Thursday, October 29, 2020

JSC decision to grant Justice Kebonang leave of absence divides judiciary

A number of judges are unhappy with a decision by the Judicial Service Commission to grant Justice Zein Kebonang an open ended “leave of absence” on full pay, pending the finalisation of the criminal case, commonly referred to as the “NPF Scandal.”

The Judges concerns which have been expressed to the Chief Justice and chairman of the JSC follow a call by the Law Society of Botswana to President Mokgweetsi  Masisi to invoke the provisions of the constitution and suspend the embattled Judge.

The Director of Public Prosecutions (DPP) on November 22nd added Justice Kebonang to a 65 Count Charge Sheet with 11 other accused. The charges against Kebonang and his co-accused were instituted by the DPP after investigation by the Directorate on Corruption and Economic Crime (DCEC) into the embezzlement of government funds currently estimated to exceed P350 million. Kebonang’s fellow High Court judges have informally told the Chief Justice, individually, that Kebonang ought to resign or be suspended and face a disciplinary tribunal in order to protect the integrity of the judiciary.

Speaking to the Sunday Standard, a High Court Judge confirmed that various judges have expressed their views both privately and at meetings with the Chief Justice that the decision by the DPP, Stephen Tiroyakgosi to initiate criminal proceedings against the judge is sufficient ground to warrant the President establishing a Disciplinary Tribunal in terms of the Constitution, “the DPP does not make a determination to prosecute a sitting judge lightly. The decision by the DPP must be based on sufficient evidence to warrant such a charge even if it may ultimately be insufficient to sustain a criminal case. Whether there is sufficient evidence to convict will be determined by the court hearing the charges, but a conviction is not necessary to determine whether a person is fit and proper to sit as a judge. There ought to be some evidence or there would have been no charge, and it is that evidence that calls into question and raises concerns as to whether the said judge is fit and proper to hold office, the integrity of the judiciary is at stake. The judiciary must be beyond reproach.”

Reports reaching the Sunday Standard indicate that the Judge President, Ian Kirby led the debate at the JSC when it granted Kebonang an indefinite leave of absence. Kirby contended that a sitting Judge cannot have their emoluments removed and since Kebonang had not been suspended he ought to retain his full benefits as a judge. The JSC came to the same justification in denying former High Court Judge, Dingake his request for leave of absence to enable him to take up his position in Papua New Guinea. In denying Dingake’s request the JSC indicated that he could not take leave of absence without pay and that he would not have “vacated his office” such that a substantial appointment could not be made to “replace him,” this the JSC argued would incur unjustifiable expenses to the administration of justice.

In 2003 Kirby, then a High Court Judge requested the JSC to allow him to retain his “seniority” in judicial rankings following his controversial appointment as Attorney General.  Kirby was denied the request as it would have, according to the JSC amounted to a leave of absence and breached constitutional principles of separation of power. Then Vice President Khama, assured Kirby that on completing his tenure as Attorney General he would be assured a senior position within the judiciary. In 2010, former President Khama appointed Kirby as Judge President of the Court of Appeal.

In agreeing to grant Kebonang a leave of absence the Administration of Justice (AOJ) is prohibited from replacing him and may only appoint on a person on a temporary acting basis. Given the unknown period for which Kebonang will be away from his post the AOJ acting appointment or appointments will be come at considerable extra expense to the AOJ. High profile corruption cases in the past have taken between 3 to 9 years to complete.

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