Botswana’s Court of Appeal remains in a state of operational paralysis after 6 of the 8 sitting Appeal Judges were declared to have been illegally appointed by President Lieutenant General Seretse Ian Khama.
Justice Abednigo Tafa of the Lobatse High Court delivered a judgement on the 16th February 2017 saying the appointment of Judges of the Court of Appeal namely Stephen Gaongalelwe, Isaac Lesetedi, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie were “constitutionally invalid” because they were appointed to more than one fixed term by President Khama contrary to section 101(1) of the Constitution.
He also declared that the appointment of the judges were invalid on grounds that the number of Justices of Appeal had not been prescribed by Parliament contrary to section 99(2) of the Constitution. An effort by the ruling party to regularize the situation has failed and the ruling party is now seeking legal advice to remedy the situation.
Despite winning 47% of popular vote, the ruling party which has 37 seats in the 61 seat National Assembly could have passed Amendment Bill, even if the opposition voted against proposed amendment but elected not to do so with some ruling party legislators uncomfortable with proposed amendments.
“The constitution requires amendments to be gazetted for 30 days before they are brought before Parliament. Not gazetted today and brought to Parliament the next day,” revealed an irate Duma Boko, who is President of a Coalition of Opposition parties called the Umbrella for Democratic Change (UDC).
He said, “They also sought to amend section 101 of the Constitution which requires a referendum under section 89(4) of Constitution to change retirement age of Court of Appeal Judges from 75 to 80 years. They thought they could operate through parliamentary standing orders. It was wrong and unconstitutional. If they had proceeded we would have taken matter to court.”
The Minister of Defence, Justice and Security Shaw Kgathi sought to defray criticism of President Khama’s actions by suggesting the judgement was misunderstood and introduced amendments rejected by some members of the ruling party caucus in Parliament.
“The High Court held that the order invalidating section 4 of the Court of Appeal Act is suspended for a period of 6 months to allow the relevant authorities to take the necessary steps to ensure that the appointments of Justices of Appeal who have not been reappointed after the expiry of three year fixed term contracts are regularized,” said Kgathi.
Opposition parties and union leaders remain unhappy President Khama did not use the judicial crises to appoint more local judges and view his actions as a vote of no confidence in citizen judges.
“I have never before seen a law in this country legitimatizing the wrongs by Executive over a period of 37 years. The effect of the recent judgement is that their decisions are supposed to be nullities because the Judges were not properly appointed. Laws are effective from the time of their enactment. This bill is reducing our Parliament to a circus,” said Tobakani Rari, Secretary General of BOFEPUSU.
He said, “We do not expect these Court of Appeal Judges to be impartial or neutral when listening to cases involving the Manual Workers Union or BOFEPUSU. They will be adjudicating cases from those who were questioning their independence and legitimacy.”
Botswana Movement for Democracy(BMD) President Ndaba Gaolathe, maintained that it is not the purview of Parliament to enact retrospective legislation and legalize decision that have been declared illegal by the courts.
“We want to lobby for further judicial independence by calling for public hearing before the appointment of judges. It is also improper to increase age of Court of Appeal Judges from 70 to 80 years without going for a referendum as has been done previously,” said Gaolathe.
A referendum on judicial reform was held in Botswana on 3 November 2001, having been originally scheduled for 6 October. One of the questions asked was regarding raising the retirement age of High Court and Court of Appeal judges from 65 to 70. The proposal was approved, with only a 53.93% approval, far lower than any of the other proposals.
The referendum asked eight questions about judges and courts, all approved, seven by a margin of over 70%. Voter turnout for the referendum was just 4.9%, with 22,600 votes from a total of 460,252 registered voters.