Law Society challenges President’s appointment of Judges

The Law Society of Botswana(LSB) and Judge nominee Omphemetse on Monday appealed a High Court ruling saying Botswana's President Khama has discretionary powers to ignore recommendations of the Judicial Services Commission(JSC) in appointing judges.

"We believe the President's role in appointment of judges is formal and that he is compelled to accept selection of the Judicial Services Commission. The Attorney General says no but since the establishment of the JSC it is given that President approves its appointment," said Kgalalelo Monthe, Chairperson of the Law Society of Botswana(LSB).
The case follows a decision by Khama, to reject the recommendation by Judicial Service Commission (JSC) in early 2015, to appoint lawyer Omphimetse Motumise to the bench. Instead, the President endorsed Dr Zein Kebonang - the brother of the Minister of Ministry of Minerals, Energy and Water Affairs in Khama's cabinet, Sadique Kebonang - for the position on an acting basis.

Section 96(1) of the Botswana Constitution says that the President shall appoint the Chief Justice. Secction 96(2) stipulates that, "the other judges of the High Court shall be appointed by the President , acting in accordance with the advice of the Judicial Services Commission."

The JSC selected Motumise as the best qualified candidate from amongst 20 applicants but Khama refused to appoint him. He also refused to provide reasons for his decision saying disclosing them 'would be prejudicial to that person,' and protected the candidates right to privacy.

The Law Society also expressed concern about the secrecy in appointment processes of JSC as unreasonable and unjustified and not in line with other jurisdictions like Kenya, South Africa, the United States and more recently Zimbabwe. But Attorney General represented by Advocate Anwar Albertus SC rejected claims.

"The appointment of judges is a presidential power that has its genesis in the royal prerogative," said Albertus. He said, "His decision is reviewable on grounds of illegality not grounds of rationality."

Judgement in this case is expected on the 2nd February 2017.


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