Judiciary goes on trial

The independence of our judiciary will be tested when the landmark case implicating justices of the highest court in the land reaches the Court of Appeal.

Government has filed a notice of stay of an order made by the High Court over the appointment of Appeals court justices, pending the resolution of the appeal. Government is appealing on certificate of urgency, a decision by Lobatse High Court Judge Abednego Tafa declaring the composition of the Court of Appeal justices ‘Constitutionally invalid’. The court ruled in favour of Amalgamated Local Central Government and Parastatal Workers Union (Manual Workers Union) that Section 4 of the Court of Appeal Act is invalid and it is unconstitutional for the President to renew the appointment of justices of Appeal on the expiry of a three-year appointment.

Arguments for the staying of the High Court order are scheduled to be heard before Tafa on Monday. When making the ruling last week, Justice Tafa ordered that the appointment of Judges of Court of Appeal Justices: Stephen Gaongalelwe, Isaac Lesetedi, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie is constitutionally invalid. The judge further declared Section 4 of the Court of Appeal Act as constitutionally invalid and therefore struck off.” Section 4 of the Court of Appeal Act states, ‘the Court of Appeal shall, in addition to the judges provided for it under the Constitution, consist of such number of Justices of Appeal as the President of Botswana may consider necessary to appoint.”

The section was struck down because Justice Tafa maintains it is incompatible with Section 99 (2) of the Constitution, which states that: “the judges of the Court of Appeal shall be (a) the President of the Court of Appeal; (b) such number, if any, of Justices of Appeal as may be prescribed by Parliament”.Government through the Acting Attorney General Morulaganyi Chamme has argued that it is urgent that the operation of the orders made by Justice Tafa be stayed so that the Court of Appeal continues to operate in the public interest pending the intended appeal. In its court papers filed this week and seen by Botswana Guardian, government wants the appeals court to dismiss the Manual Workers case and holds that Section 4 of the Court of Appeal Act is Constitutional.

Government also wants the court to order that appointment of a justice of appeal for more than one (1) three-year fixed term contract as not inconsistent with the Constitution. The state argues that the High Court erred in failing to recognise that by Act 44 of 1972, parliament authorised the President to appoint four (4) justices of Appeal, in addition to those provided for under the Constitution, which authority was never withdrawn but was expanded by Act 39 of 1980, which introduced the present Section 4 of the Court of Appeal Act. The state contends that accordingly, and notwithstanding any other finding, the court erred in holding that the appointment of four (4) of the affected judges is unconstitutional due to Section 4 being struck down.

“The lower court erred in failing to interpret Section 4 in its historical and current context in order to decide on its constitutionality and in not applying the presumption in favour of constitutionality- the section has been in force for 37 years without, and still is not causing any prejudice or difficulty to any litigant, including the respondents (Manual workers), which has won several of its cases at the Court of Appeal,” reads the papers. The attorney general further argues that the High Court erred in holding that the determination of the number of justices of Appeal needed to cope with its case load from time to time constituted a matter of high policy which could not be delegated by Parliament rather a routine administrative duty to authorise an increase of such number when the case load so demanded, which duty could properly be delegated by Parliament.

“The court erred in not appreciating that no single provision of the Constitution is to be considered in isolation, but rather, all related provisions are to be brought together and construed so as to achieve the great purposes of the instrument,” reads the court papers.
Manual Workers Union’s Chief Executive Officer Johnson Motshwarakgole said it is an unfortunate development that government is appealing. Motshwarakgole reckons that government could have just used the opportunity of the current sitting of Parliament to fix the anomaly. He stated on Wednesday that they are however not surprised that government has appealed because before the case was heard at the High Court the attorney general had indicated that they wanted to settle the matter out of court only to make a u-turn at a later stage.

He said they would be in touch with their lawyers about the development and they are prepared to fight for the integrity of the judiciary. “Now they have opened a can of worms. They should have just taken advantage of the ongoing Parliament sitting to rectify the situation. They have to convince Justice Tafa that they have prospects of success at the Appeals court. If they fail at High Court we would see how they deal with the matter if they decide to directly approach the Appeals court since the current justices are implicated in the matter,” said Motshwarakgole when responding to enquiries on the appeal notice by government.

According to Tafa, the operation leading to striking down Section 4 of the Court of Appeal Act would be however suspended temporarily. “The operation of Order (2) above is hereby suspended for a period of 6 months to allow the relevant authorities to take the necessary steps to ensure that the appointments of the Court of Appeal Judges and all other respondents who have not been re-appointed after the expiry of three-year fixed term contracts are regularised,” he said.

Local attorney Kgosietsile Ngakaagae foresees turmoil. He stated in an interview that a neutral bench would have to be constituted to preside over the case. According to Ngakaagae the trouble is that any bench if constituted, even from members of the High Court would likely be unaccepted as the judge president is a member of the Judicial Service Commission (JSC), an interested party. He indicated that none of the justices in this case can form a panel because one cannot be a judge in one’s own case. “The most reasonable course would be for government not to move but to await a legislative solution. It is a state of judicial paralysis. This unfortunate state will affect both parties equally as the union would likely want to appeal too if unsuccessful. The trouble with the present case is that it promises turmoil on all fronts.

Retroactive legislative solutions of the kind proposed in Parliament would likely suffer a challenge of constitutional validity. I would personally advise a constitutional as opposed to a legislative solution”, said Ngakaagae. He indicated that the issue of leave to appeal wouldn't arise in this case, as the High Court is a court of first instance. Asked if the neutral bench would mean a composition of justices from outside the country, Ngakaagae said, “Not necessarily. The problem is that you cannot appoint court of appeal judges on an ad-hoc basis. So, we really have few options. Our fall back position would have been high court judges who are ex-officio court of appeal members”.

He explained that only Ian Kirby, the Court of Appeal President can constitute the panel and he is conflicted by virtue of JSC membership. According to Ngakaagae technically speaking, a panel can be constituted from local material “but circumstances may render such panel incompetent hence the need for either a legislative or constitutional solution”.