A victory by attorney Omphemetse Motumise at the Court of Appeal on Wednesday against rejection by President Ian Khama remains a hollow academic exercise, pending a decision by the latter. By late Friday evening Permanent Secretary to the President (PSP) Carter Morupisi said there was no response from the President on the matter as they are yet to receive legal opinion from the office of the Attorney General. "AGs are our legal advisors. I believe they are still studying the judgment and will advise the President in due course," he said. Khama's refusal to appoint Motumise following a recommendation by the Judicial Service Commission (JSC), yet refusing to state reasons, was reviewed and set aside by four of a five member bench of the Court of Appeal (CoA). In an affidavit last year Khama said he considered matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary, and questions of policy when rejecting Motumise’s nomination for the bench. Khama said such considerations involve information to which the JSC does not have access and would not be properly equipped or mandated to evaluate. "There are occasions when it would be inappropriate to appoint a nominee, where the reasons for doing so will adversely reflect on the integrity, character and reputation of the relevant nominee," said Khama. Now that the circumstances and Khama's view about Motumise has not changed, it remains to be seen if he will comply with the order setting aside his decision. Motumise and his lawyer Tshiamo Rantao declined to comment on the outcome of the lawsuit or shed some light on their next move. "As I have maintained throughout the trial, I am not in a position to comment on the issue," said Motumise. The CoA 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. Meanwhile, Justice Monametsi Gaongalelwe differed with the other four judges and dismissed Motumise's appeal with costs, 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.
How it happened
Following the resignation of Justice David Newman at the end of February 2015, the JSC resolved to fill the vacant post to avert disruption of business at the High Court. Twenty-two applicants responded to the advertisement, but only four were shortlisted. They were attorney Omphemetse Motumise of Moeletsi Motumise Attorneys, Dr Zein Kebonang – then Director Legal Services, Botswana Communication Regulatory Authority (BOCRA), Julia Sarkodie Mensah – former acting judge and Tapiwa Marumo – a judge of the Industrial Court. This was the first time Motumise applied for the job, while Justice Marumo – who had also been rejected by the President after JSC recommendation – was applying for the fourth time. Dr Kebonang on the other hand, was trying his luck for the third time. After interviews were conducted, Motumise scored the highest points with each of the Commissioners, followed by Marumo, then Sarkodie Mensah and Dr Kebonang. The JSC expressed satisfaction with the outstanding professional history, experience and disposition of Motumise and unanimously recommended his appointment to Khama. The recommendation was done based on Motumise’s impeccable and outstanding record as a legal professional, experience, commitment, above board aptitude attested by his performance over the years. The decision was communicated to Morupisi on 24 February 2015, but a month later Khama rejected the recommendation. To prevent a backlog of cases and increased workload for the remaining judges, JSC then resolved to approach the three other candidates in the shortlist in their order of performance for appointment as an acting judge for 12 months. Justice Marumo and Sarkodie Mensah declined the offer, which Dr Kebonang accepted.