The High Court, per Justice Tafa has declared as unconstitutional Section 4 of the Court of Appeal Act which gives the President the power to appoint such number of Justices of Appeal as he may determine.
The constitution of Botswana gives the power to prescribe a member of Justices of Appeal to parliament. Whereas it is permissible for parliament to delegate its legislative power in this respect, the court found that is too high a policy matter to be left to the executive. Thus, if parliament- by enacting Section 4 of the Court of Appeal Act, it sought to meet the constitutional requirements- it had awfully failed in that regard. It is therefore illegitimate for parliament to abdicate its central law making power to deal with controversial political issues or matters of high policy which require full parliamentary debate.
Precisely how did we land in this catastrophic constitutional crisis? The answer to this question is not difficult to discern. It is as a result of a leadership that does not take advice and will castigate anyone who offers a contrary view. It is a result of failure by leadership to listen and act on the advice tendered.
When the late Justice Legwaila left the Industrial Court these matters were raised and they followed him up to the Court of Appeal (CoA). These view points by the union were seen in the broader scheme of politicking. It seems that by leaving the Industrial Court, Justice Legwaila may well have been aware of the pitfalls that lay ahead. Somewhere somehow someone must have assured him and given him the full protection. I have always held the view that the secret appointment process of the CoA judges has turned it into an old boys club.
Before the institution of the proceedings before Tafa J, Attorney General (AG) was issued with a statutory notice of intention to sue. It should have occurred to the AG that crisis was looming and therefore appeal to the executive to regularize. The point that Section 4 of the Court of Appeal Act was delegated legislation- could not be sustained after the CoA judgement on that point recently in the case of Minister of Labour and Home Affairs. The AG appeared in that matter.
It should have been apparent to the AG that Parliament could not have delegated its central law making role under the constitution to the executive on a matter in relation to the composition of the CoA and that that would have amounted to compromising the independence of the judiciary, a cornerstone to any constitutional democracy.
The president violated the constitution by appointing justices of CoA without any prescribed number of them. Parliament equally abdicated its constitutional law making role. The Judicial Service Commission made recommendations for appointment without advising themselves if that was permissible. The AG too failed to advise appropriately when he had an opportunity to.