The latest in the never-ending saga at the Administration of Justice (AoJ) is that if an independent audit was carried out, it would reveal that a third set of judges also drew housing allowance they were not entitled to.
The housing allowance controversy has shined an unrelenting spotlight on four judges who have been on suspension for more than a year now. The judges are Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang. As the quartet fought a bitter battle with the government, a leaked audit report revealed that three more judges (two still serving, one long resigned and now a cabinet minister) had also drawn that same allowance under the same circumstances. The scope of the special audit, which was ordered by Chief Justice Maruping Dibotelo, covered financial years from 2004 to 2016. According to a Ministry of Justice, Defence and Security source, if the time horizon audit had been pushed back to 2000, many more judges would be exposed for having been paid housing allowance when they stayed in government pool houses. The special audit was done by the AoJ’s internal auditors but sources say that the task should go to independent auditors who are not beholden to management.
The second set of judges is made up of Justices Monametsi Gaongalelwe and Terrance Rannowane as well as current Minister of Education and Skills Development, Unity Dow. From what has been placed on the public record, the Judicial Services Commission (JSC) took a resolution to report the first set of judges to the police for “wrongful payment and receipt of housing allowance.” The actual report was made by Dibotelo who chairs the JSC. Despite the fact that the second set of judges was wrongfully paid and received the housing allowance, no punitive action was ever taken against them. Instead, they were given an opportunity to pay back the money that had been wrongfully paid to them, which option was not exercised with the first set. As the saga unfolds, a tribunal has been appointed to enquire into the fitness of the first set of judges to hold judicial office. No such tribunal has been mentioned with regard to the second set.
These discrepancies notwithstanding, last year Dibotelo deposed to an affidavit in another one of the many High Court applications related to this matter. In it, he said that if other judges are found to have benefitted unduly, the law will take its course: “There is simply no one above the law. The damage to the judiciary would have been occasioned by an attempt to conceal this wrongdoing.” The immediate challenge that the Chief Justice will be facing is to prove that no one is above the law.
Interestingly, the conclusion of the audit report lumps all seven individuals concerned in the same category stating: “Hon. Key Dingake, Hon. Rainer Shakes Busang, Hon. Mercy Tapologo Garekwe, Hon. Modiri Letsididi, Hon. Monametsi Gaongalelwe and Hon. Terrance Rannowane have been receiving housing allowance whilst occupying institutional houses.”
While the public is only now coming to learn of the audit report, it actually came out on May 23, 2016. It was written by Maria Mokgwathi who identifies herself as Senior Internal Auditor and addressed to the Registrar and Master of the High Court, Michael Motlhabi. On that date and as a result of an arrangement made with the Administration of Justice, Rannowane had whittled down his debt to P47 000 from the original P65 000; Gaongalelwe was left with a balance of P63 000 after paying back P41 000 over 41 months; and Dow was left with an P869 balance.
Dibotelo is said to have reported the matter to the police headquarters in Gaborone. In terms of police procedure, all reports are recorded in the occurrence book (OB) as well as the police diary. Typically, the station commander advises what action should be taken after going through the entries of the different cases in the OB and diary. While no written record is said to exist, a police source says that an issue as serious as this one (between them the four judges are said to have pocketed around P974 000) would definitely have been recorded in the OB.
In South Africa, at least one jurist and administrator would be following developments in the Botswana’s judiciary with some anxiety. When established in 2010, it was always understood that one of the objectives of the Office of the Chief Justice in South Africa would be to enhance the financial independence of the judiciary. The rationale was simple: financial autonomy is the bedrock of judicial independence which independence deepens democratic rule. A year later, Mogoeng Mogoeng took over the reins of the judiciary and set about ensuring that the executive delivered on that promise. The result is that the South African judiciary is financed out of a consolidated fund administered by the OCJ.
The OCJ was established around the same time that Dibotelo became Botswana’s Chief Justice succeeding Julian Nganunu. The latter, who died in 2014 is credited with the building of the new High Court and Court of Appeal in Gaborone as well as the introduction of the United States-origin judicial case management and the mobile stocktheft courts that sit in specially-designed buses. Dibotelo, who joined the bench in 1997, will retire next year and some four or so years ago, conversation started about what his own legacy would be. From such process came determination that he should emulate the South African example by making the Botswana judiciary financially independent from the executive. Soon thereafter, a task team that comprised Justices Dr. Key Dingake and Mercy Garekwe was despatched to South Africa on a benchmarking exercise. Chief Justice Mogoeng, who is said to be keen on spreading the South African model to other countries, is said to have welcomed this task team with open arms. Back home the team put together a report that would have been discussed at the annual judicial conference that was held in Mahalapye last year.
Such discussion never happened because having been earlier receptive to the idea of financial independence, Dibotelo is said to have suddenly and mysteriously turned hostile to it. As chairperson of the conference, he took the report off the agenda and wouldn’t entertain mere mention of it.
“Everybody was shocked,” a source says.
This about-turn is explained in terms of a theory that the executive got wind of an active plan to make the judiciary financially independent. Dibotelo was reportedly called to a meeting with the executive, what was discussed remains a mystery but this is the meeting that is supposed to have completely changed his mind about a financially independent judiciary.
Apparently, the issue had long been bubbling below the surface and as a 15-paragraph section from the CJ’s speech at the opening of the 2014 legal year shows, the executive was acutely aware of very strong sentiment within the judiciary to seek greater independence. Titled “Case for the Financial Independence of the Judiciary”, the section makes a somewhat uncharitable comparison between the judiciary and the executive by asserting the fundamental truism that while “governments come and go, institutions remain.” Indeed this is true but some members of the executive (including especially President Lieutenant General Ian Khama) are reported to have cringed with shock. At a subsequent meeting between Khama and Dibotelo, the latter reportedly disowned the speech, saying it had been written by Dingake who had been that playing that role (speechwriter) for quite some time. This caused serious friction between the CJ and Dingake.
An anecdote from that speech illustrates the executive’s determination to maintain a status quo that favours it. As Dibotelo lamented resource scarcity during the course of the speech, Khama was seen to converse with his senior private secretary, Brigadier George Tlhalerwa, who then hurriedly scribbled a note that he passed along to the Attorney General, Athaliah Molokomme. In her own speech, which comes at the end, Molokomme expressed gratitude that she had just received assurance from Khama that the judiciary would receive financial support from the government.
