Khama under the gavel – Court of Appeal crisis


Justice Abednico Tafa handed down Judgement in favour of the National Amalgamated Central, Local & Parastatal Manual Workers’ Union (the Union) on the 16th February 2017 declaring that the president does not have the power to proscribe the number of judges and as a result finding Section 4 of the Court of Appeal Act unconstitutional. The High Court Judge further held that the renewal of fixed 3 year contracts for 6 Court of Appeal Judges by the president is also unconstitutional. On the 17th February the Court of Appeal announced it could not sit in light of the judgement. Creating a crisis within the judiciary and a constitutional upheaval.
The case brought by the union focused on the separation of power of Parliament, the executive and the judiciary; a growing concern highlighted by a spate of litigation focusing on the erosion of judicial independence due to executive oversight in the appointment and removal of judges. In the Motumise and Others v The President and the Dingake and Others v The President the approach by the executive and its attorney, to the question of separation of power between the judiciary and the executive has been one in favour of executive oversight of the former. The approach adopted by the executive in the current case reaffirms the position and despite the importance of the principles under determination the result the policy of the executive entrenching its control over the judiciary has culminated in the lack of communication, implementation and rectitude between the government stake holders to avoid a national crisis.
Under the State Proceedings (Civil Actions by or Against Government or Public Officers) anyone seeking to sue government under a civil claim must give notice to the attorney general of their intention to sue. Such notice is intended to allow the attorney general the opportunity to investigate the claim, obtain instruction from the client, ascertain a defense if any and settle the matter if there is no defense available with a view of avoiding costly and unnecessary litigation. As with any attorney, the attorney general can only proceed to settle or litigate a matter with the approval of the client who has given the appropriate instruction based on the attorney general’s advice.
The union, through its legal representative Mboki Chilisa of Collins Chilisa Legal Consultants issued it Statutory Notice to the attorney general in early 2015 setting out their demands and basis for their claims against the president, the Judicial Service Commission, Speaker of the National Assembly, the attorney general and 7 judges of the Court of Appeal. The grounds of complaint was that Section 4 of the Court of Appeal Act, as well as the extension of contracts of employment for court of appeal judges concentrated executive authority over the judiciary and eroded the separation of power.  As set out by Tafa J, the attack by the union required two determinations: first whether Section 4 of the Court of Appeal Act was incompatible with section 99 (2) of the Constitution and secondly whether it was unconstitutional for the President to renew a Court of Appeal judges contract for 3 years after the first contract had expired.
Upon receipt of the Union’s Statutory Notice the attorney general in communication to the Chilisa conceded the first point raised, that parliament had not proscribed the number of judges and the Court of Appeal Act was therefor in violation of the Constitution. The Attorney General suggested to settle the claim only in this regard by ensuring the necessary amendment to the act would be moved in parliament. In doing so the attorney general could only have been acting in accordance with the instructions of the clients. The president, Speaker of National Assembly, the Judicial Service Commission and the 7 judges were at that stage at least, in agreement that the Court of Appeal Act was in violation of the Constitution. Of all the respondents only two do not have a legal background, the president and the Speaker of the National Assembly. It is impossible to fathom that having instructed their legal representative to settle this aspect of the claim in the manner suggested, that they would subsequently change their instructions; yet attorney general’s conduct of the litigation reflects otherwise.
The settlement offer was refused by the union for failing to address the constitutional prohibitions on the president extending Court of Appeal judge’s contracts for an additional period of 3 years. The Union was of the view that given the constitutional issues involved the attorney general could concede the first point and still argue the other.
The litigation’s proceedings reflects that not only did the attorney general proceed to argue against the entire merits of the union’s case but went so far as to raise technical legal issues that the union did not have a right to make the constitutional challenge before the Court. Tafa J dismissed this latter argument noting that the union had been given such audience in the past in respect of constitutional challenges.
The duty of lawyers in respect of legal argument is that they are expected to “raise fearlessly every issue, advance every argument and ask every question, however distasteful…” so long as the raising of issues is done in good faith. The ideals that govern a lawyer’s arguments include their duties to the public interest, the profession’s independence, limits on over-zealous representation and the consequences of failing to uphold a lawyer’s duty to the court. The attorney general bares a yet more onerous obligation in protecting the Constitution and upholding the rule of law as the primary “client”.
The attorney general’s obligation in serving the Constitution, the rule of law and the public is not a matter of mere altruism, it is the cornerstone of the role and function of giving advice to state actors and key to the representations advanced in court. In spite of these ethical obligations no concession was made to Tafa J. during argument of the case in accordance with the initial concessions.
An inspection of the hansard reveals that neither the speaker nor the executive addressed the unions concerns in parliament relating to the litigation and the legislation required to amend the anomaly between Section 99 (2) of the Constitution and Section 4 of the Court of Appeal Act. Parliament, in whom Tafa J found to be the sole repository of the power to rectify the anomaly was hamstrung by the lack of knowledge of the instructions given to the attorney general. Parliamentary Counsel was also as a result unable to comment independently to its principle; the legislature.
The Administration of Justice, represented by both the chief justice and the judge president as members of the judicial service commission in the proceedings equally took no remedial action based on their instructions to the attorney general. As a result, the Minister of Justice Security and Defense under whose mandate the Court of Appeal Act fell, also took no remedial action to rectify the act through an amendment in order to ensure compliance with the constitution and the accepted position of the government litigants that Section 4 of the Court of Appeal Act was inconsistent with the Constitution.
The inaction by the state parties in their respective spheres of influence and the adoption of the current executive policy in court, reinforced the executive stranglehold on the judiciary undermining the separation of power. Tafa J found the attorney general’s position to be untenable against the provisions of the constitution in respect of independence of the judiciary.
Similarly the Court dismissed the second leg of the argument by the attorney general that the executive has the power to extend judges contracts by finding that the perception by the public of executive interference into the judiciary and the undermining of the independence of the judiciary directly impacted on democratic principles.
The notion of “executive mindedness” referred to by Kirby J at the opening of the Court of Appeal cession does not only extend to judges. It extends also to public officials that prefer a construction which will carry into effect the plain intention of those in authority either through inaction or positive enforcement of executive policy.  The misconstrued assumption that stewardship equates with ownership loses sight of the fact that if one has been given authority to manage it does not mean they own it. The Constitution belongs to all, not the head of state.
As was stated by the Court of Appeal in Peloewetse v the Permanent Secretary to the president when emphasizing the crucial role of judicial independence in a democratic society: “[I]n a democracy, the government of the people is for the people. Where conduct of the government on the face of it appears questionable, it is the right of the people to question it. Knowledge by a government that its actions are subject to question contributes to the promotion of good governance. As indicated, one of the mechanisms developed in recent years by which executive action can be tested against standards of fairness, predictability and transparency, is the procedure for judicial review”.
The constitutional crises that has arisen should have been avoided had all the state actors been alive to their greater obligations than those to their executive office.