Constitution Bill 2024 is epitome of Judicial crisis

Adam Phetlhe

A Bill called the Constitution (Amendment) Bill No 4 of 2024 appears in the Extraordinary Government Gazette and is set to be presented to the National Assembly. The Gazette says ‘The object of the Bill is to amend the Constitution of the Republic of Botswana following the approval by Government of the Recommendations of the Presidential Commission of Inquiry into the Review of the Constitution of Botswana as agreed to and varied by Government Paper No 1 of 2023.’ To start with, the said Presidential Commission of Inquiry has been roundly criticised by some of Botswana’s finest Constitutional law scholars as a sham. By implication therefore, its outcome will be a sham as well. Law scholars in President Masisi’s cabinet know this is a sham of a Constitution meant to satisfy his preferences.  History will judge them very harshly for doing such a tragic disservice to Batswana. By invoking the Presidential Commission of Inquiry instrument, the President and those close to him sought to have a complete grip on what goes in the sham Constitution and what not. That is why during the so-called consultations with Batswana at Kgotla meetings, the President and the Minister in his office Hon Kabo Morwaeng, made it clear to those who cared to listen that they were against the direct election of the President contrary to what many Batswana had advocated for.  The Commissioners of the Constitutional Review Commission set the ball rolling by rejecting the direct election of the President proposal. One wonders whether we will have a referendum on the direct election of the President. But given how the sham was conceptualised, it is safe to say such is far-fetched.

In this conversation, I will be specifically discussing parts of the Bill with respect to the judiciary particularly with the appointments of the Chief Justice and the President of the Court of Appeal. One would have expected a progressive approach to judiciary matters will be uppermost in the minds of the powers that be to meaningfully reform legislation on the judiciary. Instead, the status quo remains firmly in place given the how the Bill is drafted. The judiciary has been in the spotlight from various quarters notably the Law Society of Botswana (LSB) in the manner judges at the High Court and Court of Appeal are appointed. There has also been questions around the composition of the Judicial Service Commission (JSC). The strong argument here is that 98% of the JSC is made up of individuals directly appointed by the President. Whatever spin anyone attempts to employ in order to                       discredit this view, it should be fair to suggest some members of the JSC directly appointed by the President owe their allegiance to him. The President wields so much power and authority over all the organs of the State and it is unimaginable any of the functionaries directly appointed by him would want to cross his path for their survival on the job and career prospects. So what does the Bill say about the foregoing?

Cosmetic amendment to the appointment of Chief Justice and President of COA

Section 28 (a) of the Bill provides that the ‘President shall, prior to the appointment, submit three nominees for the position of Chief Justice or President of the Court of Appeal to the Judicial Committee’ and (b) ‘The Judicial Committee shall assess and interview the three nominees under paragraph (a) and thereafter recommend two nominees to the President, one of which shall be appointed Chief Justice or President of the Court of Appeal, as the case may be’. The Judicial Committee shall be made up of five individuals solely and directly appointed by the President and will for all intents and purposes of this committee, render the Judicial Service Commission obsolete. But here is the thing: How will the President collect names of the nominees for the position of Chief Justice and the President of the Court of Appeal? Why shouldn’t I assume the nominees will be those in the President’s corner? Why don’t applications for these positions be publicly advertised such that those who feel they have what it takes apply? All in all, the needle has not moved to render the appointments of the Chief Justice and the President of the Court of Appeal fundamentally different from the sham that currently obtains.

Under the Memorandum part of the Bill at Clause 2 (o) and with respect to the President submitting ‘three nominees for the position of Chief Justice or President of the Court of Appeal’, it says ‘….This ensures transparency and credibility in the appointment of the Chief Justice and the President of the Court of Appeal’. Laughable if you asked me. It cannot be overemphasised that transparency and credibility are the cornerstones of any appointment process. This unavoidably should be the case with appointment of the Chief Justice and the President of the Court of Appeal but not in the manner suggested in the Constitution (Amendment) Bill No 4 of 2024. The process is tainted from the minute the President submits three nominees for the appointment of the most senior judges being the Chief Justice and the President of the Court of Appeal. In effect, it means two of the nominees submitted by the President will either be the Chief Justice or the President of the Court of Appeal…his preferred candidates for reasons only known to him. These will be the President’s man or woman specifically it will be justifiably argued, appointed to ‘protect’ him in whatever way possible.

On one hand and in a paper titled ‘Transparency and Accountability in the judicial appointment process’  by the Deputy President of the Supreme Court of Appeal L.T.C Harms, he says ‘According to legend Minister of Justice in the 1930s noted sardonically that judges, who have been appointed for political reasons, quite soon believe they have been on merit. In this simple anecdote lies the germ of issue of transparency and accountability in the judicial appointment process. Judges prefer to believe that they have been appointed on merit; the public does not believe they are but prefers they should be; politicians have their own view-they tend to prefer judges who will act predictably especially when they are no longer in power’. On the other, Due Process of Law Foundation lists the following as the minimum principles that should govern selection processes by first observing that ‘….It is therefore critical that only the most qualified candidates are appointed to the highest courts. This can only be ensured through a transparent selection process that is based on the merits of the candidates, rather than on their association or sympathy with the government in office or powerful special interests’. The minimum principles are that ‘the entities responsible for shortlisting the candidates must be autonomous; the appointment process, as well as the responsibilities of all actors engaged in the process, must be clearly established; the selection bodies must offer opportunities to different sectors of society to provide input on the candidates which should be investigated; public hearings must be held with candidates to assess their qualifications’. The mere fact that the President will submit three nominees to his personally appointed Judicial Committee that will interview and recommend them to him while their origins in terms of how the President nominated them is shrouded in secrecy fails to be in sync with the foregoing. 

It is clear from the way the Constitution (Amendment) Bill No 4 of 2024 is drafted that the President will continue to have a firm grip on the appointment of the Chief Justice and the Court of Appeal as has been the case prior the said amendment. Nothing has changed.  It will not be unfair to propose the Commissioners solely appointed by the President with clear terms of reference from him to ‘review’ the Constitution have wholesomely delivered his wishes. What is left is for his Members of Parliament to rubberstamp the sham of the Bill for him to sign it into law. I am prepared to be persuaded otherwise as always. Judge for Yourself!adamphetlhe08@gmail.com