President Ian Khama has appointed two acting judges after suspending Justice Key Dingake, Justice Modiri Letsididi, Mercy Garekwe and Justice Rainer Busang.
Khama appointed former University of Botswana law lecturer and director of compliance and monitoring at the Botswana Communications Regulatory Authority (BOCRA) Radijeng and Deputy Attorney General Bashi Moesi.
The appointments were confirmed by Administration of Justice spokesperson Clement Sibanda.
The appointments of the two men come at a time when the country’s judiciary is in crisis with justices Dingake, Letsididi, Garekwe and Busang embroiled in a legal battle to have their suspension set aside and tribunal set up by President Ian Khama to investigate them for alleged misconduct nullified.
Reports indicate that the four judges are considering appealing Justice Tebogo Tau’ judgment in which she ruled in favour of President Khama.
As President Khama races against time to save the country‘s judiciary from flaring up into a full-blown crisis, some senior lawyers are reported to have declined appointments to the bench on acting capacity insisting that they should be appointed on full time basis.
Sunday Standard has turned up information indicating that Moesi had initially turned down the appointment on the basis that it was not permanent and he was a civil servant.
“He had turned down the appointment on the basis that a civil servant cannot be an acting judge,” said a source close to the latest development. It is understood that when he was approached earlier on he had also refused to resign his position.
“This is because chances are that if he is not confirmed he would have to go back to the Attorney Genera’sl Chambers and this could ruin his career and appear odd in the public eye,” said the source.
Sunday Standard has also learnt that Moesi also faces conflict of interest because he sat on the Judicial Service Commission (JSC) that convened a meeting to refer the suspended judges to the police for receiving housing allowances whilst residing in government houses.
“He was at the time the Acting Attorney General as Dr Athalia Molokomme was outside the country. It is a bit odd,” said the source.
Moesi was also one of the lawyers who had declined to fill up positions of suspended judges on acting capacity as he demanded that he should be appointed on full time basis.
“It is not clear now under what circumstances he has agreed to resign and accept the appointment on an acting capacity,” said the source.
Botswana’s judicial crisis is making international headlines with Amnesty International and SADC Lawyers’ Association this week calling on President Khama to lift the suspension of “the four High Court judges unfairly targeted if the independence of the judiciary is to be preserved” following a High Court decision not to reinstate them.
“The suspension of the four judges over a petition against the Chief Justice constitutes serious interference with their freedom of expression and is a grave threat to judicial independence in Botswana,” said Deprose Muchena, Amnesty International’s Director for Southern Africa.
He added that “It appears that the judges were suspended because of their criticism of the Chief Justice. If this is the case, it’s a clear attack on their freedom of expression which undermines the independence of the judiciary.”
Executive Secretary of the SADC Lawyers’ Association Makanatsa Makonese, said Khama currently holds the rotating position of chairperson of SADC.
“As such a lot is expected from the country in terms of leading from the front in observing human rights and the rule of law in the SADC region during this period. This case is about much more than the targeting of four judges and the curtailing of their freedom of expression and risks compromising the independence of the judiciary,” said Makonese.
The four judges believe the disciplinary action was taken against them as they were seen to be the ring-leaders behind a petition against the Chief Justice. This followed a petition signed by 12 judges, including the suspended four, calling for the impeachment of Chief Justice Dibotelo.
President Ian Khama has since established a tribunal to investigate whether the four justices, could be removed from office for misbehaviour.
Amnesty International and SDAC Lawyers Association stated that the United Nations basic principles on the Independence of the Judiciary recognise that the members of the judiciary are entitled to freedom of expression; provided that in exercising that right, they “shall always conduct themselves in a manner so as to preserve the dignity of their office and the impartiality and the independence of the judiciary” including “professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.
Khama suspended the four judges on 26 August 2015 after they wrote a letter, along with their eight counterparts to the Chief Justice Dibotelo complaining about the poor conditions of service in the Judiciary.
In the same letter, the 12 Judges also collectively disapproved of the conduct of the Chief Justice and questioned his suitability to hold office. The four judges believe the disciplinary action was taken against them as they were seen to be the ring-leaders behind the petition against the Chief Justice.