The decision by Parliamentarians to throw out the Judges Bill threatens to plunge Botswana into a Constitutional crisis which the government managed to avert three years ago when it entered into an out of court settlement with Lobatse High Court Judge, Justice Maruping Dibotelo.
The Cabinet is under pressure to backdate the Judges Bill that proposes pensions for High Court judges to April 2006 in order to honour the terms of the out of court settlement it signed with Justice Dibotelo in January 2004. Justice Dibotelo was awarded P250 000 in the out of court settlement.
The Lobatse High Court Judge filed the case in 2003 challenging his “permanent and pensionable” appointment and demanding a two-year gratuity for the services he rendered to the High Court in his earlier engagements.
The Botswana Parliament has not prescribed the number of ordinary judges of the High Court as required by the Constitution. As a result, Botswana can not appoint permanent judges until parliament has issued the prescription.
The matter was settled out of court, with the government promising, among other things, to have put in place a pension scheme for judges within two years from January 2004, the date when the settlement was signed. The scheme was to be applicable to all judges.
The Government failed to meet the deadline of the out of court settlement. Justice Dibotelo, however, gave them an extension until last year. The Government has, however, failed to meet the second deadline and is under pressure to backdate the Judges bill to April 2006.
Justice Dibotelo withdraw the proceedings on the basis that, in the event a new pension scheme is not enacted and implemented within two years from the date of the settlement, he would be at liberty to re-institute proceedings claiming payment of gratuity and other relief relating thereto as he may consider appropriate, including interest.
The argument that “permanent and pensionable” appointments of judges were unconstitutional was again raised by the then High Court Judge Peter Collins in 2004. This seemed to open the flood gates for citizen judges who were unhappy with their “permanent and pensionable” appointments.
A number of citizen judges wrote to the Chief Justice notifying him of their intention to challenge their appointments in court. The issue seemed set to snowball into a Constitutional crisis when the Law Society of Botswana joined the debate, pointing out that a number of judges may have been unlawfully appointed to the bench. At stake was the legitimacy of the incarceration of thousands of inmates who were serving time in Botswana prisons and the legal force of judgments that had been handed down by judges whose appointments were being questioned.
The then chairperson of the Botswana Law Society, Omphemetse Motumise, said if it were true that some judges had not been lawfully appointed to the bench then “judgments handed down by these judges would be of no force and effect.”
Motumise said, “If it turns out to be true, some people would then have wrongfully claimed to be judges when in fact they are not.”
“Ordinarily I would not expect judges to clog the courts with their own cases. But a judge who is not certain about his conditions of service can not be free and independent.”
Motumise further pointed out that “this situation has serious implications for the rule of law, judicial independence, the image of the judiciary and the legal profession generally.”
The standoff between local judges and government, however, was never argued out in court because the government promised to review the judges’ conditions of service.
The Cabinet found itself in a crisis recently when parliament adjourned debate on the Bill to a later date pending further consultation. MPs rejected a proposal to have the Bill backdated to April last year.
The Minister of Defence, Justice and Security, Phandu Skelemani, told parliament that there are “rumblings” in the judiciary, but would not let MPs in on the terms of government’s out of court settlement with Justice Dibotelo.