The ruling Botswana Democratic Party (BDP) have once again used their majority in Parliament to frustrate and reject a number of amendments to the Court of Appeal Bill, 2017 proposed by opposition legislators. The Bill returned to the committee stage of Parliament on Wednesday, where Selibe-Phikwe West MP Dithapelo Keorapetse proposed an amendment to prescribe a ceiling and a floor. "What the Minister proposes is a ceiling and I am proposing for a floor of nine (9) Justices of the Court of Appeal; between nine (9) and twelve (12). The reason for this is that in terms of the Constitution, by law, the Chief Justice, Judge President and all Justices of the High Court are members of the Court of Appeal. Although all Justices of the High Court (currently 22) are by law Judges of the Court, they are busy doing their jobs, they have their day-to-day jobs of hearing cases. So, we need a substantive full bench of the Court of Appeal," he proposed. Keorapetse also proposed that five of the judges should be female because there are capable women in the country who can be Justices. "I am saying because the appointing authority for 50 years has not seen it fit to place women at the Court of Appeal, now as Parliament let us act; it is now time to act, to make sure that there are females in the Court of Appeal bench because I believe we have capable women," he said. He was supported by other opposition MPs, among them Gilbert Mangole, Wynter Mmolotsi, Pius Mokgware, Haskins Nkaigwa and Abram Kesupile. They said such positive discrimination will be in line with affirmative action in favour of women, who remain marginalised in decision making positions 50 years after independence. They argued that Botswana should not be afraid to be the first country to prescribe the inclusion of women in positions of power. BDP MPs also voted against a proposed amendment calling for the inclusion of Botswana citizens in the Act. The proposal by MP Rantuana reads: “the Court of Appeal shall in addition to the Judges provided for in the Constitution, consist of not less than nine (9) but not more than twelve (12) Justices of Appeal, nine (9) of whom shall be Batswana.” The proposal was immediately shot down by Minister of Justice Shaw Kgathi who said it does not add substance to the Bill as it is, and further that it is unconstitutional. He said the danger with the structure and import of the proposed amendment is that it introduces a definitive number; that should be clear, and by extrapolation, mandatory that twelve (12) positions must always be filled, whereas the proposed Clause 2 as in the Bill, seeks to facilitate a flexible and incremental growth commensurate with the workload of the courts which are determined by the JSC. "The desire to make a provision for appointment of female Judges is a matter that falls squarely within the purview of the JSC as per Section 103 (4) which is very clear in that it stipulates that the JSC shall not be subject to the direction and control of any other person or authority in the exercise of its functions," said Kgathi, who was supported by other BDP MPs among them Patrick Ralotsia, Pelonomi Venson-Moitoi, Dorcus Makgato and Slumber Tsogwane. Both Makgato – BDP Women's Wing Chairperson – and Venson-Moitoi said it was unnecessary to specify the number of women in the Act as that will be restrictive. Instead they suggested that the law be left open for women to compete against their male counterparts on equal footing.
Change of heart
The Bill tabled by Kgathi on urgency was passed by MPs but on Wednesday the minister beat a hasty retreat and asked for the removal of sections which offend the Constitution, particularly increasing retirement age from 70 to 80 years. Key among the decisions was trashing sections, which sought to increase the retirement age of judges from 70 years currently provided for in the Constitution to 80 years and backdating the passing of the new Act to 1980 effectively rubbishing the judgement of Justice Abednigo Tafa passed in February. An attempt by opposition MPs to block the Bill at the first reading on similar grounds was defeated by the BDP majority. The Bill proposes that the number of appeal judges be 12 and that the tenure of office of a Judge of the CoA be increased from 70 to 80 years. Attorney Duma Boko, who is Leader of Opposition in Parliament made a passionate plea in the house warning Kgathi and other BDP MPs that what they were trying to do amount to breaking the law. On Wednesday opposition MPs had a field day criticising Kgathi for lack of foresight after he rejected the same amendment when proposed by them at the first reading. The Law Society of Botswana (LSB) and National Amalgamated Local, Central Government and Parastatal Workers’ Union (NALCGPWU) are watching developments in Parliament with keen interest after making it clear that they will return to court, should they feel that the new amendment is ultra vires the constitution. "Hopefully sanity will prevail and we won’t have to go to court. But we will definitely challenge any provision that offends the constitution," said Kgalalelo Monthe, LSB Chairman.
Is CoA paralysed?
Justice Tafa in his ruling on the stay proceedings found that there is no judicial crisis because High Court judges are de facto court of appeal judges. SA based lawyer Joao Salbany says 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, he observes. So even if a High Court judge qualifies as a court of appeal judge they cannot assume an office that has not been created, he adds. "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 Justice 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," says Salbany. Justice Tafa's judgment had struck down as unconstitutional Section 4 of the CoA Act which gave the President powers to determine the number of appeal judges. The appointment of appeal judges on more than one three year term contract as has been practice was also declared unconstitutional. The judgement came after National Amalgamated Local Central Government and Parastatal Workers Union (NALCGPWU) challenged President Ian Khama on his appointment of Court of Appeal (CoA) judges. Government sought a stay of execution of orders made by Justice Tafa as a matter of urgency citing public interest but lost.