Sunday, May 9, 2021

Khama in fighting for judicial control ÔÇô fresh evidence

Fresh evidence has emerged suggesting that government’s intention to hold the judiciary hostage is at the centre of the fight between judges on the one hand and Chief Justice Mauping Dibotelo and the Executive on the other hand ÔÇô Sunday Standard investigations have revealed.

Chief Justice Dibotelo who has until recently been championing the financial independence of the judiciary alongside other judges has now broken ranks with the rest of the bench and joined forces with the Executive that still insists on controlling the purse strings of the judiciary. Two years ago the Chief Justice appointed a committee chaired by Justice Key Dingake to look into the issue of the judiciary’s fiscal independence. Addressing the opening of the legal year in February, the Chief Justice said he intended “to dedicate my energies and efforts in my remaining period as Chief Justice to advocate for the adequate resourcing of the Botswana judiciary.”

The Chief Justice went as far as questioning the independence of the judiciary in Botswana, suggesting that without fiscal independence the judiciary cannot be said to be truly independent. Making his case, the chief justice said, “An independent judiciary lies at the heart of democracy.” He quoted a number of international treaties which contain provisions affirming the importance of an independent judiciary in a democratic society. He went on to explain that “the principle of judicial independence has two components: namely individual independence and institutional independence. Institutional independence refers to the existence of structures and guarantees to protect courts and judicial officers from interference by other branches of government……. One of the accepted facets of institutional independence is the one concerning financial resources and financial freedom or autonomy that is to be given to the judiciary.

“Today, the concept has been developed and accepted in most of the democracies governed by the rule of law. The doctrine of the separation of powers has been suitably modified and adjusted to achieve the above goal of financial freedom of the judiciary.”

The Chief Justice pointed out that, “the manner in which the judiciary is funded in Botswana needs to be improved. A bold decision in this direction by the government will go a long way in enhancing public and international confidence of the judiciary. Governments come and go but institutions remain. To this extent the judiciary should start laying the foundation of a truly independent judiciary which Botswana can be proud of. Botswana, one of the early democracies in the region and a leader in the rule of law cannot afford to lag behind and be overtaken by new comers.

By new comers, the Chief justice is believed to have been referring to Namibia and South Africa which have moved to embrace the financial independence of the judiciary.

Sources close to the judiciary have revealed that Chief Justice Dibotelo’s speech irked President Khama who felt that it presented Botswana’s judiciary as not independent. The Chief Justice allegedly buckled under pressure, disowned his speech and told the President that the speech was penned by Justice Dingake. The Chief Justice then abandoned his plan to build a legacy of bringing financial independence to the judiciary, and broke ranks with other judges who were agitating for the financial independence of the judges.

While most judges felt that while there are things Batswana may have to give up in these difficult financial times, justice should not be one of them, president Khama on the other hand felt that justice should compete with other national interests for the scarce resources. Addressing the Judicial Conference in Mahalapye in July, President Khama told judicial officers that, “government realises that a properly resourced court in terms of personnel, transport, stationery, witnesses’ provisions and other resources should be able to deliver better service. Botswana like all countries the world over is faced with a number of challenges and key amongst these is resource constraints. The economic recession which we are slowly emerging from stalled our progress as a nation, but we have done our utmost to ensure that our institutions are allocated the necessary funds to operate. There are many competing demands in a developing country like ours. Be they education, health, poverty eradication, HIV/AIDS and many others and we have a responsibility to provide for”, he said.

A number of President Khama watchers, however believe that he wants to retain control of the purse strings because it is a powerful political weapon that can be used against other arms of the state. He has used the state advertising revenue to try and influence the editorial position of the private media. In controlling the purse strings, the executive can reward or punish the judiciary or other arms of the state depending on how they conduct themselves.

At the same conference, justice Dingake presented a paper in which he advocated for the financial independence of the judiciary, even going to the extent of quoting Karl Max. The Attorney General Athaliah Molokomme who at the time shared Dingake’s position praised his paper and acknowledged his reference to Karl Marx.

The following day, the Attorney General however withdrew his support for Dingake’s position and even publicly castigated Botswana law Society head, Lawrence Lecha who during a panel discussion reiterated Justice Dingake’s position. No one know what happened in the hours between Justice Dingake’s speech and Lecha’s presentation, conspiracy theorists however insist that she may have been called to order by the president.

It was immediately after that conference that Dingake and three other judges were investigated for housing allowances. Dingake sat with Justice Mercy Garekwe on the committee on the judicial independence of the judiciary.

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