Chief Justice Maruping Dibotelo may be caught out in another conflict of interest row in the case involving for judges who were recently suspended from the bench for seeking to impeach him.
The four judges, Key Dingake, Mercy Garekwe, Modiri Letsididi and Ranier Busang are embroiled in a dispute with Chief Justice Maruping Dibotelo, over his decision to take them to Police for criminal investigation, for receiving housing allowances they were not entitled to.
They recently launched a court application seeking an order declaring invalid the decision by President Ian Khama to appoint a tribunal to investigate their potential removal from office.
The four judges had cited President Khama, the Judicial Services Commission, the Attorney General and the Chief Justice as respondents in their application. Although the Chief Justice was central to the case he did not recuse himself from deciding how the case would be heard. Instead the Chief Justice used his discretion to decide how a case in which he was cited as a defendant would be heard.
A letter dated 28th September 2015 from the Registrar and Master of the High Court, Michael Motlhabi and addressed to Chibanda Makgalemele & Company, the law firm representing the four judges states that “Assignment of panel refers; The Honourable Chief Justice has determined in terms of Section 6 of the High Court act ( Cap 04:02) that this matter be heard by a single judge.”
Some lawyers felt that the decision by the Chief Justice to assign a single judge instead of a panel to hear the case was curious considering that a panel of judges has in the past been assigned to hear cases of less gravity and national importance. For example, in the case of the late Gomolemo Motswaledi against the Botswana Democratic Party and President Khama, the High Court case management system had assigned Justice Dingake to hear the case; the Chief justice however used his discretion to replace him with a panel of judges.
The Chief Justice also recently decided to assign a panel of judges instead of a single judge to hear the case in which the Law Society of Botswana (LSB) and senior attorney Omphemetse Motumise are suing President Ian Khama for disregarding recommendations of the Judicial Service Commission (JSC) to appoint Motumise to the bench.
The four judges last week lost their case which was before Justice Tau.
This is the second time in two months that the Chief Justice is caught in a conflict of interest controversy. The Chief Justice was last month accused of conflict of interest and forum shopping in the case of Omphemetse Motumise referred to above.
Sunday Standard is in possession of a speech, allegedly made by Justice Dibotelo to a Southern African Chief Justices Forum in August, in which he states that he personally set up a panel of three Judges of the High Court to preside over the case filed by the LSB.“I wish to preface my presentation by informing you from the onset of the invidious position that I find myself in. Recently I set up a panel of three Judges of the High Court to preside over a case filed by the LSB, wherein it is suing President Khama and the JSC, of which I am chairman,” said Chief Justice Dibotelo. He further explained that the LSB is challenging the decision of the President not to appoint as Judge a candidate who had been recommended by the JSC, and seeking a declaratory order that the President is bound to follow and implement the advice of the JSC. Justice Dibotelo was a lead speaker on a panel to discuss the importance of appointment procedures in ensuring judicial accountability and independence of the bench. Cognisant of the sub judice rule, the Chief Justice said he would avoid making any comments or statements which may be interpreted otherwise. However, he went on to state that the JSC is of the view that the President’s powers to appoint Judges are executive in nature and therefore not reviewable. Further, said Justice Dibotelo, while the JSC embraces the principle of transparency in the interview process, it is of the view that this must be balanced with other competing interests such as sensitive information relating to candidates’ private and social lives. The Chief Justice’s speech rubbed lawyers who are representing the LSB and Motumise the wrong way, as they felt that he was directly conflicted and therefore could not appoint High Court Judges to preside over the matter.
