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Home » News » General » Composition of JSC is a mockery – UB head of Law department

Composition of JSC is a mockery – UB head of Law department

Publishing Date : 13 November, 2017

Author : UTLWANANG GASENNELWE

A University of Botswana Senior lecturer who is also Head of Department of Law, Dr. Bonolo Ramadi Dinokopila has dismissed the Judicial Service Commission (JSC) asserting that its composition is just a “mockery.”


The composition of the JSC, he pointed out that “it is in itself a mockery to the principles of constitutional democracy.” In his upcoming academic paper, titled: “the role of judiciary in enhancing constitutional democracy in Botswana,” seen by Weekend Post, he contended that, in the main, the appointment process in Botswana is largely entrusted to persons who are appointed, in the first place, by the President acting alone. A possible argument may be that the President (Lt. Gen. Seretse Khama Ian Khama) appoints only one member of the JSC while the rest of the members hold their positions in the JSC ex officio, he highlighted.


“Such an argument loses sight of the members’ appointment to their positions, all of whom are appointed by the President acting alone. The possibility of lack of independence from the executive cannot be ruled out and makes it difficult for one to argue against the perception that the judiciary is not politically independent.” The UB head of law department explained that it severely falls short of international standards relating to the independence, impartiality and integrity of the judiciary.


He added that “this is in the sense that its composition does not qualify as a method of selection of judges that is able to effectively safeguard against judicial appointments for improper motives.” As rightly pointed out previously by the Law Society of Botswana (LSB), he said the JSC is largely dominated by Executive appointees as five out of its six members are appointed by a President.


“The secrecy surrounding the appointment of judges, which is based on an argument that the JSC may regulate its own procedure as per section 103 of the Constitution, adds to the shortcomings of the appointment process. In a constitutional democracy, such secrecy is totally unnecessary and is counterproductive,” Dr. Dinokopila said in the academic paper.


The UB Senior lecturer emphasized that the appointment of judges is a relevant factor to the performance and contribution of the judiciary to constitutional democracy, and therefore a flawed appointment process of judicial officers creates a site for possible political interference. Dr. Dinokopila also observed in the paper to be officially published sooner or later that the Constitution in Botswana has created two centres of power within the Judiciary.


He justified that this is so because the Constitution provides for the appointment of the Chief Justice and the Judge President of the Court of Appeal as two separate offices occupied by two different persons. “The Chief Justice (Maruping Dibotelo) is supposed to be the head of the Judiciary. However, he/she is not a permanent member of the highest Court of the land as is the case in most jurisdictions. The Judge President (Ian Kirby) is the head of the highest Court of the land, meaning that he is the one who provides judicial leadership in his position as the President of the Court of Appeal. He can set aside decisions made by the Chief Justice and is able to influence the direction of the jurisprudence of the country with respect to important matters,” the UB Law expert said.


As such Dr. Dinokopila hinted in his research paper that there is need for reforms in the judiciary saying such reforms will definitely enhance the role of the courts in furthering constitutional democracy in the coming fifty years (from now). The first of such reforms, he said should be geared towards ensuring and safeguarding the independence of the judiciary. In particular, he said (in such reforms) the appointment of judges should be reviewed so as to ensure that the process is insulated from external influences and will lead to a more transparent appointment of judicial officers.


“That is, the composition of the JSC must be reviewed so as to ensure its compliance with international standards relating to the composition of such institutions.”  Dr. Dinokopila also expressed discontentment that it appears that the Industrial Court is considered as a Court of law and equity – and a superior court at that - but does not, de facto, form part of the judiciary. He continued: “Judges of the Industrial Court are appointed by the President without the involvement of the JSC. The de facto exclusion of the Industrial Court from the judiciary is indeed puzzling.”


Notwithstanding the decision of the Court of Appeal in (a case known as) the Setsogo case, the manner of appointment of judges of this Court should be considered as unconstitutional, and the Trade Disputes Act must therefore be amended to make provision for the involvement of the JSC in the appointment of judges of the Industrial Court, he said.


According to the law Senior Lecturer, it should be admitted that the judiciary is operating within the boundaries of a very limiting constitutional framework. He said Botswana’s 1966 Constitution has had a negative impact on the extent to which the courts can protect the rights of the citizenry for example.


“There are times when the judiciary has been viewed with suspicion by members of the community, especially members of the opposition parties, the legal fraternity and the labour movement. There have been instances where the judiciary has been accused of failing to fulfill its mandate under the constitution on allegations that there is too much deference to the executive.” To that end, he said the Constitution confirms that the judiciary is or should be considered as an organ of the state in Botswana.


However he submitted that it must be pointed out that the judiciary is now being identified as the Administration of Justice of Justice (AOJ), a department in the Ministry of Defence, Justice and Security. “This means that the judiciary does not have a separate budget as an arm of government and has its finances controlled by the Minister as opposed to the Chief Justice.”


The UB academic also said in his paper that the independence of the judiciary might be enhanced by ensuring its financial autonomy which can be achieved by ensuring that the judiciary draws its funding from the country’s consolidated fund. “Once the judiciary is able to control its budget, it should be able to allocate its resources in a manner that is consistent with their vision and needs,” he said.

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