President Ian Khama was under no obligation to appoint experienced lawyer Omphemetse Motumise as high court judge even though Motumise was recommended for the position by the Judicial Service Commission (JSC).
State Attorney, Senior Counsel Anwar Albertus argued before the Gaborone High Court this week in a case in which the Law Society of Botswana (LSB) and Motumise are challenging President Khama’s decision not to appoint Motumise as judge following the recommendation by the JSC.
Following the resignation of then Gaborone High Court judge, David Newman, the JSC recommended Motumise for appointment but Khama rejected the recommendation. The president then through recommendation by JSC appointed Dr Zein Kebonang as Acting Judge. A panel of three judges; Abednigo Tafa, Singh Walia and Tebogo Tau presided over the case.
Albertus told court that in accordance with the constitution, Khama has the power to reject the recommendation of the JSC. He said Motumise had no legitimate expectation to be appointed judge. “There is no legitimate expectation because no one has a right to expect to be appointed a judge. Motumise has no right, so the question of legitmate expectation does not arise. What right is he talking about? Unless the purported right is demonstrated then we cannot say he had a right to expect appointment. The president used the prerogative power to reject the recommendation for appointment,” argued Albertus.
Albertus stressed that there was no undertaking to make Motumise a judge and it was not communicated to him, so he cannot have expectation even if he was recommended. “He can have an expectation but not a legitimate one even when he was on the list of the candidates to be appointed. The president’s power to appoint judges is a prerogative power and is not reviewable. Therefore the decision cannot be said to be irrational”, he told the court. Albertus also quashed argument by the applicants that the JSC must interview candidates for post of judge in public.
Appearing on behalf of LSB and Motumise, Senior Counsel Wim Trengove argued that the decision to reject the recommendation and not appoint Motumise is subject to review. He said anyone who applies for a post has a right to lawful determination of their application. He said that they do not have a problem with the deliberations being made secret but they want the interviews to be done in public. He told court that the JSC is a public body endowed with public functions which it must exercise in the public interest.
Trengove stated that the constitution is clear that the president shall appoint a judge, acting in accordance with the advice of the JSC. “The applicant had a legitimate expectation of being appointed a judge. The judge’s refusal to appoint was unconstitutional and irrational. It should be reviewed and set aside. It was arbitrary and thus irrational and invalid. The president does not provide reasons for his refusal but he says he has valid reason for not appointing Motumise”, he said. Judgement in the case has been reserved.