UDC President Duma Boko has dismissed the Court Of Appeal (Amendment) Bill, 2017 during his debate in Parliament on March 24, though the ruling party MPs voted in majority to have it passed.
Below is his debate:
My remarks and observations in relation to this matter are a matter of record, and so I will not repeat them today. All I will say is that all my rights as a citizen and as a Member of Parliament in regard to any aspect of this matter are fully reserved. What I would like to say is this, the motivation by the Minister tells us that he seeks to comply with what the High Court per Justice Abednico Tafa has indicated in terms he says the Judge has chided Parliament for having abdicated its responsibilities to prescribe the number of Judges of the Court of Appeal in terms of section 99 (2b) of the Constitution. Before I deal with the rest of the issues, let me make something very, very clear speaking from the vantage point of a practitioner of law, a jurist. When a court determines a matter, the court does not give advisory opinions, the court deals with any matter on the basis of what lawyers know to be the case or controversy method. In other words there must be an actual dispute not an imaginary one; there must be a live disputant and a live dispute before the court; that is what we call a case controversy method. When the court speaks in relation to the dispute before it, and resolves that dispute, the court cannot speak on any other matter that is not before it. So what was before the court in the manual case, what was before the court was 1; that Parliament had failed to prescribe the number of Judges of the Court of Appeal, that section 4 of the Court of Appeal act in terms whereof the President could appoint any number as he deemed meet was unconstitutional, that contract appointments for any Judge of the Court of Appeal are valid for just one contract term and no other. These are the issues that were before the court. The constitutionality of the dispensation of having appointed judges pursuant to section 4 of the Court of Appeal Act in the absence of a prescribed number by Parliament and the contract appointments of judges. These as I simplified them for the lay mind are the issues that were before the High Court. What did the High Court say? The High Court says the failure to prescribe was an abdication of responsibilities by Parliament; such failure has resulted in the appointment of judges over a long period of time which appointments were unconstitutional, ab initio.
What does this mean? It means this; when a court pronounces something to be unconstitutional the court is saying this thing is as good as never having existed, it is in violation of the constitution. It cannot be valid, because its validity must be traceable to the groomed norm, the constitution and to the extent that it is in conflict with, it falls far off the Constitution, it is invalid, that is what the court has said. So what is open to Parliament to do in complying with that judgement, Parliament must prescribe and that is all Parliament can do here, prescribe the number of judges. Then you would have complied with the High Court judgement. What does the prescription of the number mean? It means after the number is prescribed then judges must be appointed to make those appointments lawful and constitutional. Prescribing will not validate the previous appointments, it will not, by operation of law it would not. Prescription would not validate any previous appointments, no! It cannot, prescription draws a line and says from now on you appoint to bring it closer to life, give it some flesh and blood import. Those Judges of the Court of Appeal that have served under the previous unlawful and unconstitutional dispensation are not Judges of the Court of Appeal; they will have to be appointed afresh to become Judges of the Court of Appeal. That is what this judgement means, and this judgement contains a structural interdict that part which says comply within six months, regularise. Regularisation does not mean violate the constitution, violate the law in the name of regularisation, no! It means whatever you do in your efforts to regularise must be within the letter of the law itself, the Constitution here. So the law is this a pronouncement on constitutionality or lack thereof does not lie with Parliament, a pronouncement on constitutionality in terms of the Constitution I have cited to you so many times before, section 18 subsection 1, section 18 subsection 2, section 18 subsection 3 of the Constitution I have cited to you section 105 of the Constitution of this Republic and I have said to you, the power to interpret the law and to lay down what is, and what is not constitutional does not lie with us. The dispositive answer to constitutionality lies with the courts and in exercise of that power the court has declared your conduct as Parliament, the conduct that was carried out pursuant to the unconstitutional section 4 of the Court of Appeal has declared that to be unconstitutional. So all you can do within the letter of the law Minister is to prescribe, and do no more at this point. Now what you are trying to do which is to say let us backdate the passing of this Act to 1980 is effectively rubbishing the judgement of the High Court. It is rendering it not worth the paper it is written on, you are saying yes we have acted unconstitutionally, but we pass a law that declares that what we did was constitutional. You declare from now on but then you try to backdate and say we are validating ex post facto, after the fact. You cannot validate after the fact, you must validate ex ante, before the fact not ex post. So what you are trying to do is in fact unlawful and unconstitutional because you are seeking to take the powers vested in the Courts by the Constitution itself and vest them elsewhere on this Parliament when it does not have such powers. That is the one thing that you need to be very careful of.
I have indicated to you before, I need not repeat that that is pursuant to what we call the principle of legality. You can only act within the remit of powers that have been allocated to you; you cannot claim any other powers and the law says anybody who does not even understand the powers that they are given cannot, by any stretch of the imagination be said to exercise them properly when they do not even understand it, that is the principle of legality. You do not seem to me to understand the powers that you have, you do not seem to me to understand the powers that Parliament has and resultantly you are not exercising any such powers properly at all. So I will disagree with your effort to seek to rubbish a judgement of the High Court; I will disagree very strongly and the issue of whether judgment of the Court of Appeal are valid or not that were given, is a matter that has not been determined by the Court because it was not before the Court. Anybody who is aggrieved, anybody who comes before the court and says I have a judgement that was given in 2006, for instance, or 2015, I have a judgement that was given then and I am aggrieved because I am saying that judgement was given by a Court that was not properly constituted, when that dispute arises, the Court will resolve that dispute. That dispute has not arisen before the Court, so when you go beyond what seeks of you and you now want to validate after the fact you are not seeking to comply with the judgement, in fact you are seeking to render that judgment ineffective and negative. The whole of your 4 (b) the entirety of it all the way to 5 and 6, in my contention are therefore offensive of the principle of legality, amount to an usurpation of the powers vesting in the Courts and I would want to move at this point an amendment while I am on my feet and say remove all that and leave only in this Bill the issue of prescribing the number. As we speak and we know this, so do not pretend that there is a crisis, there are seven substantive Judges of the High Court in Gaborone and two acting Judges. There are four substantive Judges of the High Court in Lobatse and three acting Judges; there are six substantive Judges with one with one vacancy in Francistown. Out of a total prescribed number in relation to the High Court of a compliment of 30 Judges we have this number, 23 in posts. Why am I saying this, I am saying this because all the Judges of the High Court are by law Judges of the Court of Appeal. So we have already 23 Judges of the Court of Appeal, we have them in post as we speak, who can determine matters. There is absolutely no crisis, no difficulty in relation to that. So your smuggling these things under cover of darkness in the manner that you brought them here is in fact a violation of many principles of democracy where you must give the people time to debate, to reflect and to also come up with their own ideas and make motivations to their parliamentary representatives. So this is the situation and I am saying to you remove the whole of this because what it will result in is this, the right of an applicant to challenge for constitutionality is not extinguished by your passing of this; that right will not be extinguished if that is what you thought you would achieve. You are wasting your time and wasting government money and resources. If you thought you would achieve the effect of rendering incompetent any challenge by anybody who says I have a judgement given by an unconstitutionally appointed bunch and I am challenging it, you will say yes but there is a law that validates and the person will say that law is unconstitutional, that law is violative of what the Court itself had pronounced, that is what the situation is. So what you ought to have done in relation to all these matters perhaps is to wait for the outcome of the appeal and then determine what you want to do. But as you approached the matter and as I have pointed out to you so many times at the General Assembly and here, what you are doing remains liable to very serious challenge and attack from many varied standpoints some of which have been raised by my worthy friends on my side of the aisle. So with those very few pointed remarks, I advise you and advise you earnestly to remove not just your proposed Clause 3 but remove your 4 (b), 5 and 6. The only thing that you will be left with then is to prescribe the number of Judges of the Court of Appeal. That is what if you are a law abiding and Constitution respecting person would do. I would like to rest at this point.
Tafa in his ruling on the stay proceedings says there is no judicial crisis because the High Court judges are court of appeal Judges. That is correct in terms of the provisions of the Constitution. However, the "office of a court of appeal" Judge is created by Parliament proscribing the numbers. So even if a High Court judge qualifies and is a court of appeal judge they cannot assume an office that has not been created. When you look at the provisions of the Constitution it is clear that for a person to "assume" office" there must be a position available as per the numbers set out by Parliament. This was the whole basis for Tafa finding that Parliament had abdicated its role to the Executive in terms of Section 4 of the CoA Act. Also, the oath of office for a CoA judge needs to be retaken. The provisions are clear, again this can only be done when there is a vacant office. So, in my view even if the High Court Judges are de facto court of appeal judges they cannot sit until parliament has proscribed the numbers, hence the judicial crisis. This was circumvented because Tafa realized he made a mistake and subsequently suspended his entire judgement (itself questionable). Look at the provisions of the constitution, Sections 100, 101 and 102.