Thursday, October 28, 2021

Last four ‘dissenting’ judges throw in towel

The last set of four High Court judges who signed a controversial petition that was critical of Chief Justice Maruping Dibotelo has apologised to both the latter and the Judicial Services Commission.

They are Justices Gaolapelwe Ketlogetswe, Lot Moroka, Godfrey Nthomiwa and Tshepo Motswagole.

This apology comes after the Registrar and Master of the High Court, Michael Motlhabi, wrote the four judges giving them until Friday (June 9) to apologise for their association with a 2015 petition in which 12 judges criticised Dibotelo’s stewardship of the judiciary.

In the petition, titled, ‘Leadership Crisis in the Judiciary’, the petitioners alleged that among others Dibotelo had threatened to destroy their careers and that his “intense belief in witchcraft” had strained his personal relations with judge colleagues and other members of staff.

“He persistently says that his traditional doctor informs him that judges and members of staff are bewitching him and that this rainy season lightning will strike with catastrophic effect,” the August 2015 petition reads.

Matters came to a head with the suspension of four judges – Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang ÔÇô who were accused of having drawn housing allowance they were not entitled to.

President Ian Khama suspended them and Dibotelo reported the matter to the police. In the resulting court case, in which the four judges challenged their suspension, Nthomiwa and Ketlogetswe, deposed to confirmatory affidavits in their support.

Levels of commitment to the cause varied and it was just a matter of time before the obvious happened. First to break ranks was the quartet of Justices Kholisani Solo (now retired), Barnabas Nyamadzabo, Bengbame Sechele and Michael Leburu who formally withdrew from the petition.

While the first three wrote apology letters, Leburu apologised verbally to the Chief Justice. At what would have been considerable financial cost, Dingake & Co. slogged on, their court appearances garnering front-page news for an extended period of time. In the course of this saga, it emerged (through a leaked audit report) that some other judges had done the exact same thing that the quartet had been suspended for and that no punitive action was ever taken against them.

Some three months ago and out of the blue, there was another dramatic development. Khama lifted the suspension of the four judges and disbanded the constitutionally-mandated tribunal that was to investigate whether they had acted improperly.

The judges reciprocated by withdrawing their court case. Soon thereafter, the Permanent Secretary to the President, Carter Morupisi, revealed that the judges had apologised to both Khama and Dibotelo. This meant that of the 12 petitioners, Ketlogetswe, Moroka, Nthomiwa and Motswagole were the only ones to not have apologised. That changed following a recent JSC meeting at which a resolution was taken to rein in the four hold-outs.

Thereafter, Motlhabi wrote all four a letter demanding that they apologise for their association with the petition and, in the case of Nthomiwa and Ketlogetswe, with the Dingake & Co. court case. All four capitulated and from what Sunday Standard learns, each one of them submitted the apology letter on Friday which was the deadline for them to have done so. This means that each one of the 12 judges who petitioned Dibotelo in 2015 has apologised.

Having notched up such a perfect score, Dibotelo is clearly the winner but this unfortunate episode will also become part of his legacy. While he won, the judiciary lost alongside the 12 judges who petitioned him.

By any objective measure, the saga was a public relations disaster for an institution that, up until then, was one of the most respected in Africa. The saga forced dirty linen out in the open and the world is now looking at Botswana’s judiciary with a side eye. If there are plans to rehabilitate the judiciary’s image, they are being kept under wraps and if there are any more to apologise to the nation, they have also not been revealed. At least for as long as Dibotelo is Chief Justice, his Pyrrhic victory bodes ill for the future of the judiciary.

Under the current climate, there will be no campaign for the financial independence of the judiciary, something Dingake was said to be championing.

It is in the nation’s interest to have a truly independent judiciary but it is highly unlikely that the campaign for one will be aggressively waged from within the bench as was the case before. This is certainly not in the interest of Botswana’s democratic promise.

A highly placed Administration of Justice source says that the real reason why the South African Chief Justice, Mogoeng Mogoeng, was as assertive as he was in a case in which President Jacob Zuma was being challenged for exorbitantly sprucing up a personal residence with state funds, was because the judiciary in that country is financially independent. Against the expectations of most, Mogoeng delivered a judgment in which he severely criticised Zuma for having failed to uphold his oath of office.

Botswana’s underfunded judiciary still relies on the executive for funds. Such dependence limits the extent to which the judiciary can be assertive with the hand that feeds it.

At a personal-professional level, it is also going to be a steep climb for some members of the bench. Never before in the history of Botswana’s judiciary have so many judges had to literally sit in judgment of their colleagues. This has obviously adversely affected the bench’s collegiality and restoring personal-professional relations to their pre-crisis levels is not going to be easy. Bromides about judges being guided by a code of ethics are easy to make but the reality is that human emotions and attitudes are not operated like an electrical switch.

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