Tuesday, October 19, 2021

Wanted: foreign judges ‘with no links’ to Botswana to judge Botswana judges

When Bakgatla’s supreme traditional leader, Kgosi Kgafela II threatened to “eat him alive in court”, it was not the first time that the demise of former president Festus Mogae demise had figured in a court-related setting.

A similar threat was allegedly made on March 16, 1985 (when Mogae was Permanent Secretary to the President) by a woman called Idah Ngope who worked as a temporary court bailiff in the Administration of Justice (AoJ). The other person that Ngope allegedly wanted to kill was then Chief Justice James O’brien- Quinn. As PSP, Mogae was the head of the civil service and as CJ, Quinn was the head of AoJ. Both men they had the final say on matters relating to the deployment of civil servants. At some point in its relationship with Ngope, AoJ decided to transfer her from Gaborone to Serowe. The court record reads: “Idah Ngope on the 16th day of March, 1985 at or near Gaborone without lawful excuse threatened to kill the Chief Justice Mr. O’Brien-Quinn and the Permanent Secretary to the President Mr. Festus Mogae, such threats being made to Calvin Ditlhonamo Sekwababe and to Cynthia Kebaadile Sekwababe. To wit she did say “If we fail to get the Chief Justice legally, we will get him illegally, that if some people in Government could attempt to prevent my case to proceed in suing the Chief Justice we would take his life and throw his body in the dam; we will also take the life of Mr. Mogae as he is the one who gave instructions that I be transferred to Serowe.”

This case, which was prosecuted by Deputy Attorney General, Phandu Skelemani, spawned four more cases, including one in which Ngope sued Obrien-Quinn.  On the reasoning that a local judge would be ill-suited for a case in which the Chief Justice was a litigant, the AoJ decided to bring in a foreign judge, Justice Trengrove.

Some 31 years later, four High Court judges (Justices Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang) find themselves being hauled over the coals by the same AoJ for drawing housing allowance that they were not entitled to. Those sitting in judgement over them are three of their colleagues (Justices Singh Walia, Leatile Dambe and Zibani Makhwade) whose conduct of the court process the four judges are not too happy about. For that reason, the latter want Walia & Co to recuse themselves from the case and to be replaced by a bench of three foreign judges “with no known links to Botswana.” The applicants point out that this has happened in the past and hold up two cases (both involving sitting chief justices) as examples. The first they mention is one in which Ngope sued O’brien-Quinn. The second is one in which Chief Justice Julian Nganunu was being sued by the man who would succeed him years later, the current Chief Justice Maruping Dibotelo. In the latter, Nganunu challenged the government’s decision to give him pension instead of gratuity as had been done with other judges and in an out-of-court settlement would pocket P250 000. 

Even supposing that the suspended judges didn’t have misgivings about the manner in which Walia & Co. are presiding over their case, there would still be another reason why the latter would still be required to recuse themselves.

Quoting personal experience in his recusal affidavit, Letsididi says that what Justices Walia, Dambe and Makhwade have been called upon to do (“evaluate and adjudicate upon issues which will have a personal impact on their colleagues”) will prove an extremely difficult task.

“Having served the Republic on the number of years, I am alive to the sensitivities attending an application of this nature,” Letsididi says.

The collegiate aspect aside, the judge raises the presiding officers’ personal-professional closeness to the case. Minus details from a robust conspiracy version, Letsididi and the other three judges were officially suspended by President Ian Khama for collecting the housing allowance. Also suspended was round-the-clock access to a chauffeured official car.

The suspension was the upshot of saga that until that point, had been playing itself out in the AoJ. Letsididi says that it concerns all four of them that the colleagues sitting in judgement over them have prior knowledge of the circumstances leading to their suspension. For these reasons, the suspended judges feel that there is only way they can get a fair hearing: have their case heard by a bench of three foreign judges “with no known links to Botswana.”

The suspended judges have never been content with the manner in which the courts hearing their matters have been constituted. In September last year when they sought to interdict President Khama from suspending them, the application came before Justice Tebogo Tau. Like the Attorney General which represented Khama, the judges recommended a three-judge panel but to no avail. Through the Registrar, they learnt that Chief Justice Dibotelo had made a determination that Tau would handle the matter unaided. However, similar request with a subsequent application before Walia yielded positive results and is the reason Makhwade and Dambe came into the picture.

Through a letter from their lawyers and citing three cases, Chibanda, Makgalemele & Company, the judges had requested that three judges be empaneled as had been done in the past. The first was when the late Gomolemo Motswaledi challenged his suspension by the Botswana Democratic Party which he was Secretary General of at the time. The second involved Calvin Kamanakao who sought official recognition as paramount chief of the Wayeyi. The third involved a case between the BDP and the Umbrella for Democratic Change that was occasioned by dispute over the 2014 general election results.

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