The LSB case � position paper

Correspondent | Thursday April 2, 2015 11:37

 

The independence of the judiciary necessitates that there should be freedom from influence or control from the executive and legislative branches of the government. Judges, under our dispensation, have the power of life and death over individuals through the imposition of the death penalty. They have the power to restrict the enjoyment of the freedoms and privileges enshrined in the Constitution. They interpret the law and the Constitution. Judges have the power to overturn or affirm legislation passed by the Legislature. They have the power to restrain or endorse the powers of the Executive. They wield the power to affect the daily lives of all the people in this country and beyond.

 

 Objectives of the Position Paper

Against the above background, the objective of the paper is to consider the adequacy of the provisions of the Constitution in relation to the appointment of Judges and in particular, the role of the Judicial Service Commission (JSC).

Appointment of the Chief Justice &

Judge President of the Court of Appeal

In terms of the Constitution, the President of Botswana appoints the Chief Justice and the Judge President of the Court of Appeal. They are appointed by the President in his absolute discretion. The Constitution does not provide for any process of consultation with the JSC or other institution. The foregoing is contrary to the practice in other jurisdictions such as in South Africa, the USA and the UK where the appointments are not the sole preserve of the President or Head of State.

 

 Appointment of Judges of the High Court

and the Court of Appeal

The Constitution provides for the appointment of judges of the High Court and the Court of Appeal. These appointments are also to be made by the President, but this time acting in accordance with the advice of the JSC.

 

The Judicial Service Commission (JSC)

Central to the appointment of both judges of the High Court and the Court of Appeal is the role of the JSC. The composition of the JSC is: the Chief Justice (who chairs the JSC), the President of the Court of Appeal, the Attorney-General; the Chairman of the Public Service Commission, a member of the Law Society nominated by the Law Society; and a person of integrity and experience not being a legal practitioner appointed by the President.

The Constitution provides that the JSC shall not be subject to the direction or control of any other person or authority in the exercise of its functions. However because it is weighed heavily in favour of the Executive with five out of six members of the JSC appointed by the President, this casts doubt on the ability of the JSC to act independently of the Executive. Compared to South Africa, Botswana’s JSC pales in comparison on inclusiveness and representativeness.

 

Appointment of Judges of the High Court and the Court Of Appeal of similar importance in the discussion on appointment of Judges is the role of the President in the appointment process. The Constitution provides that Judges of the High Court and the Court of Appeal shall be appointed by the President “acting in accordance with the advice of the Judicial Service Commission”

The highlighted portion is where the controversy and debate lies in so far as the role of the JSC, in the appointment of Judges by the President, is concerned. There is a view that the JSC simply makes a recommendation that the President is not bound by and a contrary one whish is that he is bound by such advice. The Society supports the latter.

The Meaning of the Phrase ‘Acting in Accordance with the Advice of the Judicial Service Commission.’

 On a plain reading, the phrase “in accordance with” means that the President shall appoint judges in agreement with, consistent with and in conformity with the advice of the JSC. In other words, the President cannot act against, or in opposition to, the advice given to him or her by the JSC.

It is quite clear, therefore, that the framers of the Constitution deliberately chose a scheme which seeks to entrench separation of powers through an independent judiciary that is a distinct arm from the State. This scheme operates for the public good. It ensures that people who appear before the individuals who make up the Judiciary have equal rights and the knowledge that they will receive a fair and impartial hearing. It follows that, in the process of appointment of individuals to the bench of these two courts the tenor set by framers of the Constitution must be adhered to. Whilst not perfect, the above lends credence to the view that the JSC has been created to amongst others act as a restraining force on the direct influence the President can have on matters relating to the Judiciary thereby enhancing separation of powers.

The Industrial Court Section 16 of the Trade Disputes Act provides that the President shall appoint the judges of this court. The JSC is not involved in this process and the President appoints at his sole discretion. The Law Society believes that the appointment of judges to the Industrial Court is completely at odds with Constitutional provisions relating to separation of powers and independence of the judiciary and needs to be aligned with provisions of the Constitution on appointment of other Judicial Officers.

 

Conclusion and Recommendations

In view of the above review of the Law the position of the Law Society of Botswana is that: The composition of the JSC is heavily weighted in favour of Presidential appointees thus creating potential for impeding independence or perceptions of lack of independence.

The JSC is best placed to know the best candidates for appointment and beyond that, its role is to ensure separation of powers.

It is for the foregoing reasons that the President must act “in accordance with the advice of” the JSC.

 In its advice to the President, the JSC should recommend the number of candidates required to fill the available vacancies since to recommend more would be tantamount to affording the President the discretion not given in the Constitution

Recommendations

In the light of the above the following recommendations are made: The JSC should not submit to the President for appointment more names than the vacancies available for Judge, that the transparency of the JSC should be looked into and possible areas of reform identified.

 

*This is an abridged version of the original