The four suspended judges; Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang seek an urgent order staying their suspension pending the outcome of review proceedings of the decision by President Ian Khama to suspend them.
In their heads of arguments judges argue that it is competent for them to seek a stay of their ongoing suspension given its continuing adverse consequences.
The judges contend that the decision to suspend cannot be challenged or stayed once it has been implemented. On this reasoning the judges could not launch proceedings to review the decision by Khama to suspend them after 1 September 2015.
Judges attorney Advocate Sean Rosenberg told court on Monday that the suspension of the judges threatens the separation of powers and the independence of the judiciary hence it is imperative that the matter be speedily resolved.
Advocate Rosenberg said the matter raises very important and weighty constitutional matters of great importance in Botswana’s democracy.
“It is centrally concerned with whether the judges have properly been precluded from fulfilling their judicial functions. It raises important questions relating to the protection of judicial independence and the proper separation of powers. It is also directed at safeguarding the judges’ rights, and protecting them from irreparable reputational damage and financial harm,” he said.
Rosenberg is of the view that matters of this nature can also not await a hearing in due course and need to be addressed and adjudicated upon with expediency having due regard to the impact on the country as a whole.
The judges’ attorney also dismissed President Khama’s contention that the judges should have challenged the suspension decision before 1 September 2015.
“It is submitted that this claim is untenable having regard to the fact that preparation of court papers, more especially of a complex matter such as this one involving many litigants is necessarily time consuming. The President is suggesting that in the period between 27 August and 31 August 2015, the judges should have resolved to institute proceedings, appointed legal representatives, consulted with those representatives, drafted and commissioned papers, and served and filed those papers,” he said.
Rosenberg said the President’s time frame was totally unrealistic, hence his argument cannot stand.
He further explained that the allegations against the judges do not suggest that they are incapable of fairly and impartially determining matters before them therefore the work that the judges have done and the judgments that they have given in the interim will not be open to challenge or doubt.
