WHAT might a “captured” South African judiciary and judicial appointment system look like?

While chilling stories from leaked emails suggest South Africa is no longer being run by its own president, that right having been bought by the wealthy Gupta family, many people find comfort believing that SA’s judges continue fearless and independent. But what if President Jacob Zuma ignored the Judicial Service Commission? What if he appointed whomever he liked as a judge or acting judge, despite what the constitution said?

What, in short, if he “captured” the judiciary and the JSC?

It would probably look rather like Botswana, at least according to that country’s critics.

Botswana’s president, Ian Khama, seems a strange mix of political and personal instincts. On the one hand he ordered visiting homophobic US “pastor” Steven Anderson arrested and thrown out, saying Botswana didn’t want his “hate speech”. Then there’s Khama’s outspoken criticism of Zimbabwe’s Robert Mugabe along with other public positions that might indicate support for human rights.

But strong and growing voices from inside the country claim the opposite, saying that human rights, free speech and the rule of law are not respected by Khama and his government despite a façade that often fools outsiders.

Khama has already announced he will step down next year. Whatever analysts ultimately conclude about his term of office, however, no-one would dispute that he has had a significant impact on the bench. He has been at the centre of several serious disputes on judicial issues and the courts have found him on the wrong side of the constitution over the judiciary.

One such case was brought by the country’s law society. The lawyers were fed up with how Khama had forced a change to the way judges were chosen. They said he acted as though he were free to appoint anyone he wished to the bench, and they challenged Khama’s right to refuse to appoint a candidate put forward by the JSC. Their case focused on a key provision of the constitution. It says the president must appoint judges “in accordance with” the JSC: did that phrase mean he was obliged to appoint someone whose name was sent him by the commission, or did it mean he could reject nominees, without explanation, and appoint someone else?

In the years before this, after the president previously rejected names from the JSC and made his own appointment, the commission adopted a new system – they sent him a list of several names from which to choose. The law society believed this was not constitutional and prepared to litigate when the opportunity arose.

In 2015 the JSC interviewed four candidates for a vacancy and decided to recommend attorney Omphemetse Motumise. Khama refused to appoint him. This time the law society was ready to act. The high court found against the law society, but in the appeal court, four of the five judges said Khama was wrong and that the disputed constitutional phrase required him to appoint someone whose name was put forward by the commission.

What has happened since then is almost as significant as the judgment itself. First, the president has simply ignored the court – Motumise has still not been appointed, even though the appeal court gave its decision in May. Now the question is whether the law society will have to go back to court for an order that Motumise be appointed. It also raises the question whether the commission’s task is complete once it has sent the president the name of a candidate recommended for appointment: does the commission have a further duty to ensure those it chooses are actually appointed?

The second development is that Khama has gone on the offensive. Apparently hoping to ensure that in future the JSC would choose people of whom he approves, he appointed his permanent secretary as a member of the commission.

A shocked article in the Botswana Gazette described this as compromising the independence of the judiciary, and noted that the permanent secretary was obliged to perform “any function the president might assign”. The permanent secretary was the administrative head of the office of the president, a top advisor to the president and the head of the civil service with an executive position as a secretary of cabinet. It was, in the view of legal experts, little different from Khama being a member of the JSC “and then making recommendations to himself as president”.

The JSC in Botswana has six members. Five are direct appointees of the president: the chief justice and the head of the appeal court, both of whom he is mandated to appoint without reference to the commission. Then there is the chair of the public service commission, another presidential appointment, with a fifth position – a non-lawyer – also directly appointed by the president. That post has now filled by the president’s permanent secretary. The only member not appointed by the president is the sixth commissioner, someone chosen by the local law society.

Two years ago, the Sunday Standard wrote that a growing number of people in Botswana had the same bad dream in which Khama was “turning the judiciary into his lap-dog”. Whether or not that is his intention, however, fate has been generous to him: his time in office has coincided with a number of judicial vacancies. The Standard noted that during his presidency he has appointed all the permanent members of the appeal court, and as at 2015, he had appointed 11 of the 22 high court judges. Since that report he has appointed even more judges.

But the biggest challenge yet might lie ahead: who will he leave in office as chief justice? Under Botswana’s hierarchical judicial system this post should be settled in terms of seniority. With the chief justice due to retire even before Khama stands down, the question of a replacement must be resolved before the president goes. It won’t be easy. The next most senior judges are either due to retire before Khama steps down, or else have indicated unwillingness to stand. And after that cohort comes a judge who has already had a run-in with Khama, Judge Key Dingake, someone with a strong human rights record. The question now being asked is whether Khama will give him the nod, or if the final period before the president quits office will be marked by yet another major tussle over judicial appointments.

Also published in Legalbriefs, 13 June 2017

Law Society of Botswana v President (High Court)

Law Society of Botswana v President (Appeal Court) 1

Law Society of Botswana v President (Appeal Court) 2

Law Society of Botswana v President (Appeal Court) 3

Law Society of Botswana v President (Appeal Court) 4