Judges devalued for their decisional independence - Justice Motswagole

Threatens to sue President Masisi, Chief Justice, Appeals Court president Argues there is discriminatory impaneling of Court of Appeal judge

Hard- working and diligent credible judges are devalued and victimised for their independence, Justice Tshepo Motswagole has argued.

Through his attorneys, Monthe Marumo and Company incorporating Molatlhegi and Associates, Motswagole has issued a notice to sue President Mokgweetsi Masisi, Chief Justice and Chairman of the Judicial Service Commission ( JSC) and President of the Court of Appeal Tebogo Tau for discrimination in the selection of judges for promotion.

Attorney Busang Leburu stated in the notice that there is a reasonable suspicion that the judges are being victimised for their decisional independence in order to pressure them into capitulation and betrayal of the oath of office in consideration of monetary advantage. “The arbitrary and discriminatory impanelling of the judges of the Court of Appeal from time to time whenever there is such a need. The Administration of Justice, the Chief Justice and/ or the Judge President of the Court of Appeal have invited only certain Judges of the High Court to sit in the Court of Appeal to the total exclusion of others, without following a fair and objective process that ensures that every Judge of the High Court, being also members of the Court of Appeal, has a proportionate and equal opportunity to sit at the Court of Appeal”. Leburu argued that this “discriminatory and unfair process of inviting a select few based on patronage and irrelevant factors is arbitrary, offends the principles of fairness and transparency, and is tantamount to unlawful suspension of members of a court.

Our client has been a victim of this practice,” reads the letter. It has been argued that the President of the Court of Appeal has, contrary to section 9 of the Court of Appeal Act transformed this illegal practice into a rule of procedure by enactment of Rule 3, sub- rules 1 and 9 of the Rules of the Court of Appeal, under Statutory Instrument ( SI) Number 172 of 2018. “In our view thereof the said SI or the offensive Rules, are liable to be struck off, any systematic exclusion of members of the court is ultra- vires section 9 of the Court of Appeal Act and section 99 of the Constitution to the extent that the Court of Appeal is constituted of members of equal worth and jurisdictional power,” explained Leburu, adding that the said enactment is consequently liable to be struck off. “Our client has instructed us to issue a statutory notice of his intention to institute legal proceedings pursuant to section 4 of Cap 10: 01 after the lapse of 30 days, as we hereby now do, to you and each of the Constitutional Functionaries and Public Office Bearers mentioned. “There is arbitrary and discriminatory selection of the Judges of the High Court for career advancement and elevation to the more prestigious offices of the Chief Justice, the President of the Court of Appeal and the Justices of Appeal.

“This very act of bad administration is directly contrary to and in frustration of the clearly expressed legislative and constitutional intention and policy objectives and values and consequently unlawful. “The absence of a clear written policy on Career Development Path in the face of section 127( 6) of the Constitution providing for appointments on promotion and sections 3( a) and 15, subsections 1 and 2 of the Constitution proscribing any discriminatory and selective treatment, has opened the door to habitual and wanton disregard for statutory prescription on seniority in section 5( 3) of the Court of Appeal Act and section 4 of the High Court Act,” said the lawyer on behalf of Justice Motswagole. He avers that this has consequently led to a breach of constitutional requirement for judicial independence and impartiality enshrined in sections 10( 1) and 10( 9) of the Constitution, with high likelihood to undermine the public confidence in the Judiciary.

He pointed out that by virtue of section 127( 2) of the Constitution, the offices of Judge of the High Court and Justice of Appeal, as are those of the President of the Court of Appeal and the Chief Justice, are part of the Civil Service of the Government.

Likewise, he said sections 4 and 5 of the Public Service Act, list the Judiciary as part of the governmental structure of Botswana. Leburu explained that Section 7 of the Public Service Act enjoins every appointing authority or supervising officer when dealing with human resource matters to prevent nepotism and patronage.

“The arbitrary selection of Judges of the High Court to sit as part of the Court of Appeal Panel is inimical to the independence and impartiality of the Judiciary. Whilst the scope of application of the Public Service Act to the judicial officers may be open to debate, the principles espoused therein are applicable to any public office by necessary implication. “The failure to advertise vacant offices of the Court of Appeal and engaging in secretive system of ascertainment of interest of potential candidates is improper and contrary to law.

This is especially so in light of the application of an acceptable selection method at the High Court.

“There cannot be any doubt that the practice adopted by the JSC at the Court of Appeal is contrary to the rule of law especially the requirement for transparency, objectivity, equality of opportunity and non- discrimination enshrined in sections 3( a) and 15, subsections 1 and 2 of the Constitution.”