Thursday, January 20, 2022

Botswana’s judiciary loses its halo effect

High Court Judge Barnabas Nyamadzabo cuts a comical figure as he describes a moment of temporary insanity, when his emotions overrode prudence. There are many things you would expect from a High Court judge, but a confession that he is prone to mob psychology “which often results in poor quality decision making”, is not one of them.



In a letter to the Judicial Service Commission (JSC), Justice Nyamadzabo dissociated himself from a petition against Chief Justice Maruping Dibotelo. In an excruciatingly cringing instant, Justice Nyamadzabo states: “I was caught up in group think which often results in poor quality decision making.”



It is Justice Kholisani Solo’s confession, however, which is more sobering. Down on his knees and grovelling at the feet of President Khama and the Chief Justice, an obsequious Justice Solo declared his undying loyalty. In a week that saw Botswana’s judicial crisis lurching through a comedy of errors, Justice Solo states how indebted he is to President Khama and the Chief Justice for standing by him in his hour of need. In his words, Justice Solo states: “I express my loyalty to the Chief justice and the appointing authority who stood for my appointment when I was in my moment of despair.”



For most Batswana who have been sold on to the judiciary’s halo effect, Justice Nyamadzabo and Justice Solo’s confessions have the same sobering effect as that of a child suddenly discovering that Father Christmas does not exist. Their confessions are what an evolutionary biologist might call an indicator species. One small part of the ecosystem, such an organism can indicate the larger health or illness of the whole.



This is supported by the petition signed by 12 judges suggesting a judiciary in crisis under Chief Justice Dibotelo. The petition gives an excoriating account of Chief justice Dibotelo’s performance including his alleged racist and tribalistic tendencies. “He persistently raised objections about the Court of Appeal being led by a white man in Hon. Justice Kirby; at the height of the judge’s trouble with the law, he made disparaging remarks about the judge’s ethnicity as a predisposition for his troubles.” The 12 judges who signed the petition promised to provide details to the Judicial Service Commission.


The petition gives the first public account from inside the judiciary about Justice Dibotelo’s leadership since his highly controversial remarks about judges’ palms being greased, which he later retracted.


“His intense belief in witchcraft disables him from relating with judges and members of staff without suspicion. He persistently says that his traditional doctor informs him that judges and members of staff are bewitching him and that this coming rainy season lightning will strike with catastrophic effect,” states the petition.



Detailing events leading the decision to have Justice Dingake, Justice Garekwe , Justice Letsididi and Justice Busang investigated by the police over housing allowance which were erroneously paid to them, the petition states that: In the last week of July 2015, the judiciary held its annual judicial conference in Mahalapye, where the main theme was the resourcing of the judiciary. The conference resolved that the leadership of the judiciary should seek resources to train staff.  States the petition: “the Chief justice was aggrieved by the resolution taken by the conference on the issue of training, and the whole night of Friday 31st July, he was continuously fuming about this resolution. On the morning of 1st August 2015 at breakfast, the Chief Justice was sitting amongst some judges, registrars and administrative staff, and continued with his training complaint, and then accused some of the judges who were vocal about the training issue that they have been receiving housing allowance when they were not entitled to, and that he will use the issue to destroy their careers. And further that he will ensure that they will never become Chief Justices of the republic of Botswana on the basis that they are not fit and proper. He also threatened to publish the issue of their housing allowance in the newspapers so as to destroy careers. In the cause of the tirade he instructed the registrar of the High Court of Botswana, Mr Michael Motlhabi to submit the list of those judges first thing Monday morning.”



The petition alleges that the Chief Justice “pronounced his intent to destroy careers long before he conveniently convened the Judicial Service Commission to rubber stamp his agenda to destroy careers ; we believe that had the Hon. Chief justice divulged his intention to destroy careers to the judicial service commission, they would not have rubber stamped his clearly malicious agenda.



The 12 judges state that the allegations against the Chief Justice contained in the petition are just the tip of an iceberg. “There are other matters, not stated here because of their extreme sensitivity, which we will present at the meeting of the Commission and the judges.”



The 12 judges however have found very few willing listeners and not much recourse. The JSC does not seem willing to test the allegations against the Chief Justice and instead it is the concerned judges who are now being raked over the coals.


President Khama has set up a tribunal to investigate Justice Dingake, Justice Garekwe, Justice Letsididi and Justice Busang over the petition.



The tribunal will try to establish “whether the letter was indeed written by them and the petition signed by them. The tribunal will also determine if that amounts to misbehavior within the meaning of Section 97 (3) and if so whether the judges ought to be removed.


Although the first leg of the investigation will focus only on the four judges the outcome will be extended to eight other judges who signed the petition.  Justice Solo, Justice Nyamadzabo and Justice Bengbame Sechele have since withdrawn their signatures from the petition.


A letter from the Attorney General to the Registrar and Master of the High Court signed by Nchunga Nchunga dated 10 September states that, the “decision of the court will have far reaching consequences in guiding all the stakeholders and generations to come in handling similar issues.”


Sunday Standard is informed that the outcome of the case involving the four judges will decide how the other eight judges are dealt with.




The Sunday Standard can further reveal that at a meeting between the Chief Justice and President Khama, where a decision to suspend the four judges was taken, President Khama wanted to suspend all 12 judges who had signed the petition. Chief Justice Maruping Dibotelo, however advised the president against suspending all 12 judges saying it would lead to a judicial crisis. Justice Dibotelo proposed that only the four judges should be suspended and dealt with in the meantime. It was agreed that the remaining eight would be dealt with in due course.


In a bid to head off a possible judicial crisis, the Office of the President has approached a number of judges who have signed the petition and promised them amnesty in exchange for withdrawing their signatures. So far only three judges have withdrawn their signatures. It is not clear if the three judges will be granted amnesty and if the same offer will be extended to the four judges who are being investigated in the first leg of the tribunal.


At least four judges have so far been left out of the amnesty deal, among the Justice Moroka, justice Nthomiwa, Justice Leburu.


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