The Court of Appeal has reviewed and set aside President Ian Khama's decision of refusing to appoint attorney Omphemetse Motumise to the bench as a judge following a recommendation by the judicial Service Commission (JSC). The judgment, delivered on Wednesday morning, means Motumise can now be lawfully appointed a judge as recommended. However, the decision was not unanimous as almost all the judges differed in their reasons for the conclusion they reached. Although they differed in some of their reasons Lord Abernethy, Lord Hamilton and Justice Brand agreed with the conclusion of Justice Isaac Lesetedi reviewing and setting aside Khama's refusal to act on the recommendation of the JSC for the appointment of Motumise as a judge of the High Court. Justice Lesetedi observed that Khama in his letter of refusing to act on the recommendation of the JSC did not provide any reasons for such refusal. Even in court papers Khama refused to declare such reasons, safe that he had sound reasons for not acting on the advice.
"It is apparent that both JSC and the President were not properly advised on the remit and powers of the JSC and those of the President in the implementation of Section 96(2) of the Constitution. The President was not entitled to turn down the recommendation of the JSC as his role was to act in accordance with the JSC. It is the JSC which determines when to fill a vacancy. It initiates the process of filling up a vacancy by issuing advertisements and setting out the minimal qualifications stipulated in the constitution for appointment to that office....In the absence of any explanation by the President therefore, the decision stands to be reviewed and set aside," he said. On the contrary Justice Monametsi Gaongalelwe differs with four other judges of the CoA and in his decision dismisses the Motumise appeal, saying; "There is no universally accepted meaning (for the) phrase 'Acting in accordance with the advice'. It all depends on the regime of a particular country and the context in light of provisions in the Constitution. I agree with the conclusion of the High Court that in this matter the phrase simply means the President is not to appoint a person who has not been recommended by the JSC".
All the judges rejected applications by Motumise and the Law society of Botswana for court to order that JSC interviews of candidates be open to the public and that the Commission must make public the outcome of its deliberations on the appointment of judges. The appellants had predicated their arguments on the principle of public interest and transparency, which court said are neither set out as requirements nor legal provisions. "Whether or not the JSC conducts its business of interview of candidates in the open or making public the outcome of its deliberations on the appointment of judges is a decision to be made by JSC and the court has no right in the absence of any law empowering it to do so, to intervene and regulate the commission's procedure," said Justice Lesetedi.