Law Society of Botswana (LSB) has received a boost in their quest to sue President Ian Khama and the Judicial Service Commission (JSC) over their refusal to appoint attorney Omphemetse Motumise as judge of the High Court.
LSB vice Chairperson Kgalalelo Monthe said that their legal team which will be under the Rantao Kewagamang Attorneys will now be assisted by an advocate from South Africa on pro bono basis. Advocate Wim Trengove SC, one of the sharpest legal minds in South Africa, will lead and Hephzibah Rajah who was admitted to the Johannesburg Society of Advocates in 2010 will act as junior counsel.
Monthe said that although LSB will file the case in a normal cause their attorneys have written a letter to the Attorney General to ask for a waiver for the thirty day statutory notice so that they can file the papers expeditiously. He said that though they appreciate that there are other cases which are also important they are of a view that theirs is of national interest as it touches on the integrity and credibility of the judiciary, “its independence, the doctrine of separation of powers and the rule of law.”
Monthe said that not a single day should pass with a dark cloud over the judiciary as this can erode the confidence people have on it. Initially LSB wanted to move an urgent application to interdict the appointment of Dr Zein Kebonang as acting judge of the high court but decided to review their position after an advice from their lawyers. The LSB Vice Chairperson said that they decided to take the normal cause so that they can focus their energies on the more important move which is a substantive application which will be launched once the statutory notices expire.
On Wednesday LSB lawyers, Rantao Kewagamang Attorneys issued a statutory notice to indicate that the acting appointment of Dr Kebonang will be challenged at the high court as being unconstitutional. LSB believes that Khama’s refusal to appoint Motumise as a full time judge and the decision to make any acting appointment are unconstitutional and ought to be reviewed and set aside.
Commenting on the issue, Tshiamo Rantao reasoned that the position has always been that the president has no discretion but to work on the proposal and advice of the JSC. “The president didn’t give reasons for turning down the advice of the JSC and he has the legal duty to reveal the reasons for the rejections,” said Rantao.
One of the attorneys who will be representing LSB, Dick Bayford said this is a groundbreaking case because it affects the independence of the judiciary. “Confidence in the judiciary must not be compromised and I hope the Chief Justice will appoint a panel of judges who are not connected to the case to hear it,” said Bayford.
Bayford said that one of the reasons they have also included the JSC as respondent in the case is because they seem to be in concert with what the president has done. “It seems they agree with the President for rejecting the appointment of Motumise because they have gone ahead and appointed an acting judge,” he said.
Commenting on suggestions that their case is just an academic exercise with slim chances of success as they seek to erode the power of the appointing authority, Rantao said according to the constitution, the President’s position is just to rubber stamp what JSC has recommended and there is nothing wrong with that. “The power to choose lies with the JSC and the role of the executive is to rubber stamp that,” he said.
Motumise, a former chairman of LSB applied for the post of judge and according to LSB he was recommended to President Khama who rejected the recommendation of JSC. On the 18th of March Rantao Kewagamang Attorneys acting for the LSB and Motumise wrote to President Khama, JSC and Attorney General a statutory notice seeking the decision to be set aside and that Khama’s refusal to appoint Motumise was unconstitutional.