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Ski skates on thin constitutional ice

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gazette reporter

This week the long ongoing legal battle between Justices Dingake, Letsididi, Garekwe, Busang and the President came to an abrupt conclusion with an out of court settlement. The final peace accord is significant not so much for the much publicised apology by the judges but rather by the blatant willingness of the president to impinge into the separation of powers. The Gazette looks at the implications of the president’s actions.
The press release by the Office of the president on the 28th March, announcing that the parties had reached “a set of settlement proposals” takes it for granted that executive intrusion into the judiciary, the Director of Public Prosecution (DPP) and the Judicial Service Commission (JSC) is a perfectly acceptable method of resolving disputes within the higher echelons of government. The “set of settlement proposals” envisages that despite each of these institutions being independent at least insofar as applicable in a democratic society that recognises the separation of powers, the JSC, DPP and the Administration of Justice (AoJ) will all conform to the whims and instructions of the president.
The agreed set of proposals require that Justices Dingake, Letsididi, Garekwe and Busang “withdraw” their letter of complaint against the chief justice (12 August 2015) and the subsequent Petition (17th August 2015) to the JSC. Both the letter and the petition, the latter signed by 12 judges of the high court raised issues concerning the ability of the chief justice to oversee the judiciary. Specifically the petition accused the chief justice of; bringing the judiciary into disrepute by carrying out his threat to ruin judge’s careers; invoking tribalism; racism and accusing judges of corruption without foundation and being forced to subsequently withdraw such allegations. The petition furthermore stated that “the above constitute but only the tip of the iceberg. Not stated here because of their extreme sensitivity, which we will present at the meeting between the commission and the judges.”
The JSC never afforded the signatories of the petition a hearing and has to date not determined the complaint against the chief justice either in his favour or against him. Of the 12 judges who signed the petition, 8 have now withdrawn, leaving 4 signatories, justices Moroka, Ketlogetswe, Leburu and Nthomiwa who have not withdrawn their signatures. The petition as a result remains alive. In order for the judiciary to regain or retain its moral standing the complaints contained in the petition cannot be left undetermined.
The issues raised in the petition give rise to deep concerns into the wellbeing of the judiciary and its ability to fulfil its functions; its service to the public and its oversight role of the legislature and the executive. As an equally important consideration, an effective judiciary can only function if it has a moral basis to do so.  The ideal of a separation of powers, requires that the judiciary is on a level playing field with the executive and the legislature. The reality however, is that in the political, financial or enforcement framework of the state the Judiciary cannot compete with the other arms of government, making it the weakest of the three arms. It is reliant for example on the executive through the police, to enforce it orders. In spite of these weaknesses its independence and authority are essential. The judiciary with no constituency, no finance and no police by means of which it can enforce its independence and authority must rely on its sole source of legitimacy, that of its moral authority.  In the absence of such moral integrity and authority, it cannot perform its vital function as the interpreter of the constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the constitution the rights it contains.
The president however assumes that the withdrawal of the petition by the current four, who have always been perceived as the “ring leaders” would be the end of the concerns raised by the 12 judges against the chief justice. This cannot be so. The concerns raised in the petition, which are known to the public have not been resolved and speak to the moral integrity of the court and the administration of Justice. There is a moral, let alone a legal duty on the JSC to determine the validity or otherwise of the complaints against the chief justice. The agreement between the president and the 4 judges, in so far as it seeks to undermine the petition against the chief justice, does not extinguish this duty to the public by the JSC.
The president having entered into the current agreement cannot instruct the JSC not to determine the petition. Such action, in its own right, would be a violation of the separation of powers. Similarly the JSC cannot use the agreement between the 4 judges and the previous withdraws to stop the proceedings. The allegations raised against the chief justice are of such a nature that whether or not all the complaints are withdrawn they ought to be investigated. Public interest in the integrity of the ourt, demands it.
The JCS had replied to the initial letter of complaint by the 4 judges, by stating that since the matter of the chief justice’s complaint against them in respect of the housing allowance had been referred to the Botswana Police Service (BPS) it would not meet the judges to hear their complaints as the investigations were still underway. The over payment of the housing allowance has now however been debunked of any validity.
The housing allowance was a red herring, designed, successfully so, to obscure the real issues concerning the complaints against the chief justice and raise moral questions against the 4 judges. It never formed part of the president’s grounds for constituting the tribunal against the judges. Moreover, the Final Audit Report on Housing Allowances to Judges dated 23rd May 2016 clearly exonerated the 4 judges in that it found systematic faults by the paying officer in theAoJ. If any wrongdoing was going to be attributed it would have been to the paying officer in terms of the Public Finance and Management Act. Had any fault been attributed to judges based on the audit report then all listed in it would have been guilty of wrongdoing and equal action would have to be taken against them. The report listed among others, Minister Dow, when she was a high court judge and Judge of the Court of Appeal Gaongalelwe when he too was a high court judge, as beneficiaries of the erroneously paid housing allowance. No disciplinary or criminal action was taken against them. The Audit Report is currently being challenged by Gaongalelwe JA.
Industrial court judges were also found to have received over payment of the housing allowance. Minister Batshu in parliament sought to differentiate the high court judges and industrial court judges. So too did the AoJ in its press release of 19th August 2016. Whatever differences there may have been in the overall structure and reporting authority between high court and industrial court judges what was conspicuously absent from Batshu’s address in parliament and the AoJ’s press release was the legal principle that under law like offences are treated alike. The failure to institute criminal or disciplinary proceedings against the other judges listed in the report was indicative of the unwillingness by the executive to take the overpayment as anything but an administrative error. A point of view clearly illustrated by the president’s willingness to accept repayment by the 4 judges of the erroneously overpaid allowance. The acceptance of the repayment as part of the set of settlement proposals, could only have been done with the recognition that the overpayment did not constitute a crime. Neither the president nor any person matter can in law, legitimise a crime by agreement, as would be the case by the making of the repayment a necessary condition for reinstatement.
Over and above the fact that the president could not be seen to be legitimising a crime, would accept that the 4 judges be reinstated when they have been suspected of a crime without them having been tried by a competent court, unless he was privy to information exonerating them. The president, by uplifting the 4’s suspension has vindicated them in so far as their complaint that the chief justice acted irrationally against them in reporting the matter to the Botswana Police Service when the overpayment of the housing allowance was as a matter of law and fact, an administrative matter.
As part of the set of terms for the settlement the repayment of the housing allowance is consistent with the position adopted by the 4 judges from the onset. It was never in dispute by them that they had been overpaid. While the agreement does not talk specifically to the criminal charge laid by the chief justice on behalf of the JSC to the police, it must implicitly be understood to do so. The president, as he stated in the court case involving Attorney Motumise’s appointment to the high court bench, is privy to information that other organs of the state are not. It is inconceivable that with the resources at his disposal, in the form of the attorney general, the Botswana Police Service and more importantly the Directorate of Intelligence and Security Services (DISS) that the president would lift the judges suspension without having information at his disposal that no criminal offence had been committed.
Whatever the resources and information and advice the president has at his disposal in uplifting the judge’s suspension, he cannot stop the criminal investigation into their conduct. The Director of Public Prosecutions (DPP) retains, under the constitution the sole prerogative, other than in cases of national importance when the attorney general has the prerogative to terminate criminal prosecution. The attorney general has not publically issued such instruction and the president, at least on paper, has no power to direct the DPP to do so. The criminal charges continue, at least theoretically therefore to hang over the 4 judges like the Sword of Damocles.
Irrespective of the president legitimising the judges complaint in respect of the criminal charges levelled against them by making the repayment a condition of their reinstatement, he faces another catch 22. In the event of the BPS withdrawing their investigations without concluding them, then the BPS could only do so having been subjected to administrative interference by the executive. A position the executive has denied doing in the past in respect of Isaac Kgosi, due to its illegality. However, should the police conclude their investigations and exonerate the judges then they would be further vindicated in their complaint against the Chief Justice. Again should the police investigations reveal criminal wrong doing on the part of the 4 judges, then all the judges mentioned in the Final Audit Report would be liable to criminal prosecution and the president, with all the information at his disposal would not only have made a grave error in judgment, further undermining the moral integrity of the court but in making the repayment part of the conditions for the judges reinstatement the president would have acted contrary to public policy.
The ongoing legal challenge to the Final Audit Report by Gaongalelwe JA raises a further complication for the executive. Should the court find against Gaongalelwe and rule that the Final Audit Report is valid then the JSC will be compelled to take action against all the judges referred to in it, as it has with Dingake, Letsididi, Garekwe and Busang. In the event the court finds the report to have been invalid then it will undermine the police investigations in to allegations against the 4 further validating their claim against the chief justice that he acted prematurely.
As yet another element of the set of terms in the agreement the 4 judges are required to withdraw their pending litigation including the review proceedings instituted against the decision to refer them to a tribunal. The president is alive to the fact, or ought to be that no court obliged to accept a withdrawal of proceedings, on any issue let alone one of national importance. An application is required to be placed before court justifying the withdrawal. The court is empowered to reject such withdrawal and on issues of national importance, such as the integrity of the court itself, it may well be inclined to do so. Such litigation and the questions it would raise would only serve to tarnish further the image of the judiciary and the executive, irrespective of the outcome. Once again the imposition of such a term into the settlement agreement presupposes that the court hearing the review proceedings will bend to the will of the president and without inquiry accept the withdrawal of the proceedings. A position which would violate, yet again, on the separation of powers.
All in all, the position of the president was untenable forcing him, as much as the cost of the litigation itself forced the 4 judges, to settle the litigation. The settlement however on such terms as have been set out in the press statement skate on thin ice, threatening to crack and plunge the executive into the murky waters of infringement into the judiciary.
As reported by this publication, in 2015, then Attorney General Athaliah Molokomme sought to intercede and settle the dispute between the president and the 4 judges. The judges then agreed to apologise for any perceptions they may have caused that tarnished the integrity of the judiciary. They further agreed to repay on acceptable terms the overpaid housing allowance. The president refused to withdraw the tribunal and lift their suspension, indicating that the law must take its course and consequently offering the 4 judges nothing in return.  The negotiations failed.
The complete turnaround by the president can only be understood in the context of the current political climate and the current turmoil within the Botswana Democratic Party (BDP) as it prepares to handover of power in its leadership.
According to secret documents leaked to WikiLeaks, in 2005 the United State intelligence concluded that the BDP would take a “shortcut” and rely on the perceived goodwill attached to the Ian Khama’s name despite his “reputed autocratic tendencies”. Relying on the Schlemmer Report of 2004, US intelligence stated that, “The recommendations of the report encourage the BDP to revamp its image among its supporters and the general public by being more responsive to their concerns. Given the effort and sacrifices that this would require, the BDP is likely to take the short cut of hitching the party to Ian Khama’s rising star and campaign primarily on his name and reputation. This will create the ideal conditions to perpetuate his reputed “autocratic tendencies.” If dissatisfaction with his way of running the Party is repressed, it could magnify existing divisions and weaken the party further.”
The history of the BDP since 2005, shows that “the existing divisions” have been “magnified” and the party has been “weakened” for having taken the shortcut by relying on Khama’s “rising star”. The BDP cannot continue to speak about infighting within the opposition without sounding hypocritical.  The president cannot continue speaking and praising Botswana’s free, fair and transparent elections when the public is rejecting with open suspicion the Electronic Voting Machines. The president knows he cannot extol the virtues of his administration as being corruption free when it continues to protect Isaac Kgosi by not placing the evidence gathered against him before the courts to determine his guilt or innocence. The president knows that touting Botswana’s democracy has become nothing more than pandering to the international community when at home his administration clamps down on the media.
Importantly the president knew that on both a national and international platform criticism over the handling of the 4 judge’s suspension and litigation was growing. To continue speaking of an independent judiciary in the wake of the litigation was becoming farcical. In order to reassert his “rising star”, and to regain some integrity for the BDP the current impasse had to be solved. The solutions became limited to one; revert back to the 2015 settlement proposal advanced Molokomme and settle what was growing into a festering political wound. A settlement would save face both for himself and the party.
For Dingake, Letsididi, Garekwe and Busang a settlement would be welcome with legal costs soaring and careers on the line. However unlike Justices Solo and Nyamazabo in their 2015 apology, no allegiance would be pledged to the executive in respect of the former or whimsical rationalisations of “groupthink” in respect of the latter, would be offered.  As shown by the litigation the 4 are fiercely independent and as sitting judges have the ability impact on societal change which they were unable to do when suspended.
James C Scott, a Sterling Professor of Political Science at Yale University, when writing on the weapons of the weak states that the everyday resistance of subalterns (the term subaltern describes segments of a populations which are socially and politically outside of the hegemonic power structure of those in authority) shows that they have not consented to dominance even if not in open conflict.

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