A protracted legal battle is in the offing after Botswana Democratic Party (BDP) MPs on Friday morning unanimously passed the amendment of the Court of Appeal Bill, 2017 tabled by Minister of Defence, Justice and Security Shaw Kgathi on urgency. Parliament suspended all other business to focus on the tabling and debate of the CoA amendment bill, which Kgathi said should be passed to comply with a recent court order made by Justice Abednigo Tafa of Lobatse High court. Attempts to block the Bill by MP for Francistown South Wynter Mmolotsi were brushed aside by the BDP majority.
He argued that Parliament still has ample time for the minister to bring the bill before it. The Bill proposes that Section 4 of the CoA Act prescribe the number of Justices of Appeal to be 12 and that the tenure of office of a Judge of the CoA be increased from 70 years to 80 years. The proposed changes were fiercely opposed by opposition MPs who felt that the amendment was meant to favour some judges on the CoA bench.
In fact MP for Selibe Phikwe West Dithapelo Keorapetse said the amendment to increase retirement age is designed to protect Judge President Ian Kirby and ensure he continues on the bench past the current requirement of 70 years.
Justice Tafa's judgment, delivered last month, struck down as unconstitutional Section 4 of the CoA Act which gave the President the power to determine the number of appeal judges. The appointment of appeal judges on more than one three-year term contract as has been practice for many years was also declared unconstitutional. Justice Tafa further declared unlawful and invalid, the appointment of appeal judges by the president other than the Judge President as prescribed by the constitution.
The judgement came after National Amalgamated Local Central Government and Parastatal Workers Union (NALCGPWU) challenged President Ian Khama on his appointment of Court of Appeal (CoA) judges saying no judge should be reappointed after serving a fixed term. They argued that the reappointment or extension of contracts is unconstitutional and should be reversed. Government sought a stay of execution as a matter of urgency citing public interest and arguing that there were two constitutional matters that were argued before the full CoA in January whose judgements were reserved.
Another reason for the stay of execution was that if the orders are not stayed, the Justices who presided over those cases will not be able to sign and deliver their judgements, to the prejudice of the litigants and the public at large. Tafa dismissed the application saying the prejudice to be suffered by the litigants in the two cases where judgement is pending before the CoA, was far outweighed by prejudice to be suffered by Manual Workers Union and many more litigants, should the court grant a stay only for the applicants to lose their appeal after more cases have been presided over by the concerned justices of appeal.
The Law Society of Botswana (LSB) and National Amalgamated Local and Central Government and Parastatal Workers' Union (NALCGPWU) have already announced intentions to return to court for redress should Parliament pass the amendment as is.