This judicial crisis emanates from receipt of housing allowances by four High Court judges while occupying government pool houses, which consequently led to their suspension.
The suspended judges are Justices Key Dingake, Mercy Garekwe, Modiri Letsididi and Ranier Busang. They are alleged to have received housing allowances in excess of P800, 000. This simply means this was not once off payment. It definitely happened over a long period of time.
Upon the discovery of the anomaly by whoever, troubled ensued. It is not clear as to who actually detected the error between the Administration of Justice (AoJ) itself and the Auditor General (AG). Neither does it come out clear what the responsible accounting officer (Registrar and Master of the High Court) did to rectify the anomaly, or what action the accused judges undertook to stop the alleged erroneous payments.
What apparently emerges is that Chief Justice Dibotelo in concert with the Judicial Service Commission (JSC) reported the matter to the police. The affected judges in collaboration with other eight judges petitioned the Chief Justice arguing that this was an internal administrative matter that should have been so handled.
As this warring between the Chief Justice and his subordinates played out, the appointing authority, in this instance President Ian Khama suspended the four judges. Khama subsequently in line with constitutional provisions set up a tribunal to investigate the conduct of the judges.
The tribunal, made up by Justices Craig Howie (chair), John Foxcroft and Isaac Lesetedi commenced its work on September 1, 2015 and is expected to complete its works by December 1, 2015. The suspended judges have in the meantime lodged an urgent application with the court seeking to interdict the work of the tribunal. They argue that their suspension is flawed since they were not afforded a hearing before the tribunal began its work (investigation). In their papers before the court, the suspended judges also charge that the tribunal should not have been comprised of judges associated with Botswana’s judiciary. The three judges appointed to undertake the investigation are sitting members of the current Botswana Court of Appeal
The restraining application is expected to be heard by Justice Tebogo Tau on Thursday (September 17th).
While the jurists battle it out in court, the first applicant, Key Dingake has already deposed to a founding affidavit bemoaning that their continued suspension will result affect at least 1 200 cases as each of the quartet has active 300 files that would need to be managed and/or reallocated among the remaining Gaborone and Lobatse judges.
Even more worrying are reports that their other colleagues who co-signed the petition against the Chief Justice could ultimately be suspended. A former constitutional law lecturer at the University of Botswana who has since returned to his country of origin after the expiry of his contract says it had just been a matter of time before the infighting in the judiciary played itself out in the open.
“I am not surprised that the judiciary in Botswana finds itself confronted with these problems. First and foremost, the appointment of judges in Botswana is not transparent. Qualifying candidates who were previously recommended by the Judicial Service Commission were turned down by the president. If judges are to be appointed in accordance with the recommendation of the JSC, why should the appointing authority reject the recommendation? Does he have his own privately constituted panel that advises him on who is eligible and not? Is the President’s panel legally constituted? Is the appointing authority spying on the country’s lawyers so as to inform him on their eligibility to become judges?” asked the former lecturer.
His view is that while there was nothing untoward with the constitution at independence, some of these issues point to the urgent need of Botswana to have a serious relook at its entire constitution so to amend or overhaul it with the aim of aligning it to modern democratic developments.
“A lot of countries are gradually reviewing and amending their constitutions to align them with modern developments. Botswana should not be an exception. What is acceptable at independence is not necessarily acceptable today. It behoves parliament to act swiftly and correct the imbalances that are inherent in the constitution that was adopted at independence. This is not the first time in Botswana that judges and the Chief Justice are at loggerheads. The courts will only go as far as to interpret the laws. The legislature is endowed with the duty to move with the times. This will not only enhance the country’s jurisprudence. It will further enhance the country’s democratic credentials”, said the former lecturer adding some of these developments points to an urgent need for the total overhaul of the constitution.
A local lawyer who did not want to be identified as the matters are still before the courts said the current case should be an eye opener to the legislature. “In fact our parliament currently boasts of a number of lawyers who should be willing to put their heads on the block and call for constitutional reforms. Our constitution has served us well in the past. It has to be synchronized with modern democratic values. It is disappointing that a case of this nature is now affecting ordinary litigants”, said the lawyer.
He added that independence of the judiciary is very crucial for any democratic society and it would be a sad day when the public loses confidence in its judiciary.
“The ordinary people hold the courts and the judges in high esteem. The litigants look forward to the judiciary for impartial decisions. If the public loses confidence in the judiciary, the potential for anarchy looms. Despite numerical strength in parliament, the ruling party must swallow its pride and allow for judicial and constitutional reforms that will move our country forward. Such a move will undoubtedly instill public confidence in the judiciary. The judges are now washing their dirty linen in public. We have always maintained that the legal profession is a noble profession. How does one defend the nobleness of the profession if the judges stoop so low to accuse each other of witchcraft? Would it be unreasonable of an accused person to plead witchcraft in defence? These are just some of the problems this infighting is exposing the judiciary to”, said the lawyer.
He added that internal issues ought to be handled internally without involving third parties.
“I doubt if the accused judges were not willing to repay the housing allowance. If they alerted the payroll officer, should they now sue the officer on the basis of their suspensions? Peace and tranquility should prevail between the Chief Justice and his subordinates”, maintained the lawyer.
He concluded that even if all the judges who petitioned the Chief Justice are ultimately fired, it will take time to instill public confidence in the judiciary as those who will replace them are likely to be viewed as executive minded judges who cannot dispense justice without fear and favour.
