The ongoing litigation between the Executive, the Judicial Service Commission and the Chief Justice on one hand and the four suspended Judges Dingake, Letsididi, Garekwe and Busang on the other will only have one effect: a loss of public confidence in the Judiciary.
The Internal Audit Report on Judges’ Housing Allowance dated 23 May 2016 has found that seven judges in total erroneously benefitted from their housing allowance, the currently suspended four judges together with Justices Rannowane, Judge of the Court of Appeal (then High Court Judge) Gaongalelwe and former Judge and now Minister Dow.
The new Audit established to ascertain the status of housing benefits for all Judges found that no judge had signed a Vacation Certificate as required by Cabinet Memorandum No 90 dated 6th May 2015 Ministerial File No MDJS(S) 1/13/32 1. The memorandum which was issued well after the current question of occupation of houses and payment of Housing benefits to Judges states that judges upon “occupation of official free residence and when he or she vacates it, he or she shall sign an appropriate home occupation and vacation certificate which is required by the Housing Officer”.
The Audit does not seek to explain why the cabinet memorandum, dated as it is in 2015, just over two months before the dispute between the Chief Justice and the four suspended judges arose, has a bearing on the current audit investigations. Memorandum, directives or legislation do not apply prior to the date of their commencement unless they specifically state that they are to apply retrospectively. Whilst immaterial the current audit does not take this into account.
The Report reveals that of the seven Judges who were all erroneously paid the housing allowance only Justice Dingake wrote, on at least 2 occasions, to the Administration of Justice requesting that they deduct the overpayment. The administration of Justice failed to act on his instructions.
During the initial litigation challenging their suspension which came before Justice Tau at the High Court, the Chief Justice personally deposed to an affidavit in which he set out the basis for the suspension of the four and his reasoning for it. Stating that as the actions of the then applicants appeared to constitute a potential criminal conduct, the Administration of Justice could not be a complainant, investigator and adjudicator in the matter. Further he opined that it was also in the best interest of the four judges that whatever allegations had been levelled against them be tested by an independent and credible body, in the form of the Botswana Police Service. According to the Chief Justice the matter of overpayment was one of public policy, and consequently that it would have been wrong for the Administration of Justice to conceal the wrongdoing or to apply different ethical, moral and legal standards to the applicants. The Chief Justice went further at the time to question the affidavits filed in support of the suspended Judges, by Justice Godfrey Nthomiwa and Justice Ketlogetswe, who said the issue of suspended judges receiving housing allowance while living in government house was an administrative matter. “The attempt by the two Justices to trivialise the unlawful conversion of close to one million pula and describe it a mere administrative matter is shocking to say the least,” said Dibotelo.
In March 2016, the Minister of Labour and Home Affairs Batshu answering a parliamentary question advised parliament that the three Judges of the Industrial Court, who had received over payment on their Housing allowance, had made repayment arrangements with government for it to be refunded as an administrative matter and that consequently no sanction either criminal nor administrative was going to be contemplated. The Ministry of Labour and Home Affair did not engage the Botswana Police Service as an independent arbiter to conduct independent investigations.
On the 19th August 2016, the Administration of Justice issued a Press Statement condemning allegations in an Editorial Article in the Mmegi Newspaper. The press statement issued over three months after the Audit report was signed and delivered to Acting Deputy Director Internal Audit C. Matsheka stated that the Industrial Court Judges that benefited from the Housing Allowance in the same manner as the current suspended High Court Judges, did not fall under the Administration of Justice but the Minister of Labour and Home Affairs. Criminal wrong doing is not defined by the organisation or Ministry a person falls under but by the conduct of the suspect. The Chief Justice has accused the four suspended Judges of “theft” and “unlawful conversion” of government funds which constitutes a criminal offense under the Penal Code. Criminal Law does not differentiate or apply different standards of conduct to Industrial Court Judges as against High Court Judges.
The position that a different set of standards apply to different category of persons and that potential criminal conduct is limited by the institution that a person is employed under is nevertheless consistent with government’s failure to act on allegations of criminal conduct by the Head of the Directorate on Intelligence and Security Services, Isaac Kgosi.
The Press statement does not disclose the latest revelations of the Audit Report but states that the Mmegi Newspaper did not indicate that three Judges, two of the High Court and a single Judge of the Court of Appeal have instituted legal proceedings against the Newspaper for substantial sums arising from on a claim for defamation of character as a result of the wrongful accusations made against them on the basis of overpayment of the Housing Allowance.
The Press Statement stipulates that the “four suspended Judges received and kept for themselves a total of over one million pula in undue housing allowances, over a period of several years. None of the money has been repaid”. According to the audit report the total sum overpaid to all the named seven judges not four, amounts to P1 085 161,05 (one million and eighty five thousand one hundred and sixty one pula and five thebe). Minister Dow, who left the Judiciary and had been paying off the overpayment made to her still has a balance of P869.85 (eight hundred and sixty nine Pula and eighty five Thebe) outstanding.
The conclusion of the Audit Report at paragraph 3 find, as was similarly found in the case of the Industrial Court Judges that “The Administration of Justice failed to issue casualty returns to terminate payments of housing allowance upon occupation of institutional housing by Hon. Judges and no monthly reconciliation was done to detect payment of allowances to non eligible (sic) officers”. Under current legislation any “wrongdoing” relating to overpayment under such circumstance is attributable to the paying officer; The Registrar of the High Court.
The dispute between the four suspended judges arises, as is clear from their letter of suspension by Khama, not from the erroneous payment of the Housing Allowance but the petition they filed at the Judicial Service Commission against the conduct of Chief Justice Dibotelo. The Administration of Justice Press statement distances the Chief Justice of a “brazen conflict of interest” stating that the Chief Justice was not acting alone in his determinations to refer the four suspended judges to the Police but in conjunction with and on the joint resolution of the members of the judicial service commission. While the current events in the judiciary have no precedent in Botswana, in 2009, Magistrates filed a petition to the Judicial Service Commission relating to their conditions of service, which conditions of service fell under the oversight of the late Chief Justice Nganunu. The petition, worded in exceptionally harsh terms was seen by the late Chief Justice Julian Nganunu the then Chairperson of the Judicial Service Commission as giving rise to issue of conflict of interest. He promptly recused himself from the deliberations on the complaints having no input as an individual that may have been affected by the determination of the complaints.
The Chief Justice Dibotelo has been no stranger to controversy in the past, following allegations of attorneys forum shopping the Chief Justice issued a letter at was interpreted by Judges to impugn on their character and integrity. The resultant fall out in the Judiciary caused Dibotelo to issue a public apology via a Press Statement dated the 18th October 2013 in which he stated that “I want to make it clear to all and sundry that at no stage did I intend to impute impropriety to the Judges. For the record, I hold the Judges of this Republic in the highest esteem and have complete confidence in their integrity, independence and impartiality. Consequently, to the extent that I was understood to impute that Judges are corruptible I have unequivocally apologized to them and assure the public that they have a corruption free judiciary acknowledged the world over for its integrity, independence and impartiality”.
Opening of the Legal Year on the 1st March 2005 the Late Chief Justice Nganunu said:
“We are constantly renewing ourselves so that in the long run our judicial system and its judicial officers, together with all support staff, will be the envy of the people of Botswana. When looking at the services we should be providing to the people of Botswana we also take cognizance of the fact that we now live in a global village where our work and efforts should not only satisfy the people of Botswana but should measure up to international standards. Hopefully such standards are not just set by one country or a small group”
Contrary to the aspirations of the late Chief Justice and regardless of the fact that “It is the Court and the Tribunal which will decide upon the issues raised, not Mmegi or its informant(s)” it will be the Public confidence in the Judiciary that will decide the issues raised regardless of how the Court or Tribunal rules. Confidence in the Judiciary both at home and in the eyes of the international community is being undermined by its internal squabbles.