Manual Workers Union has changed its mind, and is now defending the judgement of Justice Abednigo Tafa which declared unconstitutional and nullified the appointment of Court of Appeal (CoA) judges by President Ian Khama. Government has launched an urgent appeal against this ruling. Khama – through the Attorney General – also want CoA to suspend the operation of the orders made by Justice Tafa pending the decision of the intended appeal, to allow for the court to continue business in its current composition. This, he says, is in the public interest. Opposing the stay of execution in papers filed on Friday morning, the National Organising Secretary of the union Johnson Motshwarakgole, argues that all judges of appeal are conflicted, and there is a practical impossibility in constituting an appeal court since the Judge President Ian Kirby, who is a member of the Judicial Service Commission (JSC) is responsible in terms of Section 10 of the Court of Appeal for empaneling the court for purposes of appeal hearings. "The applicants have no prospects of success on appeal. The greatest asset the judiciary has in the dispensation of justice in any democratic society is the confidence the members of the public have in it. As long as there is a dark cloud surrounding the validity of their appointment, it is most undesirable to have the Justices of Appeal whose process of appointment raises reasonable apprehension as to their impartiality in matters involving the executive continue to sit as Justices of Appeal," reads part of Motshwarakgole's affidavit.
Motshwarakgole told The Patriot on Sunday on Friday that they have abandoned an earlier position not to entertain the appeal because the state would be granted their wish without objection, which would reverse Justice Tafa's decision. "We do not want to abandon a cause we have spearheaded, midway. We will fight to the bitter end. We don't want to be accused of chickening out," he said. Kirby conflicted. Legal experts observe that the authority to constitute a panel of appeal judges lies with CoA judge president Ian Kirby, and in his absence his deputy. But in this case Kirby is conflicted as a respondent, and there is no deputy to delegate such authority to because all appeal judges are conflicted because they have interest in the outcome of the appeal. Motshwarakgole also argues that in terms of Section 10 of the Constitution, Justice Kirby is vested with the authority of putting together the panel of Justices of Appeal that is to be assigned appeal matters. In respect of the envisaged appeal by the Applicants, he cannot exercise such powers as he is an interested party. He also cannot delegate such power to any of the Justices of Appeal as they are all conflicted in respect of the issue. "In the absence of a Justice of Appeal to whom the power may be delegated, an appeal court cannot be constituted to preside over the envisaged appeal. In the premises the High Court judgement must be regarded as final," he said. "It would be interesting to see how this pans out and how they manoeuvre," said Motshwarakgole, reiterating that government is missing a great opportunity to use the ongoing session of parliament to amend the constitution as advised by Tafa's court.
Law Society opposes appeal
The Law Society of Botswana (LSB) has entered the fray on the side of the trade union. Its chairman, Kgalalelo Monthe criticised the appeal by government, saying the best solution is for Parliament to amend the law and make sure that judges of appeal are appointed in an accountable manner. He said such amendment will restore confidence in the procedure of appointment, which is shrouded in secrecy. In fact, earlier in the week Francistown East MP Buti Billy noticed a motion in Parliament proposing amendment to the constitution to legalise the appointment of appeal judges by the president. The motion was later withdrawn. Because CoA posts are never advertised for open and fair competition between those who aspire to be judges of appeal, the nation is in the dark about requirements thereof. "We do not know whether one has to be a friend, political ally or of particular race to be considered by the appointing authority. The nation of Botswana has made a commitment that the kind of society we want is an informed, open and accountable one. We cannot now when it suits the executive walk away from those principles to satisfy selfish interest," insisted Monthe. Monthe praised justice Tafa, saying his groundbreaking judgement is appropriate, sound and well- reasoned. He said the current process of appointment is a far cry from being open, transparent and accountable contrary to the position encapsulated in the pillars of national vision - Vision 2016. According to Monthe, there is no need to import lawyers to become judges in local courts when Botswana has produced many senior lawyers since independence. He, therefore, called for the localisation of the bench. "The system of renewable contracts also breeds people who defer to the appointing authority. It erodes the confidence the public has in the judiciary because it is currently highly secretive," he said.
Monthe extended the argument to the composition of the Judicial Service Commission (JSC) – a body which makes recommendations of appointment of judges to the President. He said JSC lacks transparency and independence because, except for an LSB representative, all other members are presidential appointments.
Why is Chief Justice Dibotelo silent?
Manual workers Union has also questioned the whereabouts of the head of judiciary in Botswana - Chief Justice Maruping Dibotelo – saying he is failing to provide leadership. Accusing Dibotelo of abdicating on his responsibilities, Motshwarakgole said it is disturbing that the former has failed to step up to the plate and offer guidance on the way forward. He said is Dibotelo was leading from the front sanity would prevail at Government enclave and the administration of justice would be saved from further crisis and embarrassment. Motshwarakgole singled out Kirby, accusing him of being the catalyst destroying the justice system in the country. He said Kirby has usurped the powers of the head of judiciary, exploiting the leadership vacuum created by the inactivity of the head of judiciary. "He is now the law, acting as President CoA, head of judiciary and issuing instructions to the AG," fumed Motshwarakgole.
Dibotelo, Walia contracts extended
Sources close to the judiciary have informed The Patriot on Sunday that a cabinet meeting last week approved an extension of Dibotelo's contract by a further twelve months. Another judge whose contract has been extended is Justice Lakhvinder Singh Walia, who has reached retirement age of 70 and was due to leave. Monthe said LSB is not aware of extension of the two contracts. "The law accommodates extensions specifically to allow the retiring judge to complete matters pending before him. However, we would be very concerned if it is done for any other reason," he said. The AoJ had not responded to questions sent to the head of the judiciary, Dibotelo, through spokesperson Clement Sibanda, at the time of going to print.