All things being equal, Maruping Dibotelo will, at the close of business on October 13 this year (a Friday), step down as Chief Justice and Judge of the Botswana High Court.
However, never before has succession to the most senior position in the judiciary been so uncertain. Based on precedent that makes the most senior judge by length of service Chief Justice, the natural successor is Justice Dr. Key Dingake. The answer to whether he ascends on October 16 lies somewhere between iffy and uncertain. The latter is a direct result of Dingake being on suspension for having drawn double housing benefit like three other colleagues, Justices Modiri Letsididi, Mercy Garekwe and Rainer Busang. A certain cadre of civil servants gets housing allowance in instances when they are not provided with government houses. Over varying durations, the quartet drew the allowance while staying in government houses. On the determination that this constituted theft, Dibotelo reported the matter to the police as well as to President Ian Khama who suspended the judges with a view to removing them from office. The judges have mounted fierce legal challenge and their case has not yet been resolved. If the status quo remains the same and with Khama still in office, Dingake’s ascension appears unlikely. So, what happens in October?
Scenario 1: These being extraordinary times and circumstances in the judiciary, the powers-that-be may invoke extraordinary measures to maintain a semblance of stability.As South Africa’s Chief Justice, Sandile Ngcobo did what those qualified to judge described as a terrific job. However, his term lasted a mere two years because having been appointed to the post in 2009, he reached the statutory retirement age (70 years) in 2011. Thinking he could do something about the situation, President Jacob Zuma decided to extend Ngcobo’s term for five years, immediately provoking a Constitutional Court challenge by the civil society. The case was abandoned when Ngcobo decided to step down of his own accord. Had he stayed on, lawyers arguing the state’s case would probably have pointed out to precedent some 25 years earlier. Granted, that was during apartheid rule but some practices from that era have been retained. Then (1986), President Pieter Botha extended the tenure of Chief Justice Pieter Rabie by three years. Under this scenario, President Khama does what Botha did and Zuma tried to.
Scenario 2:It often happens that judicial officers (being judges and magistrates) stay in post well past the statutory retirement age in order to depose of pending cases. The back-and-forth of the legal process means that all too often cases can drag on past a judge or magistrate’s date of retirement.There is a view in legal circles that these extensions severely compromise the independence of the judiciary – which security of tenure promotes. With such security gone, a judge would perceptibly be less likely to rub those who extended his stay in the judiciary the wrong way. The security of tenure issue is raised in another context. Some High Court judges are working on contract and the view of one senior government lawyer is that this arrangement arguably offends the spirit of the constitution. The latter says that the appointing authority and the judge so appointed “engage in conduct violative of the constitution” for the reason that keeping the appointing authority happy may be a principal condition of keeping such judge in post.
With regard to extensions, Administration of Justice (AoJ) sources say that, in the past, this dispensation has been abused. Dibotelo himself has railed at culprits ÔÇô who happened to be magistrates. What happened in such situations was that someone who had to leave a magisterial post would deliberately drag their feet in the disposing of cases before him or her. Such lethargy would necessitate an extension that made the magistrate (not the justice system) the principal beneficiary. In an attempt to eliminate human subversion, the department introducedan automated case allocation system. However, from what Sunday Standard learns, the same system can be manipulated such that it allocates cases to a departing judicial officer – which would necessitate an extension.
As established, policy and practice means that Dibotelo will have to clear his in-tray before leaving. Our information is that the Chief Justice carries the lowest load on the bench, most of it being unopposed matrimonial and some criminal cases. If he has to stay on to clear his tray, the period of extension would be indeterminate.
When he does finally bow out, Dibotelo would have presided over the most turbulent period in the history of Botswana’s judiciary. The case of the four judges put him in an awkward position because after their suspension, it was discovered that other judges had also drawn double benefit under the same circumstances. However, no punitive was taken in the case of the latter when Dibotelo had stated that “There is simply no one above the law. The damage to the judiciary would have been occasioned by an attempt to conceal this wrongdoing.” Some people within the AoJ have asserted that if an independent and comprehensive enough audit was carried out, it would reveal that many more judges drew housing allowance that they were not entitled to.
Dibotelo’s predecessor, the late Julian Nganunu, was determined to make the judiciary more independent than it was when he took over from the first citizen Chief Justice, Moleleki Mokama.Initially, Dibotelo did himself set his mind on continuing that campaign, at one point dispatching a task team that comprised of Dingake and Garekwe to South Africa to benchmark on how Botswana’s judiciary could be made financially independent from the executive.Back home the team put together a report that would have been discussed at the annual judicial conference that was held in Mahalapye in 2015.
Such discussion never happened because having been earlier receptive to the idea of financial independence, Dibotelo is said to have suddenly and mysteriously turned hostile to it. As chairperson of the conference, he took the report off the agenda and wouldn’t entertain mere mention of it.This about-turn is explained in terms of a theory that the executive got wind of an active plan to make the judiciary financially independent. Dibotelo was reportedly called to a meeting with the executive, what was discussed remains a mystery but this is the meeting that is supposed to have completely changed his mind about a financially independent judiciary.
Apparently, the issue had long been bubbling below the surface and as a 15-paragraph section from the Dibotelo’s speech at the opening of the 2014 legal year shows, the executive was acutely aware of very strong sentiment within the judiciary to seek greater independence. Titled “Case for the Financial Independence of the Judiciary”, the section makes a somewhat uncharitable comparison between the judiciary and the executive by asserting the fundamental truism that while “governments come and go, institutions remain.” Indeed, this is true but some members of the executive (including especially President Lieutenant General Ian Khama) are reported to have cringed with shock. At a subsequent meeting between Khama and Dibotelo, the latter reportedly disowned the speech, saying it had been written by Dingake who had been that playing that role (speechwriter) for quite some time. This incident caused serious friction between Dibotelo and Dingake.
An anecdote from that speech illustrates the executive’s determination to maintain a status quo that favours it. As Dibotelo lamented resource scarcity during the course of the speech, Khama was seen to converse with his senior private secretary, Brigadier George Tlhalerwa, who then hurriedly scribbled a note that he passed along to the former Attorney General, Athaliah Molokomme. In her own speech, which comes at the end, Molokomme expressed gratitude that she had just received assurance from Khama that the judiciary would receive financial support from the government.
