Going back decades, length of stay on the bench has been the main criterion by which judges are appointed Chief Justice.
The current Chief Justice, Maruping Dibotelo, joined the bench in 1997 and ascended when Julian Nganunu retired due to ill health. Dibotelo reaches the statutory retirement age of 70 years in October at a time when the second most senior judge (Justice Singh Walia) would have retired on June 30 this year. After Walia comes the much more youthful Justice Dr. Key Dingake whom precedent makes the next Chief Justice. This is the context all commentators have been speaking about Dingake’s ascent. However, President Ian Khama threw a spanner in the works by suspending Dingake and three other colleagues for drawing double housing benefit.
Solely on the basis of precedent, if Dingake doesn’t become judge, the next man after him is Justice Abednico Tafa. That makes possible the future of a Chief Justice Tafa. However, there is no legal requirement that the president should appoint the longest-serving judge as Chief Justice. There is still disagreement on who between the president and the Judicial Services Commission (JSC) should appoint judges ÔÇô the constitution says the president “in accordance with the advice” of the JSC. The High Court has interpreted this to mean thatthe president has the final say but the Law Society is appealing that judgement at the current session of the Court of Appeal. There is no such (apparent) ambiguity with regard to the appointment of the Chief Justice because the constitution expressly gives such responsibility to the president.
In exercise of such mandate, the president can, in theory, choose to appoint whoever he sees fit to hold the office of Chief Justice. While everyone else has made Dingake Chief Justice, there was never cast-iron guarantee that Khama would appoint him – merely expectation that he wouldn’t buck tradition against reality that, more than anyone of his predecessors, he bucks it a lot. Likewise, there is no cast-iron guarantee that Tafa as the most senior judge in the aforementioned scenario will become Chief Justice.
From information that has come out and from what has become apparent, Khama doesn’t want a too independent judiciary. As a matter of fact, there is a theory that Dingake’s behind-the-scenes campaign to untether the judiciary completely from the executive is the reason he fell out of favour. Legal sources say that while Tafa is not viewed unfavourably in the manner Dingake is, he is also not favoured for the Chief Justice post.
In a different context of precedence, elsewhere presidents have passed up the most senior judges for promotion to head of the judiciary. Just next door in South Africa, Justice Dikgang Moseneke, was twice overlooked for such position until his retirement last year. However, such presidential prerogative comes with risk because in an increasingly interconnected world, perceptions that the judiciary is not independent and that it is headed by an incompetent judicial officer, bode ill for the country’s fortunes. If competence is a factor, Dingake wins hands down on the basis of his legal scholarship. Administration of Justice sources say that when foreign courts and institutions extend invitations to the local bench for international meetings, they specifically request Dingake’s attendance.