Thursday, April 22, 2021

Khama dragged into judicial crisis

Botswana Federation of Public Sector Unions (BOFEPUSU) will file an application with the High Court for an order to compel President Lt gen Ian Khama to appoint a tribunal to investigate Chief Justice Maruping Dibotelo for misconduct following a circular he issued alleging that judges were bribed by lawyers The Unions have since engaged a South African constitutional lawyer to advise them on the prospects of success in compelling President Khama to set up the tribunal.

In an interview with Sunday Standard, BOFEPUSU labour secretary, Johnson Motshwarakgole said his federation believes that Dibotelo has committed grievous misconduct and the president is under obligation to invoke his powers in the Constitution to set up a tribunal which will investigate Dibotelo. He said they are working on a letter to Khama asking him to set up the tribunal failing which they will have to go to court to seek an order compelling Khama to appoint a tribunal. “The judiciary has always been known for its integrity, now Dibotelo has brought it into disrepute, we believe the President must take necessary action,” said Motshwarakgole. Section 97 of the Constitution empowers the President to appoint a tribunal to investigate a High Court judge for misbehaviour and then report its findings and advice him on whether the judge ought to be removed from office. The same section was used in appointing a tribunal that was to investigate former High Court judge, Dr Onkemetse Tshosa when he was slapped with criminal offences.

It is believed that BOFEPUSU is determined in forcing Dibotelo to resign from office. The federation has also notified the Attorney General of their intention to sue over the controversial circular. In their letter which has been passed to this publication, BOFEPUSU says the decision to prohibit the origination of court processes from the Lobatse Registry is unlawful as it is inconsistent with the rules of the High Court which permit the origination of court process from Lobatse Registry “It is irrational because it does nothing to address the alleged problem of forum- shopping or the taking of bribes by court staff and judges.

There is nothing to suggest that the court staff or judges in Gaborone are less susceptible to bribes than court staff or judges in Lobatse,” the letter reads. BOFEPUSU says the decision is based on the false factual premise that the filing of the same process in Gaborone and Lobatse is indicative of a desire to forum-shop, where in the particular case the decision to take the same process to Lobatse may have been driven by impatience with the amount of time it was taking to originate the process in Gaborone. “The claimant intends to approach a court of competent jurisdiction upon the expiry of 30 days for an order directing that the circular be reviewed and set aside and a costs order be issued against the respondents.”

BOFEPUSU has also given Dibotelo an ultimatum to make an undertaking not to implement the circular failing which it will bring urgent application to interdict the operation of the circular. “It is hoped in the event that such urgent proceedings are instituted, the Chief Justice, through the Judicial Service Commission, will be agreeable to the appointment of a retired judge from either South Africa or Zimbabwe, to come and preside over the matter, in view of the fact that the judiciary has now become polarised and divided between those judges who are prepared to assert their independence, and are therefore viewed as being biased in favour of the citizenry and against the Government, and those who are perceived to be Government loyalists. The Chief Justice will recall that when he had his case against the Government in which he challenged the independence of the judiciary, judge King had to be appointed specifically to hear his case in order to ensure impartiality.”

The unions have also revealed that they have been made aware of a divorce case involving Dibotelo’s former reporter in which he directed that it be placed before him. “But unlike his Lordship we have not jumped to any conclusions.”

RELATED STORIES

Read this week's paper