Lobatse High Court judge Abednigo Tafa will on Thursday pass judgment granting or rejecting a request by President Ian Khama, Speaker of the National Assembly and Judicial Service Commission (JSC) to suspend the execution of orders he recently issued nullifying the appointment of Court of Appeal judges. Two weeks ago, justice Tafa concurred with arguments by manual workers union and ruled that the current practice where Khama appoints appeal judges is unconstitutional, as powers to determine the number of CoA judges rests with Parliament. He also found that the decision by and practice where Khama has extended contracts of some appeal judges contravenes the constitution and nullified it. Consequently, save for CoA judge President Ian Kirby, the appointment of all appeal judges was nullified and 'relevant authorites' ordered by justice Tafa to regularise the appointments within six months. Even then, most of the judges on the CoA bench have been disqualified because they are currently on extended contracts, in violation of constitutional provisions.
Justice Tafa heard arguments for and against the stay of execution on Monday morning, in which government argues that his decision has rendered the CoA dysfunctional. Khama, through acting Attorney General Morulaganyi Chamme, wants justice Tafa's orders suspended to allow CoA to continue operation in the public interest until the planned appeal by the state is decided by the CoA. In the appeal Khama wants CoA to overturn justice Tafa's decision and declare that Section 4 of CoA Act, which confers powers to appoint the judges on the President, is constitutional. Further, Khama, argues that the extension of three year contracts for the judges of appeal is consistent with the constitution, contrary to Tafa's ruling. Justice Tafa had struck down Section 4 saying it offends Section 99 of the Constution.
In opposition to the stay of execution lawyers representing Manual workers union, led by Mboki Chilisa, pleaded with court to dismiss the application because Khama & co. (the applicants) have no prospects of success on appeal. He argued that all the judges of Appeal, including Justice Kirby, are conflicted in the lawsuit since they have an interest in the outcome of the court case which affects them directly. Having regard to the fact that justice Kirby who is a member of the JSC is responsible in terms of Section 10 of the CoA Act for empaneling the court for purposes of appeal hearings, there is a practical impossibility in constituting an appeal court, Chilisa said. He added: "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".