The Judicial Service Commission (JSC) was never going to escape a judicial storm created by the numerous judicial on-goings in the judiciary. Primarily and at the centre of the on-goings will be the Chief Justice Terence Rannowane and the Judge Gaolapelwe Ketlogetswe following the bitter spat between them following the latter’s accusation that the former committed some misbehaviour of sorts when he tried on his version, to influence him on a decision that would not embarrass the President. That decision involved Ketlogetswe J ruling against the Member of Parliament for Lobatse Hon Dr Thapelo Matsheka who was appearing on an application to be freed from unlawful custody. The bitter spat between the two judges would result in the two dispatching letters to the President whose purposes were to seek his intervention. Not to be left behind, the Law Society of Botswana (LSB) entered the fray by asking the President to set up a Tribunal in terms of Section 97(3) of the Constitution to deal with the said judicial storm.
The judicial storm is created in my view by how fairly and objectively the JSC will deal with it. This because of how it is constituted. As it is common cause, the JSC is in the main save for one member representing the LSB, constituted by persons directly appointed by the President who himself is a 2nd Respondent in the case launched by the LSB at the Maun High Court. The 1st Respondent is the Attorney General, 3rd the Chief Justice and 4th Justice Gaolapelwe Ketlogetswe. The LSB is seeking relief in the following terms: that ‘The 2nd Respondent decision to refer the complaint against 3rd Respondent to the Judicial Service Commission is reviewed and set aside….The 2nd Respondent is hereby directed to appoint a Tribunal, within 30 days from the date of an Order of the Honourable Court, to investigate the complaint lodged by Justice Gaolapelwe Ketlogetswe on the 11th August 2022 and to consider the removal of the Chief Justice Terence Rannowane…’ It is a given the 1st to the 3rd Respondents will vigorously oppose the LSB case.
The 1st Respondent being the Attorney General is the principal legal advisor to the 2nd Respondent being the President whereas the 3rd Respondent being the Chief Justice is the Chairman of the JSC. I am raising the issue of the two members vis-à-vis their participation in the JSC following this weekend’s Sunday Standard report carried under the title heading ‘Chief Justice Rannowane reports Justice Ketlogetswe to JSC’. The said report says in the opening paragraph that “Chief Justice Terence Rannowane has filed a complaint of ‘gross misbehaviour’ with the Judicial Service Commission (JSC) against Justice Gaolapelwe Ketlogetswe”. It should be a foregone conclusion that the Attorney General and the Chief Justice will be conflicted to participate in dealing with the latter’s complaint in the JSC because firstly, the two are Respondents in the LSB matter alluded to above which matter involves the Chief Justice and Justice Ketlogetswe.
Secondly, the same set of circumstances to argue the matter at the Maun High Court in my view are the same as those that obtain in the JSC with respect to the Chief Justice’s complaint. But then Section 103(5) of the JSC somewhat puts the spanner in the works by providing that ‘The Commission may regulate its own procedure and, subject to that procedure, may act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or participate in those proceedings’. This provision could be interpreted in many ways. One of those could be that the Attorney General and the Chief Justice who are properly members of the JSC in their own right but given the potential conflict of interest owing to their involvement in the matters in the Maun High Court and the JSC, could very well and after all, participate in the JSC proceedings because their participation shall not be invalidated as the provision so provides. I accept I could be very wrong in interpreting this provision. That said, I believe those are some of the matters that potentially stand to throw the JSC in the middle of a judicial storm from which it must disentangle itself.
Would the JSC be under no pressure to impartially deliberate and conclude the Chief Justice’s complaint? I argue that may not be so for the simple reason that it is in the main constituted by the President’s appointees. The President’s footprints are visible in all organs of the State where his word always prevails. These footprints would be ably provided by the Constitution and other laws which in and of themselves give the President unparalleled powers in every sense of the word. Manifesting the footprint view is that not many State actors if any, are endowed with the temperament to call the President to order even when circumstances dictate they do so. It is therefore hard to imagine the political appointees in the JSC taking detrimental decisions against him. I am praying for the JSC to prove me wrong.
The matter between the Chief Justice and Judge Ketlogetswe appeared in the public domain soon after the latter dispatched a complaint letter against the former to the President as early as August 2022. Members of the JSC are also members of the community who would have learnt about the latter’s complaint letter since it was splashed in various media platforms. Given the seriousness of the complaint and its unquestionable damage to the reputation of the judiciary, I would have expected the JSC to have been proactive as opposed and on the face of it, somewhat reactive in setting processes and procedures in place in order to deal with the matter soonest. This particularly because the matter emanated from, and involved two of its ‘clients’. While the procedure to lodge a complaint with the JSC is well documented, I argue very strongly that the JSC should have enquired about the complaint from the two judges.
In conclusion, it my considered view that the JSC is deeply in the middle of a storm arguably and partly out of its making. Had it acted promptly as circumstances required, the probably irreversible harm to the judiciary may have been averted in more ways than one. Time will tell whether the JSC will weather the storm that is daily becoming stronger and destructive. It will be interesting to see whether the Attorney General and the Chief Justice will sit in the JSC if and when the latter’s matter with Ketlogetswe J sits as per the Chief Justice’s complaint to it. I repeat: I am praying for the JSC to prove me wrong. I am prepared to be persuaded otherwise as always. Judge for Yourself!
