Dissenting judges stick to their guns

18 Jun 2017

The Member of Parliament for Selebi-Phikwe West Dithapelo Keorapetse demanded an explanation last week on the petition signed by 12 judges of the High Court against Chief Justice Dibotelo. Appearing before the Public Accounts Committee (PAC) the Registrar of the High Court Michael Motlhabi was singularly uncomfortable answering Keorapetse, who demanded that the AOJ clarify for the public benefit, the status of the petition against the Chief Justice.

The Judicial Service Commission’s (JSC) failure to deal with the 2015 Petition against Chief Justice Dibotelo continues to undermine the integrity of the Judiciary and raises questions as to its (lack of) independence.

Last week, the JSC, through their Secretary wrote to Justices Moroka, Ketlogetswe, Motswagole and Nthomiwa demanding that the four advise the body of their position in respect of the Petition against the chief justice. The letter, according to sources demanded that the four judges, who have not withdrawn their signatures, advise the JSC in light of the recent “settlement” reached between the President and the formerly suspended Justices, Dingake, Letsididi, Garekwe and Busang.

The four remaining signatories to the Petition have unequivocally refused to withdraw their signatures and backtrack on the criticism levelled against Dibotelo. In their response to the JSC’s demand the quartet questions why the JSC has failed to take action on the Petition in almost two years. The quartet further raises issue in respect of the legal basis for the JSC’s demand when the body has failed to fulfil its obligatory function of investigating the conduct of Judges.

The JSC, which is created by under the Constitution, has among its various functions an obligation to look into the conduct of Judges, in the same way the Law Society of Botswana looks into complaints against lawyers. As the body entrusted with oversight of judge’s conduct they JSC is unable to ignore a complaint against a judge unless it has been withdrawn. With criticism mounting as to its failure to act in respect of the petition against Dibotelo, the JSC is seeking to resolve the complaints against Dibotelo without the needs to conduct an inquiry by indirectly, through an implied suggestion, seeking the remaining 4 petitioners to withdraw their signatures.

According to the petition, the original 12 judges who signed it were willing to present additional oral evidence to support their complaints against the Chief Justice. The Judges revealed in the petition that the information they would rely on was too sensitive to be put on written form stating that “the above constitute but only the tip of the iceberg. Not stated here because of their extreme sensitivity, which we will present at the meeting between the Commission and the Judges.” The petitioning judges indicated that the information they possessed would be revealed at the hearing against the Chief Justice, an internal process not open to the public. The petition attacked the Chief Justice on various grounds, from tribalism, poor administration to his belief in traditional witchcraft, all of which led to concerns into the ability of the Chief Justice, the JSC and the administration of justice being able to fulfil their constitutional functions as having oversight of the Legislature and the Executive.

The JSC, has to date failed to take any action in respect of the Petition leaving it moribund whilst the dispute between Dingake, together with the other 3 suspended judges and the Khama played out in the Courts.  Sources within the administration of justice have revealed that it was hoped that the settlement reached between the suspended Judges and Khama would put an end to the petition against Dibotelo. However, continued media reports, by this publication and other media houses that the petition had not been dealt with and had not been withdrawn due to the remaining signatories persisting with it, has forced the JSC’s hand and compelled it to act.

Speaking to the Telegraph’s sister publication, The Sunday Standard, last week, Justice Zein Kebonang, revealed that the Petition remained a cause of concern within the Administration of Justice and that Khama had miscalculated in his attempt to resolve the dispute with the 4 suspended judges, assuming, incorrectly that if the suspension was lifted and the 4 apologised to the Chief Justice, then the petition would be extinguished. Kebonang revealed that the JSC, which was not part of the “settlement” negotiations between the Khama and the 4 Judges, was now left to unravel the predicament left behind as a result of the “settlement”. Kebonang who is not part of the JSC revealed that the 4 remaining judges to the petition had withdrawn their signatures and that the complaints against the Chief Justice were now resolved. The information has proven to be incorrect, revealing larger fissures within the administration of justice and the JSC in particular.

Speaking to the Telegraph, following the Sunday Standard’s article “Last four ‘dissenting’ judges throw in the towel”, Justice Moroka has confirmed that they have not thrown in the “towel” and stand by the issues raised in the 2015 petition against the Chief Justice. Moroka declined to comment further on the matter indicating that, other than refuting the assertion that he and the remaining petitioners had withdrawn their complaints against the Chief Justice, the matter was in the hands of the JSC who were “obliged by law” to conclude the matter “one way or the other”. 

The petition which gave rise to the suspension of Dingake, Letsididi, Garekwe and Busang following their being side-lined as the alleged “ring leaders” by Khama gave rise to litigation which saw Botswana’s international ratings by various rating agencies plummet in respect of Botswana’s “rule of law” indices.

The drop in Botswana’s rule of law ratings comes amid interference into the appointment of Judges and the administration of justice by the Executive. The Executive intrusion, whether to promote the appointment of judges or to protect such judges who are under investigation by the JSC due to a complaint against them undermines the moral legitimacy of the Court. An effective judiciary can only function if it has a moral trust of the public.  The ideal of a separation of powers requires that the Judiciary is on a level playing field with the Executive and the legislature. Effectively however, the Judiciary neither has the political, financial nor enforcement framework that is available to the other arms of Government.  The Judiciary is the weakest of the three arms. It is reliant for example on the Executive through the Police, to enforce it Orders. In spite of this weakness its independence and authority are essential. The Judiciary with no constituency, no finance and no police by means of which it can enforce its independence and authority must rely on its sole source of legitimacy, that of its moral authority.  In the absence of such moral integrity and authority, it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of State and, ultimately, as the watchdog over the Constitution the rights it contains.

Khama assumed that the withdrawal of the petition by Dingake, Letsididi, Garekwe and Busang, who would be the end of the concerns raised by the 12 judges against the Chief Justice. The concerns raised in the Petition, which became known to the public through the media and the ensuing litigation were never resolved. The complaints against the Chief Justice, which impact directly on the moral integrity of the Court and the Administration of Justice, create a legal duty on the JSC to determine the validity or otherwise of the complaints against the Chief Justice.

The President having entered into “settlement” agreement with the formerly suspended judges could not instruct the JSC to abandon the Petition. To have done so would have amounted to a violation of the separation of powers. The JSC has however sought to use the agreement between the 4 formerly suspended Judges together with those that had previously withdrawn from the petition to stop the investigations into the Chef Justices conduct. The allegations raised against the Chief Justice are of such a nature that whether or not all the complaints are withdrawn they ought to be investigated. Public interest in the integrity of the Court, demands it.

The JCS had refused to deal with the complaint against the Chief Justice, levelling a serious of fictitious complaints against those complaining. Stating that since concerns over the “Housing Allowance” overpayments had been referred to the Botswana Police Service (BPS) the JSC would not meet the petitioning judges to hear their complaints. The over payment of the Housing Allowance has now however been debunked of any validity with the endorsement of Khama settlement having been accepted by the Court hearing the legal challenges over the Judges suspension.

The fabricated allegation over the Housing Allowance successfully obscured and placed on the back burner the greater issues concerning the complaints against the Chief Justice. It is noteworthy that the Housing allowance over payment never formed part of the President’s grounds instituting disciplinary action against the judges. The singling out of Dingake, Letsididi, Garekwe and Busang as against the 12 judges who had signed the petition against the Chief Justice sought to protect the Chief Justice and the JSC.

The recent Court of Appeal decision, which ruled against Khama, over his refusal to appoint Motumise as a Judge, left the door open for Khama to influence judicial appointments in what the Court termed “exceptional circumstances.” The Court of Appeal said, in its judgement that Khama was allowed to give information, which the Office of the President may have on an individual, to the JSC in respect of any judicial candidate. In an endeavour to wrestle control of the JSC, not only in  respect of the appointment of Judges but also in an endeavour to protect his interests saw Khama, in response to the Court of Appeal judgement, appoint Carter Morupisi his Permanent Secretary (to the President) (PSP) to the JSC. 

Carter Morupisi has been appointed under the provisions of the Constitution that provides that “a person of integrity and experience not being a legal practitioner” may be appointed by the President, while the Constitution is silent on the independence of such a person, their independence is an essential requirement, intended to safeguard against Executive intrusion into the Judiciary. The Court of Appeal, in the Motumise case and Justice Tafa at the High Court in the appointment of Judges Case both found that the independence of the Judiciary is an essential guarantee for a functioning democracy.