Information has surfaced suggesting that the recent decision to suspend four High Court Judges was a sleight of hand by the Office of the President and Administration of Justice to get rid of Justice Key Dingake.
Insiders have revealed that President Ian Khama’s decision to suspend Justice Dingake, Justice Modiri Letsididi, Justice Mercy Garekwe and Justice Ranier Busang after they were accused of undermining Chief Justice Maruping Dibotelo and bringing the judiciary into disrepute is part of a large and calculated plan to sack Dingake. While President Khama is believed to be marshalling the ascendency of an executive minded bench, Justice Key Dingake on the other hand never passes up an opportunity to speak out against executive minded judges and has even hinted support for a more transparent appointment of judges.
In his paper: “The Role of the judiciary and the legal profession in protecting the rights of vulnerable groups in Botswana,” Dingake does not hide his disdain for executive minded judges. In a tribute to the late Justice Moatlhodi Marumo, Justice Dingake said, “Marumo was of the view that if the powerful in society abuse their powers without restraint, it is essentially because of the dominant influence of timorous souls and those who Lord Atkin, in the celebrated case of Liversidge v Anderson, said were more executive minded than the executive.”
Justice Dingake even hinted that he was opposed to President Mogae’s decision to declare former University of Botswana Professor, Kenneth Good a prohibited immigrant stating: “Not long after joining the bench, he presided over the first phase of Professor Good v The Attorney General case. Professor Good had been declared a prohibited immigrant by the President of the Republic.
He approached the court challenging the presidential directive. Marumo J (as he then was) issued an interim order halting the deportation. The rest as they say is for future historians to grapple with “ but whatever historians” final verdict will be, I am certain that history will absolve him.”
Still in his tribute to the late Justice Marumo, Justice Dingake hinted that he was not happy with the current process of appointing Judges, which has pitted President Khama against the Law Society of Botswana. Justice Dingake stated that, “Marumo never shied away from engaging in open and robust debate. In a recent interview with one of the local newspapers, Marumo sought to challenge all of us to critically reflect on the appointment process of the bench, making it clear that a transparent and merit based process is in public interest.”
Earlier this year, while speaking during a workshop organized for Judges and magistrates by the Southern Africa Litigation Centre, Justice Dingake warned that ‘executive mindedness undermines the peoples’ confidence in the independence of the judiciary.” Justice Dingake reiterated his position last month at a workshop organized by the International Commission of Jurists in Pretoria, South Africa.
Sources within the Administration of Justice and Office of the President told Sunday Standard on Friday that the Office of the President was not happy that Justice Dingake would not toe the line and believed he was anti-government. They believe that is the reason he was withdrawn from the case in which the late Gomolemo Motswaledi was challenging president Khama.
“The truth of the matter is that other judges are guilty by association; they are collateral damage. The main target is Justice Dingake,” said a judicial officer.
Recently this year when delivering judgment on a case in which a foreign in-mate was suing the state for failing to provide him with Anti Retroviral drugs, Justice Dingake slammed the government of Botswana for disobeying orders issued by the court, saying such action will incite anarchy and later come back to haunt the state.
Delivering judgment, Justice Dingake ordered the state to pay the costs of the suit and learn to obey court orders, saying government is not a special litigant that has liberty to disobey court orders as it wishes.
The bench boardroom brawl escalated recently when Justice Dingake and other three judges called for Dibotelo’s impeachment. Sources say both Khama and Dibotelo believe that Dingake was the leader of the petition.
“They want to ensure that he is removed from the judiciary because he is seen as a bad influence among other junior judges; he is a progressive judge. There are even attempts to destroy his career,” the judicial officer added.
Sunday Standard investigations have turned up information that the decision to suspend Dingake and three other judges was taken in secret and not tabled at the Judicial Services Commission. Law Society of Botswana Chairman, Lawrence Lecha confirmed to the Sunday Standard that the Law Society of Botswana representative who sit in the Judicial Service Commission indicated that he was never part of the meeting that recommended the suspension of Judges. He explained that normally the JSC makes recommendation to the president who then takes a decision.
“But if the JSC made recommendations to the president, we were not part of that decision. Our presence was of paramount importance though other members would outweigh us when it comes to voting because they are all presidential appointees.” Lecha said their representative will enquire from the registrar how the JSC could have made a recommendation for suspension of the Judges in the absence of a member of JSC who is the only candidate not appointed by the president.
It has also emerged that the Lesotho Court of Appeal had shown interest in Dingake’s services and approached Dibotelo to establish if he was available. The Chief justice is reported to have informed Lesotho Court of Appeal that he had to take up the matter with President Khama first for consideration.
High Court Registrar Michael Motlhabi and Administration of Justice Sibanda Clement Sibanda failed to respond to two questionnaires from Sunday Standard on the matter. “I’m sorry to say that we are unable to respond to your questions today, maybe Monday next week,” Sibanda said.
The Sunday Standard sought to establish why Justice Dibotelo took up the matter with President Khama instead of the Judicial Service Commission (JSC) since this was not a full-time assignment.
The arrangement proposed by Lesotho Court of Appeal was that Dingake would sit from time to time as may be required by the Court President. In 2013, the Secretary General of the United Nations, Ban Ki-Moon appointed Dingake to the roster of judges of the Residual Special Court of Sierra Leone. This was is not a full time assignment as he sits from time to time as required by the Court.
Sunday Standard also wanted to know if President Khama had set up a tribunal to investigate the Judges before suspending them as required by the Constitution; names of chairman and members and what judicial office do they hold or have they held before. The paper also sought to establish if there will be interim appointments to the judicial bench to fill the vacant posts occasioned by the suspensions and whether the Administration of Justice envisaged any interruptions to the smooth flow of the wheels of justice because of these suspensions. The paper also wanted to know how the Administration of Justice planned to mitigate such interruptions.
When addressing judicial officers in Mahalapye recently, President Khama warned them to exercise caution as the exercise of their functions could have a significant and life changing impact on those they serve, for better or for worse..
“Your core function is to impartially, without favor or ill will adjudicate over cases brought to you expeditiously and to timeously pronounce judgments on such cases. The whole nation looks up to each and every one of you to do so in such a manner without agendas or influences from outside affecting your judgments. You therefore ought to discharge these functions with a high sense of humility, discipline and dedication,” he said.
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