The Leader of Opposition in Parliament Duma Boko has berated and called irresponsible the decision by Botswana Democratic Party (BDP) MPs to deny him a chance to present a motion calling for the amendment of section 4 of the Court of Appeal Act. Boko was on Friday scheduled to present a motion to Parliament which read; “That parliament resolves to amend section 4 of the Court of Appeal act by providing that the Court of Appeal shall in addition to the judges provided for in the Constitution, consist of not more than fifteen (15) Justices of Appeal who shall be citizens of Botswana and who shall be appointed pursuant to an open, transparent and objective process involving public advertisement of vacancies and public hearings in respect of all short listed applicants”. Following his indication to the speaker of Parliament that he had interest in presenting a definite matter of urgent public importance (the motion), the speaker sought clearance from the House which resulted in a division, hence calling for a vote. The ruling party MPs with favour of their numbers voted against the motion. Speaking in an interview after the motion was defeated Boko bemoaned what he termed the ruling party’s habit of “doing things the wrong way in quest to win something”. “Our argument is that when something is right, it is right regardless of where it is coming from. By defeating the motion, the ruling party has chosen to be in the wrong and this is a cancerous move that will eat them up until their demise,” said Boko.
Although he didn’t disclose what his next step would be, Boko vowed never to despair in their quest as the opposition to rectify the ruling party’s misdeeds. In his motivation for the motion which he was to present to Parliament, Boko outlined that his motion sought to do a number of things, among them to simply prescribe the number of judges of the Court of Appeal in accordance with the constitution, to bring the process of appointment of these judges into line with the international best practice and to restore the collective confidence of the nation in its own people by ensuring that the judges of the Court of Appeal are all citizens of Botswana. He pointed out in the motivation that the Constitution states in section 99 that there shall be a Court of Appeal and goes on to state in pertinent part that the judges of this court shall be. “They are: The President of the Court, such number of judges, if any, as may be prescribed by Parliament, the Chief Justice and other judges of the High Court,” he said. According to Boko, Parliament is enjoined by the Constitution to prescribe the number of judges for the Court of Appeal. The power to prescribe the number of the judges of the Court of Appeal, he said, is not different from the power to do the same in respect of judges of the High Court. “This power, Parliament has exercised, and duly prescribed the number of judges for the High Court. Parliament has, however not prescribed the number of judges for the Court of Appeal. This was because Parliament enacted, among others, section 4 of the Court of Appeal Act in terms whereof its power to prescribe was then given to the President to appoint such number as he deemed meet,” said Boko.
Citing a recent case of National Amalgamated Local Central Government and Parastatal Workers Union versus the President of the Republic of Botswana, the Speaker of the National assembly and others, Boko said it took this failure by Parliament to prescribe the number of judges for the Court of Appeal, in addition to other issues relating to the manner of appointment of judges of the court. “Courts are the only authoritative institutions for the settlement of legal disputes in any democratic setup. Difficulties arise when the very institutions for resolving disputes themselves become the object of dispute,” he said. The said case, according to Boko, presents a poignant illustration of exactly this difficulty and highlights the glaring failure or omission on the part of Parliament to do what the constitution enjoins it to do. The result of this failure, he said, is that the high court has struck down section 4 of the Court of Appeal Act as unconstitutional and, in one fell swoop, declared all other judges of the Court of Appeal save those stated in the constitution itself, improperly appointed and thus unconstitutionally established. “This has create a veritable constitutional crisis requiring the most urgent intervention of Parliament by way of doing exactly what the law requires of it: to prescribe the number of judges for the court of Appeal,” he said. According to Boko, his motion presented an opportunity for Parliament to effect simple yet far reaching reforms that ensure transparency in the appointment of a truly independent, competent, honest judiciary of the highest standing and integrity.