On the 2nd March Tafa J delivered a ruling against the Attorney General refusing to stay his previous judgment. The Attorney General’s application and the ruling against them would not have been necessary save for a clerical error on Tafa’s previous judgment in the same matter on the 16th February.
In the original case brought by the National Amalgamated Local and Central Government and Parastatal Workers Union vs The President and Others, Tafa J found that the Court of Appeal Act of 1972 as amended was unconstitutional where it allowed the President to appoint Judges when parliament had not prescribed the number of judges and further that extending Court of Appeal Judge (CoA)’s contracts for additional periods of 3 years post reaching retirement age violated the separation of powers and security of judicial tenure. The judgment had a profound effect on the Judiciary, Legislature and the Executive, with each arm of government scrambling to rectify the wrong as found by Tafa, in spite of suspension of the order relating to the provisions of the Court of Appeal Act.
The order as it was initially framed led to the implementation of Tafa’s judgment in respect of the immediate termination of 6 Court of Appeal judges. His order in this respect was however put into effect in error due to a clerical mistake in the numbering of the order. According to the judge’s explanation in the application brought by the Acting Attorney General to put a temporary hold on his order, he acknowledged that his numbering in the initial judgment was a mistake and led to confusion as to what had been suspended. The error not only forced the Court of Appeal cession to terminate its sitting last month but compelled the Acting Attorney General to approach the Court for relief to his considerable embarrassment and through no fault of his own.
In his original judgement Tafa J declared that the appointment of judges by the Executive under section 4 of the Court of Appeal Act was unconstitutional as parliament has not set the number of judges for the Court of Appeal. He also declared that the extension of judge’s contracts beyond the initial 3-year period was in violation of the provisions of the constitution.
In order to avoid the judicial quagmire that has actually arisen, Mboki Chilisa, acting on behalf of the then applicants, the National Amalgamated Central, Local & Parastatal Manual Workers’ Union requested that the order in respect of parliament’s obligation, be suspended for 6 months to allow parliament to set out the number of judges as it was required to do in terms of the constitution. There has been considerable debate in the legal community as to the legality of such a suspension of the findings of the court but there is nevertheless agreement as to the imminent reasonableness of such a request. Tafa J clearly thought so too and stated that “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 sixth, seven (sic) and all other respondents who have not been reappointed after the expiry of three-year fixed term contracts are regularized.” It was with this order that the proverbial muck hit the fan.
Order 2 that was suspended related to the finding that the provision of the Court of Appeal Act that allowed the President to appoint judges in such numbers as he thought appropriate was unconstitutional. Orders 3 and 4 related to the unconstitutionality of the contract renewals by the President. These orders were not suspended.
Acting on the wording of Tafa’s order, the Court of Appeal ceased to sit. The Attorney General moved an application that sought first to suspend Tafa J’s entire judgment and second to seek clarity on what his order actually meant. Unusual, Tafa J, allowed the entire argument on the application for stay of his orders and on delivering judgement found at its end, having dealt with various reasons as to why such an order had no prospect of success, that a clerical error had been made in his initial judgement in that the numbering was incorrect.
On the corrected order, paragraph 2 would now include two new subparagraphs that were previously paragraphs 3 and 4 thereby suspending even the declaration that the contracts of judges were unconstitutional. The effective suspension of the entire findings would allow the Court of Appeal to sit and answer the Attorney General’s pertinent concerns. It is not known if the parties were not advised from the onset of the typographical error in respect of the numbering, to correct it without the need for further argument. Problem solved, or would it have been?
Tafa J found that the Court of Appeal Act violated the constitution because it gave power to the President to unilaterally declare the number of judges at the Court of Appeal. A power that he should not have under the Constitution. This finding is capable of being rectified by Parliament priscribing the number of judges and amending the Court of Appeal Act appropriately to reflect the number of judges Parliament has allowed. Tafa’s finding however on the renewal of contracts is incapable of being rectified other than by an amendment to the constitution itself. He had held that “I would therefore interpret the relevant portion of section 101 (1) of the Constitution as not permitting the President the discretion as to whether or not to re-appoint a Justice of Appeal.” He found, therefore, that the appointment of the judges on more than one fixed term contract was unconstitutional. Such a finding cannot therefore be rectified by a “relevant authority”.
The President, intent on using the Botswana Democratic Party’s majority in parliament has orchestrated a legally undesirably solution to ensure the continued tenure of judges that have been declared to be sitting unconstitutionally. Kgathi, the Minister of Justice Defense and Security has proposed legislation that has a two-fold impact, firstly to have parliament prescribe the number of judges, and secondly, in order to circumvent the difficulty of the constitutional invalidity of renewing judges contracts, to increase the age of retirement of judges to 80 years from the current 70 and apply the retirement age retrospectively. Once the legislation passes the need to give the affected judges’ contracts falls away as they would not have attained the age of 80.
The Executive and the BDP face a legal hurdle with its approach. The constitution prescribed the retirement age of judges to be 65 up until 2001. In 2001 government held a referendum which amongst other questions asked the Batswana to indicate whether they “…agree that the retiring age of the judges of the High Court and Court of Appeal should be increased from 65 to 70?” Of the 22 500 people that voted in the referendum only a slim margin of 11 700 voted in favor of the amendment. The proposed legislation by Kgathi however intends to completely ignore the referendum by what lawyers call “gazumping”, an act of ignoring a legal step that has already taken place by introducing an amendment to the Court of Appeal Act escalating the age of retirement to 80.
The legal ramifications of Tafa J’s judgments will continue to be felt for considerable period of time as the machinations to “save” the terminated judges positions continue.
As Tafa J stated in his judgement, the conferment of a judicial contract can be viewed as a “benefit” and without impugning on the Court of Appeal Judges, the perception that the public will have of such a benefit is to use Kirby JP’s words, that the judiciary would be “executive minded”.