As an indication perhaps that the government has no intention of backing down in a case in which four High Court judges have been indefinitely suspended, the cases they were handling are being divided up among their colleagues who are still at work.
Recently, the judiciary has been undergoing turmoil of epic proportions and not too long ago, President Ian Khama suspended four judges (Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang) for receipt of housing allowance they weren’t entitled to. According to an interim internal audit report, Dingake received P200 467.95 over a period of about three years, Letsididi received P494 323.40 over a period of about eight years, Garekwe received P123 281.10 for about two years and Busang received P105 468.70 over a period of about two years. The total amount for all four is P923 543.20.
Naturally, the suspension of the judges led to serious manpower shortage at the High Court. As lawyers chatted among themselves before the start of a hearing last month, one remarked that he had two cases pending before one of the suspended judges. At that point there was no clear plan of what would happen with such cases but that has since been resolved. Although such cases are now being allocated to other judges, the view of one Gaborone lawyer is that the reallocation process is “somewhat chaotic”.
“There is no transparent or predictable system in place. It is case by case and ad hoc,” the lawyer says.
The example he gives is that where a pending case which had been diarised by a suspended is reallocated, a new judge has to fit it within his own diary which is already filled up for this year.
“A lot of backlogging is taking place,” the lawyer says.
Still under suspension, the four judges’ link to the High Court was in the form of the pending cases and the severing of that link could bode ill for their future in the judiciary. Following their suspension, Khama appointed a three-person tribunal consisting of Justice Craig Howie, who is the former President of the South African Supreme Court of Appeal and a member of the Botswana Court of Appeal; Justice John Foxcroft, who is the former judge of the Cape Supreme Court and the current member of the Botswana Court of Appeal; and Justice Isaac Lesetedi who is a member of the Botswana Court of Appeal. A court application by the four judges to have Khama’s decision to appoint this tribunal invalid failed. They had argued that they had a right to a hearing prior to their suspension pending an inquiry by the tribunal into allegations of their misconduct. At this stage, every indication is that they will be subjected to the tribunal process.
Khama has invoked Section 97(2) of the constitution which says that “a judge of the High Court may be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour.” The only other time in Botswana’s judicial history that this provision was invoked was in 2012 following the conviction of former judge Dr. Onkemetse Tshosa on assault and failure-to-submit-to-a-breathalyzer-test charges. While the tribunal was indeed appointed, it never got to decide Tshosa’s fate because he resigned on the very day it was supposed to convene.