The crisis in the judiciary could get even more complicated next year when Chief Justice Maruping Dibotelo reaches the mandatory retirement age.
In terms of the constitution, High Court judges are supposed to retire at the age of 70 and Dibotelo, who reaches that threshold on October 13, 1947. Historically, ascension to the position of Chief Justice has been on the basis of seniority. At the time of his appointment, Dibotelo was the most senior judge followed by Mpaphi Phumaphi, Singh Walia and Dr. Key Dingake in that order. With Phumaphi having retired last year and Walia retiring at the end of this year (both on account of having reached retirement age), Dingake is the next man up for the big post. However, there is no guarantee that will happen. In a matter before the Gaborone High Court, Dingake is one-quarter of a marathon legal battle that has pitted him against President Ian Khama. It remains to be seen whether Khama, whose term ends on March 31, 2018 will dispense with judicial practice that has been observed by his three predecessors, one being his own father ÔÇô Sir Seretse Khama.
Alongside three other judges (Modiri Letsididi, Mercy Garekwe and Rainer Busang), Dingake was found to have received monetary benefit (housing allowance) that he was not entitled to. All four were staying in government houses and were thus not supposed to have earned the allowance which one gets only when they are not provided with accommodation by the Ministry of Lands and Housing. The accounts department of the Administration of Justice (AoJ) is itself to blame at one level because it didn’t follow official procedure and even when alerted, continued paying the allowance.
As a result of the said lapse, Dingake was overpaid housing allowance from March 2006 to August 2015 to the tune of P251 000. However, a special audit report from AoJ shows that in February 2007, Dingake wrote a memo to the Department of Personnel authorising deduction of P600 a month from his salary to pay back the housing allowance that he had been erroneously paid. According to the audit report, “there is no record that confirms recovery of the overpayment as proposed by Hon. Dingake.”
As the date of Dibotelo’s retirement draws nearer, Dingake remains suspended and it is difficult to think of a situation in which he becomes Chief Justice while still on suspension. One theory that has been propounded and has gathered traction in some quarters is that the whole housing allowance fracas is a ploy to frustrate his chances of being elevated. Sources at the Ministry of Justice, Defence and Security say that the executive has grave misgivings about Dingake because his judgements have never favoured it.
“There is also strong suspicion that he is affiliated to the Botswana Congress Party,” says a source, referring to an opposition party whose founding president was Dingake’s elder brother – Michael Dingake, who served alongside Nelson Mandela on Robben Island.
Despite what the powers-that-be have convinced themselves about Justice Dingake, one incontrovertible fact is that he is very well-respected by his peers both here at home and abroad for his incisive legal mind. A source says that it had become standard practice for international organisations inviting the Botswana judiciary to meetings to specifically ask for Dingake. In the final analysis, while seniority and ability may favour Dingake, the appointing authority may have other considerations.
