When all else fails, the judiciary becomes the next and final point of call where disputes of whatever nature are resolved. As expected, this is a structure capacitated by individuals not only sufficiently schooled in law but with those whose levels of integrity, transparency, impartiality, ethical and moral credentials are beyond reproach. Matters before judges are sometimes complex to the extent of bordering on life and death. Any judiciary found wanting in any respect not only loses confidence in its clients being members of the public, but renders it highly challenged to resolve matters before it. Like in any other vocation, there will be bad apples that bring the judiciary into disrepute and should as a consequence, be ruthlessly dealt with within the prescripts of lawful. It is in this regard that Justice Michael Motlhabi of the Botswana High Court is reportedly in a precarious situation following his alleged bad error of judgement as will be alluded to hereunder. This bad error of judgement on his part should the reports be correct, potentially results in judicial misconduct on his part. What is judicial misconduct should be the point of departure?
‘Judicial misconduct occurs when a judge acts in ways that are considered unethical or otherwise violate the judge’s obligations of impartial conduct.’ Similar to this is what is known in the legal fraternity as misbehaviourwhich is defined as ‘When conduct of a judge leads to the credibility of the judiciary being called into question.’
A recently appointed judge of the High Court Justice Michael Motlhabi, who was before the appointment the Registrar of the same court, is in the news for all the wrong reasons. He is alleged in a report carried by the latest Botswana Guardian weekly newspaper to have tried to influence a court matter involving the Deputy Mayor of the Gaborone City Council Mr Keikise Lotty Manyapetsa where the civic leader is contesting his removal from the position of Deputy Sheriff. He was removed from that position together with two other Deputy Sheriffs through a notice titled ‘Notice to the Public-Deputy Sheriffs’ dated 31st March 2020 signed by the Deputy Registrar-Judicial M. Taolo. His removal according to the said public notice, is listed as ‘Failed to resolve conflict of interest’.
Consequent to his removal it would appear, Manyapetsa did not take it lying down and launched the current legal suit still to be resolved. According to the newspaper report, it alleges ‘….Justice Motlhabi is said to have called one of the litigants in a matter before another court, expressing his disappointment that the Administration of Justice (AOJ) has not settled the litigant’s matter of out of court’ (My emphasis). If this indeed took place, Justice Motlhabi would have committed a serious act of judicial misconduct. A South African Judge President of the Western Cape Division of the High Court of South Africa, John Hlophe could be facing impeachment proceedings following his own judicial misconduct which in his case was termed gross misconduct by influencing two judges of the Constitutional Court, Justices Bess Nkabinde and Chris Jafta to rule in favour of a case involving former President Jacob Zuma about thirteen years ago. Hlophe JP was not a member of the Constitutional Court presiding over the Zuma matter.
Hlophe JP was found guilty of gross misconduct by the Judicial Conduct Tribunal which found that ‘Hlophe’s conduct breached the provision of Section 165 of the Constitution in that he improperly attempted to influence Justices Chris Jafta and Bess Nkabinde to violate their oaths of office’. The guilty verdict has been sent to the Judicial Services Commission for further deliberations. It is widely believed he could be impeached. Like they say, only time will tell.
While Justice Motlhabi has not according to the newspaper report tried to influence judges like Hlophe JP, he tried to influence one of the litigants in the Deputy Mayor’s matter. Any act of influencing a process broadly speaking should suggest a preferred outcome is desired. Over and above this, it is alleged Justice Motlhabi called Manyapetsa to find out about the status of his case. If this is correct again, he would have committed an offence that perfectly fits in the definitions of judicial misconduct and misbehaviour. Either way in my view, he stands to be investigated in order to establish the veracity of allegations levelled against him. Pertinent questions should be asked: did Justice Motlhabi not know the repercussions and implications of his conduct given the high office he holds; did he stand to benefit from his conduct; why shouldn’t he be viewed as having seriously undermined the judge presiding over the matter; is he still a fit and proper person to continue holding the high position of a judge of the High Court and, why shouldn’t his alleged conduct be investigated within the prescripts of available law?
Section 97 of the Botswana Constitution which deals with the Tenure of Office of Judges of the High Court should become handy to rescue the situation. Of particular relevance to the subject matter will be Section 97 (3) which provides that ‘If the President considers that the question of removing a judge of the High Court under this section ought to be investigated then-(a) he shall appoint a Tribunal …..(b) The Tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the Judge ought to be removed from office under this section for inability as aforesaid or for misbehaviour’. The mere allegation that Justice Motlhabi became embroiled unnecessarily so in a matter not before him should be a serious case for concern warranting urgent action which action would on one hand protect and preserve the judiciary itself and on the other, deepen the belief in members of the public that dispensing justice in an impartial manner by impartial judges still remains intact. While it will be argued by some on one hand that Justice Motlhabi should not be investigated as per the provisions of Section 97 of the Constitution because the matter is still sub judice, some will on the other argue he is not one of the Respondents. The Respondents are listed as the Registrar of the High Court, Mompati Taolo in his capacity as the Sheriff of the court and the Attorney General.
With the other two arms of government gone horribly rogue possibly to a point of redemption where issues of accountability, transparency and the Rule of Law have become terribly inconsequential, the same cannot be expected of the judiciary. It is the last hope to protect our democracy and constitutionalism. Any allegation of wrong doing be it by a judge or a member of the Administration of Justice, should be proactively investigated within the prescripts of the law. It is in Justice Motlhabi’s own interests and that of the judiciary to get to the bottom of allegations against him such that he is duly punished if he has committed any act of judicial misconduct or he is exonerated. The Judicial Service Commission must as a matter of urgency, spring into action and perform its mandate. It must be seen to be doing so. I am prepared to be persuaded otherwise. Judge for Yourself.
‘No one is safe until everyone is safe.’ Covid-19 numbers may be declining but that does not suggest we are out of the woods as yet. Our best defence still remains adhering to all Covid-19 protocols. It is in our hands to do so.
