Battle lines are drawn

Yesterday in Lobatse a high profile South African advocate, Sean Rosenburg has labeled President Ian Khama’s suspension of four High Court judges as unconstitutional, unlawful and invalid in that it was taken without the judges first being afforded an opportunity to be heard, and was consequently in breach of the requirements of natural justice and procedural fairness. He said it was taken without prior notice or warning that criticism of or complaints against the Chief Justice could lead to suspension and possible removal as it violates the rule of law. He said the decision to suspend the judges was taken in breach of the constitutional requirement of judicial independence and freedom of expression making it unconstitutional.
“The President’s decision to appoint the Tribunal was unconstitutional, unlawful and invalid because that decision too was taken without affording the judges an opportunity to be heard, in breach of the requirements of natural justice and procedural fairness,” he said.
Rosenburg also argued that the judges have a right to security of tenure as judges, to equal protection of the law and  to freedom of expression. “Each of those rights have been curtailed and continue to be infringed by the President’s decision to refer the judges for investigation by the Tribunal, and to suspend them pending the outcome of the tribunal proceedings particularly without first affording them an opportunity to be heard,” he argued.
Advocate Rosenburg also argued that the judges face ongoing and irreparable reputational and financial harm as a result of their suspension, and the circumstances in which it occurred. He said the integrity of the judiciary and the public’s faith in it has and continues to be undermined.
Rosenburg further argued that the balance of convenience favours the judges. “The judges, litigants and the judiciary as a whole will suffer irreparable harm if the judges are suspended and if it subsequently emerges that the suspensions were unlawful, by contrast, if the suspensions are stayed but the tribunal and suspension decisions are found, in due course to have been validly taken, neither the respondents nor the public will suffer any harm,” said the South African advocate. Rosenburg argued that there is no other alternative remedy available to the judges but to approach the courts for urgent interim relief, followed by a review.
For his part, the state lawyer Advocate Anwar Albertus, another high profile South African lawyer, submitted that the application ought to be dismissed with costs. He argued that the contention that the appointment of the Tribunal is unconstitutional, unlawful and consequently invalid is not an issue before the court. He said the issue will be determined by the review Court in due course. Albertus argued that the President was authorised in terms of section 97(3) of the Constitution of Botswana, to establish the Tribunal. “In this regard, he exercised a constitutional power, whatever the nature of the President’s power, he exercised it in both a substantive and procedurally rational manner,” he said.
Albertus also said as to whether the President’s decision to establish the Tribunal can be said to be procedurally rational, it is significant to note that section 97 of the Constitution does not oblige the President to afford the applicants the opportunity of making representations to him before he takes his decision to appoint a Tribunal. He also argued that the establishment of the Tribunal has not altered the legal position of the applicant to their disadvantage, stating that if anything, the establishment of the Tribunal will afford the applicants an opportunity of defending themselves and disputing the merits of the complaint levelled against them.
“The establishment of the Tribunal was not intended at all by the President to advance any cause of the Executive at the expense of the judiciary, on the contrary, the President’s decision to establish the Tribunal, was intended to protect the integrity and reputation of the judiciary,” he said. He argued that there is accordingly no merit in the contention that the President’s decision to establish the Tribunal infringes the doctrine of the separation of powers.
On the issue of infringing on the right to freedom of expression, Albertus said the applicants overlook the fact that freedom of expression is not an absolute right. “In the instant matter, it is arguable that the conduct of the applicants as manifested in their letter of 12 August and the petition signed by them on 17 August, constitute allegedly defamatory matter,” he said, further arguing that the Chief Justice in his letter to them of 21st August advised the applicants that he was contemplating a defamation suit against them.
The four suspended High Court judges; Justice Key Dingake, Justice Modiri Letsididi, Justice Mercy Garekwe and Justice Ranier Busang will know next week whether their suspension will be lifted after Lobatse High Court judge, Justice Tebogo Tau set the 6th of October as the date she will deliver judgement.
The four have been referred for investigation by a tribunal set up by President Khama to determine whether they have engaged in misbehavior that warrants their removal from office. The judges are alleged to have potentially undermined the authority of Chief Justice Maruping Dibotelo. They are also alleged to have acted in a manner that was damaging to the judiciary, in that they were the inadvertent recipients of housing allowances that were not due; they addressed a letter to the Chief Justice criticizing his conduct against them; and signed a petition addressed to the Judicial Service Commission seeking the Chief Justice’s impeachment.
Pertinently, for the present proceedings, the President has also determined to suspend the judges from judicial office, pending the outcome of the Tribunal’s investigation. Their suspension entails a reduction in their benefits: although they continue to receive their emoluments and to occupy government housing, they are not entitled to the use of their official vehicles.
According to court documents, the judges deny that they have committed any misconduct or that the allegations against them warrant the appointment of a tribunal to investigate their conduct. On the 9th of September, the judges brought an urgent application to review and set aside; The decision of the President to appoint a tribunal to investigate the applicants’ potential removal from judicial office; and the decision of the President to suspend the applicants’ pending the outcome of the tribunal’s investigation.
However, notice of the application was sent to the respondents on the 4th of September. The application was thus instituted before the expiry of the 30 day notice period prescribed by the State Proceedings Act. According to the applicant’s papers, in order to avoid any dispute in this regard, the judges amended their notice of motion to seek urgent interim relief only. Relief for the review and setting aside the tribunal decision will be sought once the notice period has expired.
As a consequence, the application seeks only urgent interim relief pending the determination of the review proceedings to be launched by the judges or any appeal that may arise thereafter. In particular, this application seeks to stay further suspension of the judges pending the determination of the review.