The four suspended judges of the High Court who have reached an out-of-court settlement with President Ian Khama will not be coming back into the judiciary as heroes, Sunday Standard can reveal.
There is also no guarantee that they will be returning to work immediately – and certainly not as a collective.
They will do so at the mercy of Chief Justice Maruping Dibotelo.
The letters exchanged between the judges and Khama, which Sunday Standard is in possession of cast a time-tested negotiations strategy that the President has in the past used multiple times against opponents.
As a general rule Khama’s strategy follows this simple but shiftless sequence; humiliate your opponent into self-immolation before forcing them to the negotiations table. Then open a window of armistice on condition that they grovel.
And after getting them on their knees, insist on an apology before leaking the contents of the deal to the public.
In his letter to the judges, Khama says he can only accept any apology from them on condition that they withdraw a scathing letter that they had written to Chief Justice, Maruping Dibotelo in which they called on him to resign, basically questioning his fitness to continue holding that office.
Khama also demands that the judges must withdraw the subsequent allegations that they had made to the Judicial Service Commission.
It is also a demand of the President that the judges should withdraw their case currently pending before the High Court “and that no further proceedings in relation to these matters will be continued or instituted on your behalf”.
The suspended judges will jointly and severally pay the legal costs of the Government of Botswana, as taxed or agreed in the litigation.
It is also a condition made on the judges that they pay all previous costs orders as well as costs in the Review Application currently pending in the High Court.
“Upon acceptance of these conditions, I shall lift your suspension from duty and recall the tribunal which I set up. Thereafter, as soon as practicable, having regard to acting appointments presently in place, you will be expected to report for work at your duty station directed by the Chief Justice. Finally I would like to meet with you on Monday March 27, 2017 at 0930 hours at the Office of the president.”
Punch drunk and now out of pocket on account of the high legal fees, the judges responded to the President by accepting wholesale all the many conditions and demands that he had enumerated.
“In the interests of our country and the judiciary, I am desirous of resolving this matter that has been running for too long. To that extent I am happy to accept unequivocally all the conditions contained therein,” writes Justice Key Dingake, the supposed leader of the pack.
Dingake’s letter is an exact carbon copy of the responses by the other three colleagues with whom he served a lengthy suspension.
“More specifically, I hereby apologise and withdraw the letter of August 12, 2015 to the Chief Justice (copied to all judges) and the allegations made therein.”
Dingake goes on to say that he also apologises and withdraws the petition “I signed dated August 17, 2015 addressed to the Judicial Service Commission with the allegations made therein.
“I agree to withdraw the review case currently pending before the High Court and that no further proceedings in relation to this matter will be continued or instituted on my behalf. I agree that I shall propose in writing, to the Registrar of the High Court, how to repay the housing allowance and agree with him on the terms of payment. I agree to pay jointly and severally with other three suspended judges the legal costs of the Government of Botswana, as taxed or agreed, in litigation under MAHGB-000783-15, all previous costs orders, as well as costs in the review application currently pending in the High Court,” says Dingake in his letter to President Khama.
In effect Khama has been able to extract all the demands that he had made.
In yet another previous letter to the President in which the suspended judges proposed the out-of-court settlement, they said it was never their intention to undermine the authority of the Chief Justice or that of the appointing authority.
“…It was never our intention, at any stage to undermine the authority of the Chief Justice and to note that to the extent that our conduct and previous correspondence with Chief Justice was perceived and understood to undermine his authority, we apologise. This apology is tendered without prejudice.
Curiously no mention is made of the criminal investigations by Botswana Police that took effect after the Chief Justice reported the judges for receiving money that was not due to them.