Tension brews between High Court, Appeals Judges
Oarabile Mosikare | Friday June 26, 2020 16:50
In the prevailing set up, the Law Society of Botswana (LSB) has always advocated for a transparent process of appointment of Judges, which includes advertising the vacancies as they become available. For instance, while the process was used to appoint High Court Judges and Magistrates, the same could not be said for appointment of Justices to the Court of Appeal (CoA) bench.
The LSB found this step to be regressive and serving no purpose. Last year it said: “The new procedure will make the process more opaque in an era where everyone is routing for transparency.
The secrecy will invariably lead to bad choices for appointment. The society is at pains to understand the motivation and rationale for the Judicial Service Commission (JSC)”.
This week Mmegi sent a questionaire to the Registrar and Master of the High Court, Michael Motlhabi about the secret appointment of CoA Judges, amongst others. The publication sought to understand why the CoA is recruiting secretly with no published criteria and why is advertising posts like with the High Court not done.
It also wanted to know whether non-transparency is good governance practice and if the government supports the secrecy at the CoA. Furthermore, it also sought to know what proportion of Appeals Court is male white and whether this is justifiable with regard to the demographics in Botswana.
Yet again, it also wanted to know if the JSC was aware of a University of Cape Town (UCT) study in collaboration with Bingham Centre of the Rule of Law of 2016 that condemns the manner in which the CoA in Botswana selects or recruits judges. And what is their opinion about that study? Lastly, Mmegi wanted to know whether the Chief Justice, the Judge President of the CoA and the government do not consider it appropriate to have a known and transparent public criterion for appointment of CoA Justices.
In response, Motlhabi said the appointment of Justices of the CoA is the constitutional prerogative of the JSC, which is to regulate its own procedure in rendering advice to the President of Botswana on appointments.
“There is no secrecy surrounding such appointments, and the selection methods has always been in the public domain. Positions of the Court of Appeal have never been advertised to job applicants, since the Court has been appointed all along from distinguished and deserving jurists from home and abroad,” Motlhabi submitted.
He disclosed that the CoA comprises at present of six citizen Justices, and three visiting Justices to add objectivity and experience to the Bench.
“When a vacancy arises, the President of the Court consults with the Chief Justice and other colleagues to present names to the Commission for consideration. It is then for the JSC to make such recommendation to the President as it sees fit,” he said.
In conclusion, he said the Commission is not aware of the South African commentary on Botswana’s judicial system “to which you refer, nor are Justices of Appeal classified in terms of their race or origins”.
Responding to Motlhabi’s submission, one leading jurist said it was laughable if it were not tragic and also smacked of serious dishonesty.
“The JSC that appoints Judges of the High Court also appoints Justices of appeal. With the High Court Judges it advertises posts and interviews those who show interest but not so with Justices of the Court of Appeal, why? It cannot be fair and transparent that two people head hunt candidates and consult with each other as to who to appoint,” the jurist said.
He added that this was what was secretive about the appointment and was not in keeping with best practices and good governance.
The arbitrariness of the appointing process is glaringly clear and some Justices who serve at the High Court were overtaken by their juniors to serve at the CoA due to the secrecy.
“What is the justification? Is this not favouritism at the Bench? And is this what the price the nation pays for this kind of favouritism? The Registrar says the selection methods are in the public domain but does not share the criteria.”
He further noted that in any Judiciary, membership must reflect the demographics.
“In our case whites are disproportionately represented relative the demographics in the country. You see the reason why the President of the Court of Appeal entrusted with dispensing justice cannot be allowed to whisper to the Chief Justice to produce candidates to be rubber-stamped is because Court of Appeal is not a private company, owned by the two, it is a public institution!”