Tuesday, October 26, 2021

Judges up in arms over new “unconstitutional” regulations

Botswana judges are up in arms following a new set of “unconstitutional regulations” which seek to assert the Chief Justice and Executive power over Judges and undermine judicial independence.

The new regulations, specifically drafted to address the fallout over the suspension of Justices Dingake, Letsididi, Garekwe and Busang in 2015 also proposes a spate of disciplinary measures and opaque appointment procedures.

The two documents, in the possession of The Sunday Standard called “Draft Judicial Service Regulations” and “Application for Appointment as a Judge of the High Court” are seen by a number of High Court judges as giving the Chief Justice broad disciplinary powers and making the appointment of judges less transparent.

Contrary to the current practice of advertising judicial positions for the High Court, the proposed regulations (R50.1) indicates that the Judicial Service Commission (JSC) may “appoint” a person to the position of Judge without first advertising the post. The move is in stark contrast to the increasing calls by the Law Society for greater transparency in the appointment of judges.

While the regulations do not allude to the introduction of a form to be completed by applicants, The Sunday Standard has learned that all candidates seeking appointments as  Judges are now required to complete a form indicating their consent to have their backgrounds investigated by the DIS, and law enforcement. The form further allows the JSC to request personal details from BURS and the Law Society. In a surprising move the JSC requires disclosure of political activity and whether a candidate has over the previous 10 years been involved in active politics.

Potential candidates are required to consent that the vetting exercise and interview results are not “determinative of the final outcome.”  Legal analysts see the clause as limiting candidate’s ability to challenge their appointment as was the case with Justice Motumise. 

The Sunday Standard has learned that the Chief Justice and the Judge President are facing revolt from fellow judges.  The judges have criticised the new reforms as unconstitutional.

Under the new regulations, the Chief justice will become the final arbiter of all complaints against judges, with the authority to initiate complaints, stop complaints, refer allegations to the Police, refer complaints to a disciplinary panel appointed by him (including complaints initiated by the Chief Justice) and to recommend that judges take “paid leave” pending investigations into their conduct.

Among the more contentious proposals contained in the regulations are provisions that empower the Chief Justice, sitting alone, to consider and determine whether a complaint against a judge is frivolous, unsubstantiated or minor.  In such instances the Chief Justice may invoke his discretion and deal with them summarily. The Regulations do not give an indication of which matters constitute “minor indiscretions” though they define “misconduct” as conduct that is “unbefitting a judicial officer”.

The Constitution provides that a Judge may only be removed from office following a decision by the President to accept such a recommendation by a Tribunal established to investigate “misconduct” by a judge. During their suspension Dingake, Letsididi, Garekwe and Busang challenged the right of the President to suspend them and appoint a tribunal as a result of their criticism of the Chief Justice in a petition to the Judicial Service Commission in August 2015.

The suspended judges had argued in their various legal challenges that the Chief Justice was only the “first among equals” and that their criticisms of the Chief Justice, made to the Judicial Service Commission at a time when there were no regulations in place could not amount to “misconduct”. The President had suspended the Judges based on a complaint made to him, later revealed in the legal proceedings to have been made by the Judicial Service Commission and the Chief Justice, that the complaint against the Chief Justice brought the judiciary into disrepute and amounted to “misconduct.”

Under the proposed regulations one of the classifications of misconduct is “behaviour that disrupts the smooth and efficient operation of Administration of Justice.” The classification is seen by judges opposing the introduction of the Regulations, as being overly broad so as to invalidate the unresolved legal disputes over what constitutes “misconduct” for which the President may invoke his power to suspend and appoint a disciplinary tribunal.

The quartet of suspended judges had also challenged the manner of their suspension by the President during their two and a half year hiatus. According to their argument before Justice Tau, they were entitled to a hearing prior to such action being taken against them. While Tau ruled against the suspended judges, their position was supported by various judgments and international protocols, which the court found did not to apply to Botswana. Under the proposed regulations the Chief Justice is empowered to make a recommendation to the Judicial Service Commission that judges be put on “paid leave of absence.” In addition the regulations further stipulate that pending the siting of the JSC to consider the view of the Chief Justice, he may “require” the judicial officer to take “leave of absence”.

The proposed regulations state that a judge is obliged to take “paid leave of absence,” at the instance of the Chief Justice. They also provide that such leave of absence will not impact on the judges “normal leave entitlements.” The Constitution stipulates that only the President has the power to suspend a judge pending an investigation into misconduct. “’A rose by any other name would smell as sweet’ Shakespeare wrote” says one of the aggrieved judges on condition of anonymity.

The reforms envisage a new disciplinary body. The disciplinary panel appointed by the Chief Justice, will comprise a Chairperson and two members who must be of equal or more senior rank to the judge being investigated. The findings of the panel shall then be referred to the JSC which will have the power to adopt or reject the findings. No provision exists for the Judge to make additional representations to the JSC which has the power to forward the findings to the President.

On a recommendation by the JSC the “Offender” has 14 days to make recommendations to the President, who will make the final determination of the complaint and “sentence.” Neither a complainant nor a Judge under investigation will be allowed to use legal representation other than to prepare documents. “There is an old saying that a lawyer (or judge) who represents himself has a fool for a client and given the effect on a judge, a high judicial office, it is questionable as to why legal representation is not allowed, but the most concerning issue is that the President is being given the ultimate authority to either sanction or exonerate a judge, this is contrary to the principles of judicial independence set out by the Court of Appeal in the Motumise judgment” says one of the aggrieved judges “It is disappointing that we as judges are seeking to strengthen executive control over the judiciary instead of breaking its shackles.”

The regulations provide that the President may after considering the complaint, refer it to a tribunal in terms of the Constitution to consider whether the judge ought to be removed from office. The Tribunal may elect whether to consider only written representations or give a full hearing under which witnesses may be called. The regulations do not say whether such hearings will be conducted in public or not. Unlike the disciplinary hearing, the “offender judge” would be entitled to legal representation and the Attorney General would be an “evidence leader”. All costs of the Tribunal would be borne by the Office of the President.  

The proposed regulations are in stark contrast with the similar instruments that govern Judicial Service Commissions in other countries. Where other countries have established rules governing conduct, conditions of service, transparency, security of tenure the proposed regulations seek to make the Judiciary less transparent and more authoritarian. Demonstrably frustrated judges have vowed to oppose the new regulations which are being pushed through in an effort to have them in effect before the end of April this year.

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