The Office of the President and the Administration of Justice were this week tight-lipped over reports that President Ian Khama had forced Justice Kholisani Solo into early retirement.
In terms of the Constitution, High Court Judges are supposed to retire at the age of 70.
While details are still sketchy, Solo is reported to have been on sabbatical leave for quite some time before Khama wrote him a letter requesting him to step down. Allegations are that Solo’s relationship with his colleagues, especially junior officers at the Administration of Justice, had collapsed after Sunday Standard broke a story that he was among judges who had sworn their allegiance to the President rather than the Constitution.
At some stage he is reported to have lashed out at the Deputy Registrar in Francistown accusing him of failing to defend when they were under attack from the media. Solo allegedly accused the registry of failing in their duty.
It is understood that after he had gave the Deputy Registrar a tongue-lashing, he turned the heat of court reporters and clerks.
The Registrar and Master of the High Court Machel Motlhabi told Sunday Standard this week that the Administration of Justice was not in a position to comment on Solo’s leave. “This is a matter personal to him, upon which he could only comment if he so chooses.”
Questions were first sent to the Administration of Justice but Motlhabi referred Sunday Standard to the Office of the President. He had earlier stated that the relevant authority to respond to the questionnaire was the Office of the President.
Khama’s Press Secretary Gobe Pitso, however, told Sunday Standard that “in view of the fact that the questions contained herein are purely administrative, you are hereby advised to contact the Administration of Justice on the matter”. Solo could not be reached for a comment.
Sunday Standard had wanted to confirm if Khama had recently written to him Solo asking him to step down as Judge of the High Court before the mandatory retirement age and to establish reasons advanced.
Sunday Standard also wanted to find out if Solo had acceded to the President’s request.
Under Section 97 of the Constitution “a Judge of the High Court may be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section”.
In September last year, Sunday Standard reported that Solo wrote to the JSC withdrawing his signature from the petition against Chief Justice Maruping Dibotelo.
In his letter Solo states: “I fully realise the embarrassment caused to the Chief Justice and the appointing authority and apologise unapologetically about it. I express my loyalty to the Chief Justice and appointing authority who stood for my appointment when I was in my moment of despair.” The appointing authority is Khama.
Justice Barnabas Nyamadzabo also wrote to the JSC to withdraw his signature from the petition. Nyamadzabo stated that, “on proper reflection I have decided to withdraw entirely my association with the said petition and profusely apologise to the Honourable Chief Justice for everything said in the above mentioned petition disparaging his character. When I attended the Mahalapye meeting leading up to the signing of the petition my sole intention was to hear out and seek to understand from our four (4) colleagues the challenges they faced. As things turned out I was soon caught up in group think which often results in poor quality decision making.”
Justice Bengbame Sechele also wrote to the JSC to withdraw from the petition. Sechele stopped short of admitting that he acted on impulse, saying: “I have taken time to reflect further on the letter under reference and have resolved to unreservedly retract my association with same. I further take this opportunity to unreservedly apologise to you for the contents thereof.”
The three judges are among the 12 judges who had signed a petition seeking to impeach Dibotelo. Their decision to withdraw from the petition followed a divide a rule campaign allegedly orchestrated by the Office of the President.
The three judges have admitted to being part of the petition; however at the time of going to press it was not clear if the trio will be offered amnesty and if the same opportunity will be extended to Judges Dingake, Letsididi, Garekwe and Busang who are being investigated by a tribunal set up by Khama. All the 12 judges are at risk of being fired should the tribunal find Dingake, Letsididi, Garekwe and Busang guilty.
The tribunal set up to investigate the quartet will try to establish “whether the letter was indeed written by them and the petition signed by them. The tribunal will also determine if that amounts to misbehaviour within the meaning of Section 97 (3) and if so whether the judges ought to be removed.
A letter from the Attorney General to the Registrar and Master of the High Court signed by Nchunga Nchunga and dated September 10 states that, the “decision of the court will have far reaching consequences in guiding all the stakeholders and generations to come in handling similar issues.”
Sunday Standard is informed that the outcome of the case involving the four judges will decide how the other eight judges are dealt with.
Sunday Standard can further reveal that at a meeting between the Chief Justice and Khama, where a decision to suspend the four judges was taken, the President wanted to suspend all 12 judges who had signed the petition. Dibotelo, however advised the President against suspending all 12 judges saying it would lead to a judicial crisis. Dibotelo proposed that only the four judges should be suspended and dealt with in the meantime. It was agreed that the remaining eight would be dealt with in due course.