President Ian Khama has been sucked into a fresh controversy surrounding the unending bickering in the judiciary after it emerged that the buck stops with him.
Chief Justice Maruping Dibotelo who is at the centre of a new row over four judges who are refusing to apologise for signing a petition against him this week passed the buck to President Khama.
Responding to an affidavit deposed before the Francistown High Court by Justices Gaopalelwe Ketlogetswe, Lot Moroka, Godfrey Nthomiwa and Tshepo Motswagole, Dibotelo said his decision and that of the Judicial Service Commission (JSC) to continue to forward the issue to President Khama is not irrational as “the matter must be properly concluded with the involvement of the President especially when the petition had not been withdrawn with an apology as it should under the circumstances.”
Dibotelo denied that he and the JSC are investigating the quartet saying the JSC only has powers to refer issues for further scrutiny to the President and not investigate them.
The four men have approached the High Court seeking to interdict the JSC from taking disciplinary action against them.
“There is no decision to open an investigation against the Applicants (judges) as that would be an issue for the President to decide in terms of Section 97(3) of the Constitution,” states Dibotelo.
Dibotelo says the JSC and not he alone made the decision that it should take the petition issue to the four judges for finanlisation. He said the judges then decided to down play the seriousness of the matter by saying it had died a natural death with the passage of time.
“Naturally this response raise eyebrows to the Judicial Service Commission, hence, its consideration to appraise the President of the developments for his guidance and or appropriate action,” said Dibotelo.
He said it would then be up to President Khama to decide whether to “call for an investigation or not hence the intended interdict sought by the judges is misplaced and a misdirection.”
The four judges accuse Dibotelo of abuse of office by playing a major role in ensuring that they are forced to apologise because of his position as the chairman of JSC.
But Dibotelo states that “in terms of the Constitution the proceedings which led to the decision requiring applicants to show cause why this matter should not be referred to the President are valid and procedural even in terms of the members of the Commission who participated in the decision-making. Furthermore, such decision was not made single handedly but collectively,” he said.
He said the JSC can never under the current law, prescribe to President Khama how do deal with a matter submitted to him for his handling.
“Especially, the Commission has no power cause a disciplinary investigation on an appointed judge or the putting in place of a tribunal for a purpose. These are all functions of the President and exclusively presidential prerogatives,” he said.
He said the JSC sees it fit to appraise President Khama on the issue and he may on his own accord determine how it may be logically concluded.
“The President has a right to order the investigation of the matter in terms of Section 97 (3), if he deems it so appropriate,” said Dibotelo.
He said there are no investigations that the JSC has commissioned and in terms of Section 97 of the Constitution, it is the President who can appoint a Tribunal to investigate whether a judge ought to disciplined, removed or not and not the JSC.
“The President is entitled in terms of Section 97 of the Constitution, to decide how this matter may be finally put to rest, including setting up of a tribunal for that purpose, if he deems it the correct thing to do under the circumstance,” he said.
The judges are insisting that they would not apologise to Dibotelo as they took an oath to stand for the truth.
Perhaps echoing the sentiments of his colleagues, Motswagole has warned that “I took an oath of office and made a vow not only to the people of this land but to God Almighty as well to stand for the truth and justice no matter the persons and the consequences involved.”