An attempt by Minister of Defence, Justice and Security Shaw Kgathi to sneak into parliament, a Bill to amend the Court of Appeal Act to reverse a recent high court judgment declaring the appointment of appeal judges unconstitutional has failed. The amendment Bill, which was discussed at the Parliamentary General Assembly early in the week –where the Attorney General made a presentation – is said to have divided the ruling Botswana Democratic Party (BDP) MPs. The Patriot on Sunday is reliably informed that after a passionate debate by Leader of Opposition Duma Boko, most of the MPs rejected the suggestion to increase the retirement age of judges from 70 to 80, which led to an impasse. Without the support of fellow democrats Kgathi's Bill was weakened and he failed to present it before Parliament on urgency as originally planned. He could not face the embarrassment of being defeated by MPs from his own party on the floor of Parliament. By the end of the week, all indications were that the Bill could be edited to remove unconstitutional content.
Invalid steps, legal challenge looms
A number of legal experts are in agreement that even if BDP MPs use their numerical advantage to pass the Bill in Parliament it could be successfully challenged in court, as its contents offend the constitution. In fact many are looking forward to the lawsuit. Attorney Mboki Chilisa – who won the case against the invalid appointment of appeal judges on behalf of National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU) – said the only way to increase retirement age of the judges is through an amendment of the Constitution. "Parliament is not above the Constitution and cannot alter its provisions through an amendment Bill of some Act. A lawful process to amend the constitution has to be followed. What they are trying to do is invalid. The proposed amendment seeks to declare that the appointments which were rendered unconstitutional by the high court are in fact valid. The only way to validate CoA appointments is through a constitutional amendment," said Chilisa.
The irony of the current dilemma is that two weeks ago BDP majority in Parliament ganged up to defeat an urgent motion by Boko, proposing amendments to section 4 of the CoA Act to make it compatible with constitutional provisions. Boko's motion sought to prescribe the number of judges of the CoA in accordance with the constitution, to bring the process of appointment of the CoA judges in line with international best practices and ensure that all CoA judges are citizens of Botswana. Through the motion Parliament had an opportunity 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. Boko's motion reads: “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". The Law Society of Botswana (LSB) has blasted government's attempt to rush an amendment in Parliament, which undermines Justice Tafa's judgement. The effect of the Tafa's judgement and ruling was that government had to amend Section 4 of the Court of Appeal Act and appoint new Justices of Appeal following Parliament’s prescription of the number of Justices.
Parliament in seeking to raise the retirement age of Justices of Appeal from 70 to 80 has purported to act in accordance with Section 101 of the Constitution which stipulates that the retirement age for Justices of Appeal shall be 70 or “such other age as may be prescribed by Parliament”. The provision, which previously provided for 65 as a retirement age, was amended in 2001 following a referendum in which the question put to the electorate was whether the retirement age should be raised from 65 to 70. "The validity of the latter part of Section 101 of the Constitution is doubtful because, amongst others, the question as to whether Parliament should be given an unlimited discretion to prescribe a different age was never put to the electorate during the referendum. The haste with which the amendment is being done and the unbridled lack of transparency is a cause of great concern. Transparency and consultation is a bed-rock of any participatory democracy. Batswana should be worried at the growing impunity where laws are made without consultation of the people. The Government has not brought the citizenry into its confidence as to why Justices of Appeal need their retirement age raised," reads a statement from LSB. In the 2001 Constitutional Referendum, which raised the retirement age of judges from 65 to 70 years, only 53% voted in support of the proposal.
The LSB, NALCGPWU, Botswana Teachers’ Union (BTU), Botswana Landboards and Local Authorities and Health Workers’ Union (BLLAHWU), Botswana Sector of Educators Trade Union (BOSETU) and Botswana Federation of Public Sector Unions (BOFEPUSU) issued a statement last Friday expressing concern about lack of consultation by Parliament. They note that the current development is the second instance in less than six months where laws have been passed with undue haste and lack of consultation. They cite the example of the amendment of the electoral act, which introduced the controversial Electronic Voting Machines (EVMs). "As Batswana we are worried and if you are not you should. It is the view of most who are familiar with the debate around independence of the judiciary, appointment of Judges, security of tenure of Judges and the Tafa J. judgment that the import of this amendment is simply to undermine or frustrate the effect of the Tafa J judgment. The amendment seeks to allow a backdoor entry by those whose appointment Tafa J. has deemed constitutionally invalid. It further seeks to avoid the issue of renewals by giving carte blanche appointment. That this is legal is not the point but it is by no means reflects Rule of Law but to the contrary Rule by Law," reads the joint statement. Further the statement reads: "There is also a strong indication that all this is hastily done to entrench patronage and intended to frustrate recent heightened calls for localisation of the Court of Appeal. Are the demographics going to continue to look more like a court during apartheid South Africa than those of an African country that has been independent for over 50 years?"