"President's duty to appoint Judges is ceremonial" - LSB Counsel

Senior Counsel, Alec Freud has told the Court of Appeal that President Ian Khama cannot appoint a judge without the recommendation of the Judicial Service Commission (JSC).

In fact, he argues that the duty is only ceremonial. Freud is representing the Law Society of Botswana in a case in which they are challenging Khama’s rejection of Omphemetse Motumise for a position of a judge in 2015.

Last year when the case was brought to the High Court, the Law Society suffered a setback when they argued that the decision by the President was unconstitutional and irrational.

Appearing this week before a panel of five Court of Appeal Judges, Senior Counsel Freud argued that, “The law states that if JSC has recommended someone the President must appoint. He cannot appoint without a recommendation of the JSC. His powers to appoint are ceremonial. It is not a shared power but exclusively to the JSC.”

He also said that there should be a communication to the JSC and the rejected nominee. “How are they supposed to navigate to select another candidate when they do not know what is wrong with their first candidate,” asked Freud.

The bone of contention before Court of Appeal Judges is who has the powers to appoint a judge and separation of powers. In their heads of argument, the respondents argue that the President has the power and discretion under section 96 (2) of the Constitution to refuse to appoint candidates recommended for appointment by the JSC.

“As discussed more fully hereunder, the Respondents maintain that section 96 (2) envisages discrete and substantive roles and powers for both the JSC and the President thereby seeking to strike a delicate balance between their respective roles,” reads the heads of arguments.

The respondents further submit that, “to the extent that the Presidents does have the power and discretion to refuse to appoint candidates recommended for appointment by the JSC, this is a prerogative power, which is executive in nature, the subject matter of which is not justifiable by this Court.

“Alternatively, to the extent that the President’s power is reviewable, the Respondents submit it is reviewable only on the grounds of illegality and not on the grounds of irrationality.

Accordingly, the Respondents respectfully submit that the High Court erred in finding that the President’s power was reviewable on the grounds of irrationality.” Government is represented by Albertus, Grant Quixley and Yarona Sharp.