5 September 2017

Botswana: Khama to Uphold CoA Ruling

Gaborone — President Lt Gen. Dr Seretse Khama Ian Khama will uphold the Court of Appeal (CoA) judgement relating to the case in which the Law Society of Botswana and Mr Omphemetse Motumise contested the decision to decline to appoint the latter to the High Court bench.

Addressing a press briefing Monday, the Minister of Defence, Justice and Security, Mr Shaw Kgathi said while President Khama was of the view that the matter was incorrectly decided, he would nonetheless uphold the CoA's decision.

Mr Kgathi said President Khama believes that the judgement was in contrast with the Constitution, which vested the President with the power to appoint judges to the High Court bench.

Mr Kgathi said government would never disrespect a court ruling no matter how it disagreed with it.

He added that President Khama would, albeit reluctantly, appoint Mr Motumise to the position of judge of the High Court.

The minister said it was despite the fact that the vetting process had found Mr Motumise to be unsuitable for appointment to the position of a High Court judge.

The minister said it was worth noting that Mr Motumise was not the first nor the only individual whose recommendation for appointment to the High Court bench had been declined.

He noted that during the tenure of office of the late Chief Justice, Justice Julian Nganunu, recommendations for the appointment of Messrs Lizo Ngcongco and Gabriel Komboni were turned down.

Mr Kgathi also said it was President Khama's view that in the interest of fairness, the previous candidates whose recommendations for appointment to serve in the bench were declined, be extended the same gesture as Mr Motumise, should they still have interest to serve as High Court judges.

The minister said it was worth noting that in ruling against the findings of the High Court, the CoA decision was not unanimous.

He added that it lent weight to President Khama's view that the matter was not correctly decided.

He said President Khama agreed with the High Court judgement, whose ruling was in line with the Constitution in bestowing the power to appoint High Court judges on the President.

He added that it was government's view that the CoA's decision that vested that power on the JSC was fundamentally wrong.

He said while the High Court had correctly found that the President had the final say in the matter, the CoA had decided otherwise, relegating his role to that of just a participant in the whole process.

Minister Kgathi said despite the CoA deciding on the contrary, it remained government's view that the JSC could only recommend persons for appointment to the position of High Court judge, and not to be the actual authority to do the appointing of judges.

He said the essence of the CoA judgement was that the President had no prerogative to turn down a JSC recommendation, a decision which he said government viewed as wrong. Mr Kgathi said although in disagreement with the judgement and being of the view that the JSC's role was simply advisory, President Khama would uphold the court's ruling and appoint Mr Motumise to the position of High Court judge.

Source : BOPA

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