Of all the parastatal organisations, the Botswana Communications Regulatory Authority (BOCRA) has contributed the highest number of High Court judges.
Currently, five judges are associated with BOCRA either through current or previous employment status with Justices Michael Leburu and Tebogo Tau having somewhat different circumstances. The latter are the only justices in this quintet with a substantive appointment to the bench. Leburu was the first to leave BOCRA’s legal department and would later join the bench via a stint at the Botswana Development Corporation. He was followed out by Tau who became an Assistant Registrar and Master of the High Court before she was appointed judge.
Of the three acting judges, Justice Dr. Zein Kebonang, who was the head of BOCRA’s legal department, was the first to be appointed last April on an acting basis. His redeployment compelled him to resign his chairmanship of the Competition Commission. He was replaced by Dr. Onkemetse Tshosa, a former judge who now works in private practice and in the latter position has appeared before Kebonang. Both are former law lecturers at the University of Botswana.
Then erupted the controversy of the four judges (Justices Modiri Letsididi, Key Dingake, Rainer Busang and Mercy Garekwe) who were suspended 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. The result was that Godfrey Radijeng and Boipuso Tshweneyagae, also from BOCRA’s legal department, were appointed to the bench on an acting basis.
For decades a non-controversial issue largely characterised by behind-the-scenes executive and judiciary engagement, judicial appointments are now a hot potato that is being tossed between arms of government, the Law Society of Botswana (LSB) and the civil society. Section 96 of the constitution says that while the president shall be solely responsible for the appointment of the Chief Justice, “the other judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.” Last year, President Ian Khama rejected the JSC’s recommendation that attorney Omphemetse Motumise should be appointed High Court judge, prompting the LSB to launch a legal challenge that will be heard by a panel of three judges: Justices Abednico Tafa, Singh Walia and Phadi Solomon. The main argument that the applicants (LSB and Motumise) have raised is that the provision in question doesn’t give the president discretion and they want the court to set aside Khama’s decision to not appoint Motumise. The applicants also propose that in future, Botswana should adopt the United States system where candidates for the bench are subjected to a process of grueling confirmation hearings before a Senate committee. As in the US, LSB says that such hearings should be open to the public.
As the legal year opens on Tuesday morning, the turbulence in the judiciary will be the elephant ambling behind every speaker at the podium.