Motumise, Courts Have Last Laugh As Khama Eats Humble-Pie

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  • LSB says the rule of law has prevailed
  • Vilified Motumise says he does not have anything to say
  • Decision leaves outgoing acting judges in the lurch

TEFO PHEAGE

The President Ian Khama has finally and disgracefully bowed under the pressure of a High Court ruling to appoint attorney Omphemetse Motumise as a High Court Judge following a relentless pursuit for justice by the Law Society of Botswana.
Khama’s hesitant appointment comes after the LSB had instructed their lawyer, Tshiamo Rantao to apply for a Court Order to force Khama to fulfill his official function as the head of the executive, to appoint Motumise as directed by law and the Courts, after years of legal battles.
The Minister of Defence, Justice and Security, Shaw Kgathi yesterday held a secret media briefing with Botswana Television to make a pronouncement on Motumise’s appointment as well as that of other previous applicants in an apparent effort to appear magnanimous.
At the briefing, Khathi announced that Khama has decided to uphold the Court ruling that found that he has no powers to disobey the recommendations of the judicial services commission.
Setting aside President Khama’s decision not to appoint Motumise in April this year, Court of Appeal Judge Isaac Lesetedi noted that “It is apparent that both JSC and the President were not properly advised on the remit and powers of the JSC and those of the President in the implementation of Section 96(2) of the Constitution.” He added that, “The President was not entitled to turn down the recommendation of the JSC as his role was to act in accordance with the JSC. It is the JSC which determines when to fill a vacancy. It initiates the process of filling up a vacancy by issuing advertisements and setting out the minimal qualifications stipulated in the constitution for appointment to that office….In the absence of any explanation by the President therefore, the decision stands to be reviewed and set aside.”
Kgathi said Khama has decided to obey the Courts even though he disagrees with its ruling that he has no powers to disregard the recommendations of the JSC. Kgathi went on to state, without providing a basis, that investigations have shown that Motumise was not fit for duty; he did not elaborate further despite the Court of Appeal having indicated that the President should present such evidence, if it existed to the JSC. To date, the JSC has not been given such evidence by the President.
Prior to Motumise, Khama had disregarded the recommendations of the JSC to appoint Lizo Ngcongco and Gabriel Komboni. In deciding to appoint Motumise, Khama extended an invitation to Komboni and Ngcongco to indicate whether they would be willing to serve on the bench.
In a brief interview with this publication, the Law society of Botswana Chairman, Kgalalelo Monthe, welcomed the move saying “at last the rule of law has prevailed, there is nothing to clap hands for.”
Motumise when contacted for comment, said he does not have a comment while his lawyer, Tshiamo Rantao said while it is disappointing to have learnt of the appointment through the television. Rantao indicated that he is happy that the rule of law has finally prevailed, in accordance with what they have been saying and as they have been highlighting to Khama.
“We are not shocked however because a lot of surprising things have happened. All we are happy for is that a fit man as recommended by the judicial service commission has been appointed,” he added.
The decision by Khama comes in at a time when the judiciary is in turmoil, owing to a series of challenges, particularly those presented by outgoing acting judges, Justice Kabelo Lebotse of Lobatse High Court, Gaborone High Court Judge, Justice Boipuso Tshweneyagae and Lobatse High Court Judge Jennifer Dube who were headhunted as “stand-ins” following the suspension of Justices Key Dingake, Modiri Letsididi, Mercy Gaarekwe and Rainer Busang, who were at the time facing charges of revolting against Chief Justice Maruping Dibotelo. The acting judges’ contracts come to an end this December whereupon they will be effectively unemployed.
Khama decries ultimatums given to them.
The Permanent Secretary to the President, Carter Morupisi when asked why they have not been compliant said the President does not work by anybody’s ultimatums but acts when the time is right. “You don’t tell the president when and how to act,” he stated with a singular lack of understanding of court process, in reference to a series of correspondences to  Khama from Motumise ‘s lawyers.
Was Motumise defamed?
In his statement the Minister, Kgathi made a shocking statement saying  investigations have shown that Motumise was not fit for duty, but did not elaborate further on the issue in what some lawyers say is defamatory of anyone, let alone in reference to the incoming judge. Lawyers argue that although appointing Motumise was a bitter pill to swallow for Khama, it was rash to make such a remark which shows a disregards for the rule of law. They say the comment portrayed Khama as bitter and in distress over the forced appointment instead of hailing the Courts Judgement for upholding Botswana’s democratic values.