The appointment of the Chief Justice and the Judge President of the Court of Appeal by the President of the Republic of Botswana: presidentialism or constitutionalism?

Abstract

The major aim of this research was to examine the process of appointing the Chief Justice and the Judge President of the Court of Appeal in Botswana. This was accomplished by considering whether there is political manipulation in the appointment of the Chief Justice and the Judge President of the Court of Appeal. In addition, the research sought to establish what the law says about the appointment of the Head of the Judiciary and the President of the Court of Appeal. It also sought to establish if there is liberty in exercising the judicial functions by the head of the Judiciary and the head of the Highest Court of the Land. The research also sought to determine if there is separation of powers amongst the three arms of government and to determine if there is independence of the Judiciary in Botswana. A qualitative research approach was employed supported by an exploratory research design. Data was collected through document analysis i.e. secondary data were used to conduct the research. Thematic qualitative analysis was employed to analyse the gathered information. The research concluded that the appointment of the Chief Justice and the Judge President of the court of appeal by the President of the Republic Botswana is constitutional. There is no political manipulation in the appointment of the Chief Justice and the Judge President of the Court of Appeal as this is guided by the constitution. There are laws that give the President Powers to appoint the Head of the Judiciary and the President of the Court of Appeal. There is liberty in exercising the judicial functions by the head of the Judiciary and the head of the Court of Appeal in Botswana. This research also established that there is separation of powers amongst the three arms of the government and there is independence of the Judiciary in Botswana. However, the President can appoint the Chief Justice and the Judge President of the Court of Appeal without any consultations and in this case this research recommends that the Constitution can be amended to give provision to the President for consultation prior to the appointments of the Chief Justice and the Judge President of the Court of Appeal. Also it was recommended that an independent body and not the President can do the appointments or the government can benchmark with other countries which are doing the appointments differently.