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By Adam Phetlhe
The Sunday Standard newspaper dated October 28-3 November 2018 carried a front page report headlined ‘Justice Kebonang faces possible money laundering charges’ in which it stated that ‘DPP considers adding High Court judge to list of NPF money laundering accused persons, DPP to argue that Justice Kebonang remained part of Basis Points even after announcing his resignation’. Assuming this report by the newspaper is correct, the ‘possible money laundering charges’ against Justice Kebonang are not only very serious and damaging on his own persona, but are also very serious and damaging on the position he holds together with the institution that is the judiciary. It is against this background that I suggest that the President should suspend him from judgeship where in the interim, facts and nothing else which corroborate or dismiss these allegations are brought to the fore in order to save him and the judiciary from the negative public eye. I am relying on the newspaper report (again on the premise it is correct), Section 97 of the High Court Act and other views from elsewhere by competent persons or institutions to make my case for the suspension of Justice Kebonang.
The starting point is to mention the purpose of taking action against judges like Cynthia Gray, the Director for Judicial Ethics at the American Judicature Society does in her paper titled ‘A Study of State Judicial Discipline Sanctions’ and released in the early 2000s that ‘Supreme courts have repeatedly stated that the purpose of discipline in judicial conduct cases is not to punish a judge. Instead the general purpose of judicial discipline proceedings is preserving the integrity of judicial system and public confidence in the system and, when necessary, safeguarding the bench and the public from those who are unfit’. This conversation is therefore premised on the principle that the judiciary is sacrosanct and must be jealously guarded, preserved and protected against any undesirable and damaging elements that could tarnish its image here and elsewhere. In this regard, no offence is intended towards Justice Kebonang. I respectfully ask him to bear with me because I think he shares my thoughts in preserving the integrity of an institution he probably calls his second home and that which has elevated him to his current position notwithstanding that he is the subject matter. It may very well be that when all is said and done, he is as innocent as a newly born baby. As a person fully versed in the administration of justice, he would be the first to acknowledge that suspending a judge is part of the administration of justice.
The American encyclopedia of law says ‘(A) judge’s conduct must be free from impropriety and the appearance of impropriety and that both his official and personal behaviour be in accordance with the highest standard society can expect. The standard of conduct is higher than expected of people and also higher than that expected of attorneys. The ultimate standard must be conduct which constantly reaffirms fitness for high responsibilities of judicial office, and judges must so comport themselves as to dignify the administration of justice and deserve the confidence and respect of the public.’ Jayant Singh of the National Law School of India University, writing in the ‘Meaning and Scope of Misbehaviour in Removal of Judges: A Critique’ says ‘The higher the office, the lower the threshold of proof needed to remove the judge….corruption of any kind, lack of integrity or any offence involving moral turpitude would be misbehaviour…..Any behaviour that tends to undermine the standing of the courts or a particular judge’s credibility may have a seriously damaging effect on the public confidence in the judiciary….’
Section 97 (2) of this Act provides that ‘A judge of the High Court may be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or from misbehaviour….’ Section 97 (3) provides further that ‘If the President considers that the question of removing a judge of the High Court under this Section ought to be investigated then-he or she shall appoint a tribunal….’ Section 97 (3) (b) provides further that ‘The tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office for inability as aforesaid or for misbehaviour, the President shall remove such judge from office.’ It is safe to conclude for now and for purposes of this conversation that the suspension of Justice Kebonang would be based on the misbehaviour ground because nothing suggests from the newspaper report that the inability ground ‘arising from infirmity of body or mind….’ could be applicable, remotely or otherwise. But to be fair to Justice Kebonang, would it be fair for the President to suspend him owing to the allegations that have flown thick and fast that the President himself is implicated in the very same National Petroleum Fund scandal; that he has not suspended the Permanent Secretary to the President who is alleged to be embroiled in some form misconduct where the DCEC has approached him in that regard? But they say two wrongs don’t make a right. One is reminded of the decision of a South African court that held that because former President Zuma was implicated in the State of Capture Report, he could not therefore be an appropriate person to appoint a judge to head a Commission that sought to investigate the State of Capture Report. I am just saying.
Are there misbehaviour ground(s) to suspend Justice Kebonang based on the Sunday Standard newspaper report? The American encyclopedia law and Jayant Singh ‘authorities’ referred to above give a sense of what misbehaviour is. I would say it simply means improper or unlawful conduct by judicial officers in this case judges of the High Court in their private and official capacities which in the end, could result in misconduct of some sort. I should state that the term misbehaviour as used in Section 97 does not explicitly state what constitutes it; whether it would be minor, major or very serious to attract whatever sanction. Whatever the case, misbehaviour in the subject matter would be just that. As it stands, the fate of judges probed for inability or misbehaviour as contemplated in Section 97 by a tribunal established by the President is in effect in the hands of such tribunal and the President. In other countries’ Constitutions, the processes of removing judges go as far as being parliamentary proceedings.
If it is indeed true that Justice Kebonang ‘remained part of Basis Points even after announcing his resignation….Justice Kebonang was a Director at Basis Points at the time the company was irregularly appointed fund managers of the National Petroleum Fund….’, would point to one thing and that is dishonesty on his part to his employer. Honesty, generally speaking and in any relationship, is key to such relationship and it should follow that it is not negotiable for judges as it probably would with others. It follows therefore that should it be established beyond any reasonable doubt or on a balance of probability that Justice Kebonang was dishonest about terminating his relationship with Basis Points at the time of his appointment as a judge of the High Court, the appropriate sanction thereto would be for the President to remove him from judgeship. And this will be against the high premium placed on judges as described by the American encyclopedia law and Jayant Singh articles referred to above respectively. It will even be more damaging for him should it emerge from the tribunal findings or any criminal proceedings that he indeed personally benefitted in whatever respect from the Basis Point relationship with the NPF scandal. Cynthia Gray argues on the point of judges’ dishonesty that ‘honesty is one of the minimum qualifications which are expected of every judge’.
Accepting and appreciating that allegations against Justice Kebonang remain such until they have been proved or disproved, it would be in his interests for him to ask his employer for leave of absence for them (allegations) to be investigated and a fair finding made. But because he has not done so as far I can recall, I suggest that the President invokes the powers vested in him in line with Section 97 (3). Imagine how I would feel if I had to appear before Justice Kebonang on charges of money laundering fully aware that he himself faces the same allegations of money laundering. It is expected that the tribunal that would investigate the allegations against Justice Kebonang would be fair and transparent to him in all manner possible such that at the end of it all, the findings will be credible to render the next course of action even more credible and legitimate as well. Judge for Yourself!