Save for the revelations by Kgosi Mosadi Seboko on the allegations that the President informed her that he has unfettered access to the judges of the Court of Appeal, two judges of the High Court have given us a compelling picture of how rotten to the marrow the judiciary is. First is Judge Gaolapelwe Ketlogetswe of the Lobatse High Court who through a letter to the President painted a picture of how he was pressured to rule against Lobatse Member of Parliament Hon Dr Thapelo Matseka by the Chief Justice because the President would be ‘embarrassed’ if he was released from custody. Ketlogetswe J also painted the same picture in the same letter how the Minister for State President Kabo Morwaeng also tried to pressurise him in doing the same against Hon Matsheka. As if that was not enough and probably against all expectations, Judge Tshepo Motswagole of the Gaborone High Court issued a Statutory Notice Of Intention To Sue to the President, the Chief Justice and Chairman of the Judicial Service Commission, the President of the Court of Appeal, the Attorney General and Goemekgabo Tebogo-Maruping who has recently been promoted to the Court of Appeal from the position of the President of the Industrial Court. This conversation will largely be anchored on the arguments raised in Motswagole J’s Statutory Notice because it is therein seemingly, where the judiciary rot lies and which rot seemingly again, has precipitated the divisions thereto.
The Statutory Notice To Sue by Motswagole J is premised inter alia on ‘The arbitrary and discriminatory selection of the judges of the High Court for career advancement and elevation to the prestigious offices of the Chief Justice, the President of the Court of Appeal and the Justices of Appeal…The arbitrary and discriminatory impanelling of the judges of the Court of Appeal….The President of the Court of Appeal has, contrary to Section 9 of the Court of Appeal Act transformed this illegal practice into a rule of procedure practice by enactment of Rule 3….There were further selective and secretive increases between 2018 and 2020 extended only to the Chief Justice, the President of the Court of Appeal and Justices of Appeal at the exclusion of the Judges of the High Court. This has resulted in a huge disparity with the Judges of the High Court…. ’ Motswagole J’s prayers from his filed documents are essentially of a declaratory nature whose intention is to address the numerous aspects of injustices as detailed in the said court documents as they relate to judges conditions of service and others.
The revelations by Ketlogetswe J and Motswagole J are revealing if not telling that not all is well in the judiciary as we have been led to believe. Boatlhodi bo bodile jaaka makala a mangwe a puso! (The judiciary is rotten like other arms of government). The good thing in all these revelations is that judges say so as opposed to the outsiders. In the case of politicians overreaching the judiciary, it is not far-fetched to suggest this has been on-going probably for time immemorial. It got horribly wrong in the case of Kgosi Mosadi and Ketlogetswe J probably because the politicians thought they could get away with murder as it has probably been the case in past. They got complacent on the false pretence that every person in the public service would allow themselves to be used for nefarious reasons. Only for the politicians to receive a rude awakening from which they wished they could borrow the proverbial bury their heads in the sand.
It appears from Motswagole J’s complaints that the judiciary is glaringly divided right down the middle in that there are judges who have benefitted handsomely from the skewed ‘arbitrary and discriminatory’ conduct by those in the highest leadership positions of the judiciary ably aided and abetted by those in the highest political positions. It is on record that judges’ conditions of service particularly those to do with their remuneration is processed through parliamentary processes. Since I have been following parliamentary proceedings, I have never heard where the remunerations of the Chief Justice and President of the Court of Appeal have been specifically addressed at the detriment of other judges. It will be astonishing if indeed there have been selective and secretive increases extended only to the Chief Justice, the President of the Court of Appeal and Justices of the Court of Appeal at the exclusion of judges of the High Court. It goes without saying! In any employment situation, this boils down to what is termed unfair labour practices. The consequences of unfair labour practices in the main negatively impact employees’ morale and productivity. Arguably, this is what is demonstrated by Motswagole J. This by any account would be the beginning of the stinking rot in the judiciary.
The other stinking rot in the judiciary as raised by Motswagole J is the one that has been in the public discourse for sometimes. And this is to do with the secretive nature of the appointment of Justices of the Court of Appeal. Every judge I want to believe, aspires to serve in the Court of Appeal. He captures this point by saying ‘The failure to advertise vacant offices of the Court of Appeal and engaging in secretive system of ascertainment of interest of potential candidates is improper and contrary to law….The failure to publicise objective eligibility criteria and selection method of filling up vacant offices that is conducive to judicial independence and impartiality prescribed in Sections 10(1), 10(9) and 10(10) of the Constitution…The establishment of a preferential policy by the Judicial Service Commission , reserving 50% or any portion of the twelve offices of Justices of Appeal prescribed by Section 4(1) of the Court of Appeal …..to the nationals of other countries to the exclusion of the citizens of Botswana under the false pretext that Botswana is a small country….is contrary to law and ultra vires the Constitution and the Court of Appeal Act’.
Various courts in this country are daily inundated with labour matters where complainants complain about this and the other unfair labour practices. Some of them would identically or similarly be in the context as raised by Motswagole J wherein they end at the Court of Appeal where the Chief Justice and the President of the Court of Appeal amongst others would sit and make a final determination. Yet and according to Motswagole J, he accuses these two of determining the very issues he accuses them of committing. Revisiting the unfair labour practice analogy, employers are known to be notorious for dividing the labour force by secretly increasing salaries of some employees, targeting and forcing some to be submissive with the expectation they could at some point benefit from the secretive increasing of their salaries. The same appears to be the case in the judiciary.
I have repeatedly asked myself whether Kgosi Mosadi, Ketlogetswe J and now Motswagole J would stoop so low to make such damaging allegations on the judiciary for no good cause.
My answer remains in the negative for one reason until and unless a compelling argument is made to the contrary: they would have known the dire consequences for doing so given their high profile positions. Since Kgosi Mosadi and Ketlogetswe J allegations on the judiciary, the perpetrators have dismally failed to this day-to offer compelling rejection. The presidency attempted to do so with that appalling school-boy press release. It will be interesting to watch how the Respondents to the Motswagole J Statutory Notice respond.
With the stinking rot demonstrably exposed by the judges themselves, who are we the riff raff to dispute the authenticity of the allegations they make. Motswagole J is a colleague of members of the judges who have been promoted to the Court of Appeal. He is better placed to know how much they earn and how they were so promoted and other attendant shenanigans. It shows just how insensitive should Motswagole J allegations be proved people in positions of power and authority have become the perpetrators of the said insensitivity-cum-injustice against their very own. Just how comfortable in their consciences are the Chief Justice and the President of the Court of Appeal when some members of the institution they lead are appointed secretly? It looks like the revelations towards the judiciary could be the tip of the iceberg. One hopes and prays however more dirt is not displayed any longer. But my gut feeling tells me more stinking rot is on the way as seemingly, it cannot be hidden away any longer. I am prepared to be persuaded otherwise as always. Judge for Yourself!
