Sunday, May 16, 2021

Justice Dibotelo ÔÇô court’in trouble

Among members of the Botswana High Court bench noted for their urbane outlook, Justice Maruping Dibotelo stands out as a dyed in the wool traditionalist who hankers after the simple village life. Close associates say Botswana’s Chief Justice is more comfortable holding court with friends over a gourd of traditional beer than toasting with a champagne glass in the cocktail party circuit.

A story that sounds straight out of Apocrypha finds the country’s Chief Justice up in arms, railing that some judges are trying to bewitch him. He threatened a more traditional kind of justice: to retaliate by sending lightning to strike them with devastating effects. If this does not stack up with the stereotypical image of a judge, it is because Justice Dibotelo marches to the beat of a different drummer. This is a metaphor for his leadership style which is both unorthodox and mostly out of step with his charges.

Justice Dibotelo recently sent the country’s judiciary on a tail spin when he issued a memo suggesting that corruption was rife in the judiciary. The Chief justice was forced into apologising to his colleagues to head off a revolt by other High Court judges. The furore was sparked last October by a circular from Justice Dibotelo to the legal community, in which he raised concerns about the practice of “forum shopping”. This is where lawyers supposedly make multiple registrations of the same case in order to raise the chances of being allocated a sympathetic judge. While not directly accusing colleagues of such practices, he made particular reference to judges based in Lobatse division, six of whom went on strike briefly in response to his comments. In the face of a threatened boycott of cases, and with lawyers asserting that multiple applications were simply due to inefficiencies and delays in the case-allocation system, Justice Dibotelo quickly back-pedalled, offering an unreserved apology for impugning his colleagues’ integrity.

Lately, it is almost an article of faith that wherever there is the smell of gunpowder in the judicial corridors, you know that Justice Dibotelo is somewhere nearby. Justice Dibotelo was recently caught out in a controversy in the landmark case in which the Law Society of Botswana (LSB) and senior attorney Omphemetse Motumise are suing President Ian Khama for disregarding recommendations of the Judicial Service Commission (JSC) to appoint Motumise to the bench. Lawyers representing Motumise are accusing the Chief Justice of conflict of interest. Sunday Standard is in possession of a speech, allegedly made by Justice Dibotelo to a Southern African Chief Justices Forum in August, in which he states that he personally set up a panel of three Judges of the High Court to preside over the case filed by the LSB.

“I wish to preface my presentation by informing you from the onset of the invidious position that I find myself in. Recently I set up a panel of three Judges of the High Court to preside over a case filed by the LSB, wherein it is suing President Khama and the JSC, of which I am chairman,” said Chief Justice Dibotelo.

He further explained that the LSB is challenging the decision of the President not to appoint as Judge a candidate who had been recommended by the JSC, and seeking a declaratory order that the President is bound to follow and implement the advice of the JSC. Justice Dibotelo was a lead speaker on a panel to discuss the importance of appointment procedures in ensuring judicial accountability and independence of the bench. Cognisant of the sub judice rule, the Chief Justice said he would avoid making any comments or statements which may be interpreted otherwise. However, he went on to state that the JSC is of the view that the President’s powers to appoint Judges are executive in nature and therefore not reviewable. Further, said Justice Dibotelo, while the JSC embraces the principle of transparency in the interview process, it is of the view that this must be balanced with other competing interests such as sensitive information relating to candidates’ private and social lives.

The Chief Justice’s speech rubbed lawyers who are representing the LSB and Motumise the wrong way, as they felt that he was directly conflicted and therefore could not appoint High Court Judges to preside over the matter. The High Court had nominated Justices, Lakvinder Walia, Abednico Tafa and Phadi Solomon to preside over the lawsuit against Khama and the JSC. However, Sunday Standard is informed that while the names of other Judges were written by a computer, Justice Solomon’s name was written with a felt pen. The LSB then wrote a letter to Michael Motlhabi, Registrar of the High Court, enquiring as to what system was used to appoint the three Judges to preside over the case. They were surprised when Motlhabi responded in his capacity not as Registrar of the High Court but as Secretary of the JSC, indicating that the JSC had chosen not to comment on the matter as it was still before the courts. The LSB attorneys responded, reminding Motlhabi that they wrote to him as Registrar of the High Court and not as Secretary of the JSC.

“We never heard from him since,” they said.

What incensed the LSB more was the decision of the Chief Justice not to respond to their enquiries on who set up the panel of three Judges, rather choosing to brief other people who were not party to the matter. They also accused the Chief Justice of conflict of interest, saying he did not qualify to appoint the panel of three Judges as he is party to the matter before court, in his capacity as chairman of the JSC, which is cited as a second respondent in the matter.

The dust has hardly settled and the lawyers have not even had their day in court and Justice Dibotelo is caught in another row.

 The Judicial Services Commission last month reported Justice Dingake, Justice Garekwe, Justice Letsididi and Justice Leburu to the police over the payment of housing allowance.
The four judges wrote a letter to the Judicial Service Commission (JSC) seeking Justice Dibotelo’s impeachment for reporting them to the police for fraud after allegations that they claimed housing allowance while staying in pool houses. The judges threatened to report him to President Khama who is the appointing authority should the JSC fail to do so. They wanted the Chief Justice impeached.

A number of lawyers say the fall out of the spat between the Chief Justice and the four judges bears the hallmarks of Justice Dibotelo’s leadership style.

Another time, another Chief Justice the issue would have been managed without an issue. A few years ago, citizen magistrates petitioned the former Justice Julian Nganunu, making even more damaging allegations. Justice Nganunu dealt with the situation without risking a judicial crisis.

When the magistrates presented the petition before the JSC, the late Justice Nganunu who was Chairman of the Commission recused himself and Justice Tebutt chaired the proceedings.

Information passed to the Sunday Standard reveals that in the current case, Attorney General Athaliah Molokomme took the judges petition to the President for his attention. The Chief Justice was subsequently summoned by President Khama where they by-passed the Judicial Services Commission and decided unilaterally to suspend the four judges.

A number of judges have joined the fray to fight the corner of the four judges and the spotlight is now on Justice Dibotelo who is carrying the heavy responsibility of judicial war and peace on his hunched shoulders.

As anxious watchers talk of a possible judicial crisis, Dibotelo’s critics say his brand of leadership cannot be counted on to safe the situation.

In fact, Dibotelo is already cocking his rifle and preparing to do battle and indications are that justice may be the first victim. It is understood that the Tribunal may not hear any evidence and may simply point the judges to paragraphs in the petition that have riled the President. Although the four judges had indicated that they may want to cross examine the Chief Justice, it is understood that the tribunal will deny them the opportunity.

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