect courts and Judicial Officers from interference by other branches of government”, while individual independence refers to “Judicial Officers acting independently and impartially”. "The doctrine of separation of powers has been suitably modified and adjusted to achieve the goal of financial freedom of the Judiciary," said Dibotelo. Various International treaties including the Universal Declaration of Human Rights (1984), the International Covenant on Civil and Political Rights (1976) and the African Charter on Human and Peoples Rights (1981) contain provisions affirming the importance of an independent Judiciary in a democratic society.