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The President is obliged to follow the JSC’s advice

Publishing Date : 20 April, 2015

Ndulamo Anthony Morima

The Constitution at sections 96(2) and 100(2) respectively provides that Judges of the High Court and the Court of Appeal shall be appointed by the President “acting in accordance with the advice of the Judicial Service Commission (JSC)”. While some, including the government, believe that this enjoins the JSC simply to make a recommendation that the President is not bound by, some, including the Law Society of Botswana (LSB), believe that the President is bound by such advice and has no discretion. It is this divergence of view that this article seeks to consider.

In such consideration, refuge will be sought under the rules of interpretation in our law. It is clear that the words ‘…acting in accordance with the advice…’ need to be interpreted judiciously in order for clarity to be achieved in this regard. First, we interpret the word ‘advise’. The rules of interpretation enjoin us to first seek the ordinary or literal meaning before resorting to the contextual or purposive meaning of the word. Second, we interpret the phrase ‘…acting in accordance with…’

According to the Oxford English dictionary, the meaning of the word advise includes giving counsel, giving guidance, making recommendations, offering suggestions, offering opinions, giving pointers, giving directions and giving instructions. While counsel, guidance, recommendations, suggestions, opinions and pointers are non- obligatory and endow on their recipient the discretion to follow them or not, directions and instructions are obligatory and leave the recipient with no discretion.

But, in terms of the word’s utility and ordinary meaning what does the ordinary person understand the word ‘advice’ to mean? For example, does an ordinary person think that a person who has a political or legal advisor is obliged without any discretion to follow the advisor’s advice? The ordinary person probably understands the word ‘advice’ to mean that a person in an inferior position makes recommendations to the superior who has the discretion to accept or decline such recommendations.

From the mixture of mandatory and non-mandatory words in the Oxford English dictionary’s definition of the word ‘advice’ it is clear that the literal meaning cannot conclusively be relied upon. We, therefore, resort to the contextual or purposive meaning. Here, we adopt the meaning which gives effect to the purpose for which the word was used in a particular context.

The context is that the President is enjoined to appoint judges of the High Court and the Court of Appeal ‘acting in accordance with the advice of the JSC’. The other context is that this JSC which renders this advice is, in terms of section 103 (1) of the Constitution, composed of the Chief Justice (CJ) as chairperson; the President of the Court of Appeal, the Attorney-General (AG); the Chairman of the Public Service Commission (PSC); a member of the Law Society nominated by the Law Society; and a person of integrity and experience not being a legal practitioner appointed by the President. Except for the former all members of the JSC are appointees of the President.

The other context is that in Botswana, the President, acting alone and without being enjoined to seek advice from anybody, appoints all other high ranking officials. The other context is that in terms of section 47(2) of the Constitution, “in the exercise of any function conferred upon him by the Constitution or any other law the President shall, unless it is otherwise provided, act in his own deliberate judgment and shall not be obliged to follow the advice tendered by any person or authority”. The other, and perhaps overriding, context is that sections 96(2) and 100(2) of the Constitution were inserted into the Constitution in order to ensure separation of powers, a cardinal pillar of our constitutional democracy. We now consider these contexts in turn.

 Assuming the word ‘advice’ in this context was intended to be mandatory, can the constitutional drafters have intended the President to be compelled to rubber stamp the recommendations of his appointees or subjects? Put differently, can the President’s appointees direct or instruct him to appoint someone? Ordinarily they cannot. But, this is no ordinary matter. It is a matter which touches on separation of powers.

But given that our President has the power to appoint other high ranking officials without seeking advice from anyone, why did our constitutional drafters include it in relation to the appointment of judges? Did they really want the JSC’s advice to be binding on the President or they merely wanted the President’s decision to be influenced by, among others, the JSC’s recommendations? Or true to the Constitution they gave effect to the very exception provided for by section 47(2) of the Constitution?

Ours is a constitutional democracy based on, among other pillars, separation of powers. Drafters of our constitution knew that our President is a partisan politician. Can they have really intended that the composition of the judiciary be determined by a partisan President who will in all likelihood appoint judges whose ideologies he shares? They probably did not intend that. But can they have intended that the President, in whom executive power vests in terms of section 47(1) of the Constitution, rubber stamps decisions of his servants? They probably did not intend that.

What then did they intend? Perhaps the answer lies in the words ‘acting in accordance with’. According to the Oxford English dictionary, the definitions of the word ‘accordance’ include in agreement with; in conformity with; in line with; in compliance with; true to; in fulfillment of; in obedience to; in the spirit of; following; honoring; heeding and observing. According to the plain meaning of these definitions, the President has no discretion, but to obey, or at least take heed, of the advice of the JSC.

Therefore, while the word ‘advise’ alone is non-obligatory, read together with the words ‘acting in accordance with’ it has a mandatory import, especially when interpreted within the context of such an overriding principle as separation of powers. If the President’s discretion alone was sufficient, the JSC’s advice would not have been required in terms of the Constitution.

That if compelled to follow the JSC’s advice the President would in essence be rubber stamping his servants’ decision is neither here nor there. Rubber stamping a decision of a constitutional institution, albeit subordinate, is not amiss if the institution’s loyalty to the Constitution is unshakable. Policy makers, themselves not experts in technical matters, rubber stamp hundreds of decisions every day. The President, for instance, rubberstamps many decisions by the Governor of the Bank of Botswana, some of which have more implications than a judge’s decisions.

The JSC, which comprises a practicing Attorney nominated by the society for Attorneys, the AG as the custodian of Attorneys’ practice, the CJ and the President of the Court of Appeal who are themselves judges, the Chairman of the PSC as the custodian of the public service and a person of integrity and experience not being a legal practitioner representing the public, knows better who is best suited to be a judge.

Members of the JSC, though mostly appointed by the President, are men and women whose professions are based on integrity and though they, like all human beings, have personal prejudices, such prejudices are moderated by the respect for their offices and the prejudices of the other members. On the contrary, the President’s prejudices, which are expectedly political, are unmoderated. His unfettered appointment of judges will, therefore, invariably compromise separation of powers and by extension the rule of law. Why else would the President not follow the advice of his own appointees if not for irrelevant considerations?



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