Khama muzzles the Judiciary
On the 27 August 2015, three Judges of the High Court based in Lobatse; Justice Modiri Letsididi, Justice Mercy Garekwe and Justice Ranier Busang were served a letter signed by President Ian Khama, suspending them from their functions as judges. The letters were delivered by the Registrar of the High Court, Michael Motlhabi.
The following day, Gaborone based Judge; Justice Key Dingake was also served with a similar letter.
The four judges commence their suspension on September 01, and they will await the convening of a Special Tribunal to be concluded as to their alleged “misbehaviour”. The Tribunal whose terms of reference are yet unknown comprises of Justice Lesetedi, Judge of the Court of Appeal, Justice Foxcoft, Judge of the Court of Appeal and Justice Howie, a former Court of Appeal Judge.
Khama’s move to suspend the four Judges is not based on allegations that the Judges had been referred to the Botswana Police Service for investigations regarding their housing allowance.
The action by the President to suspend the four Judges is instead based on the fact that the four judges expressed their concern to the Judicial Service Commission (JSC) as to the fitness of the Honourable Chief Justice Dibotelo to retain office, information gathered by this publication has revealed.
The four Judges’ objections to the Chief Justice stem from the recently concluded annual Judicial Conference held in Mahalapye. The judicial conference, which was opened by President Khama, was held under the theme; “A well-resourced Judiciary is fundamental to the expeditious delivery of quality justice”.
Officially opening the two-day judicial conference in Mahalapye on Thursday July 30, President Khama underpinned the pivotal role the judiciary has played in the development of the country and stated that:
“I am informed that the purpose of this annual conference is to afford the judiciary a platform to introspect, obtain feedback and further explore methods to improve and deliver the best service to the citizens and residents of this country. There is always wisdom in conducting some self-introspection and emerging with solutions to address concerns, be they from within, from stakeholders or from the public whom we are there to serve. In essence, this gathering should be seen as an opportunity for the Judiciary to review its practices and procedures if need be.”
The President emphasised that his Government would ensure that in adherence to the theme of the judicial conference, the judiciary would be availed the resources it required so long as Government was advised of the needs of the judiciary. During discussions, the judges emphasised the need for additional training not only to stay abreast with international trends but in complex related issues such as information technology.
The request for additional training, The Botswana Gazette has learnt, is one of the reasons the tensions flared in the judicial circle by sparking the ire of the Chief Justice (CJ) who stated that government funding for the judiciary ought not to be “wasted” on additional training, as in his view judges were supposed to be trained attorneys with no less than ten years’ experience.
According to documents seen by this publication, the CJ allegedly expressed his opposition to additional training outside the confines of the judicial conference pronouncing at the dining area that he was aware that judges wanted training to supplant him as CJ but that he would ensure that some would never become CJ. The CJ purportedly went further to add that he was aware that various judges had abused their housing allowance and promptly instructed the Registrar, Motlhabi to avail him and the JSC a list of names of Judges who had received the housing allowance within the week.
This list, which contained more than the currently named four judges, is what has caused the current judicial crisis.
Efforts to contact the CJ were futile at the time of going to print as he was said to be unavailable.
The Public Finance and Administration Act provides that the responsibility for erroneously paid allowances falls to the paying officer, which is currently Mr. Motlhabi, and previously, the then registrar and now judge of the High Court, Justice Nthomiwa.
The payment of the housing allowance provided to the judges needs to be put in context of such allowances.
Investigations by this publication revealed that the CJ resided in the house allocated to Justice Garekwe for an extensive period, which period includes months in which it is claimed that Justice Garekwe received an allowance that she was not entitled to. Other judges are in similar positions where they are now being made to account for allowances given to them when they had been allocated houses but the houses were either not available or not fit for occupation as water and electricity had not been connected in Lobatse.
Emerging information reveals that there are other judges not limited to three judges of the Industrial Court who have also received housing allowance whilst having been allocated government housing and no action has been taken against them.
Investigations reveal that subsequent to the time when the JSC reported Dingake, Garekwe, Letsididi and Busang to the Police, the judges were given the housing allowance for the month of August 2015 by the paying officer. The ongoing erroneous payment by the paying officer puts into perspective the complaint by the judges which give rise to their suspension.
By mid- August, twelve Judges jointly expressed by way of a letter to the JSC, their dissatisfaction with the manner in which the CJ had handled the maladministration of the housing allowance.
Their views, their right to freedom of expression, a right so jealously guarded by the judges themselves was met with the uncompromising failure to introspect and in the words of the President there was a total lack of “wisdom in conducting some self-introspection and emerging with solutions to address concerns.”
That a citizen of Botswana let alone a Judge has a right to challenge and query the conduct of his superior is enshrined not only in the constitution but further in terms of the Employment Act.
The failure and lack of wisdom in conducting some self-introspection culminated in the President’s suspension of the Judges on grounds that it had been brought to his attention that the correspondence to the JSC by the four judges and the letter signed by the 12 judges which he regarded as being prima facie undermining the authority of the CJ and as being divisive, violates against the most basic tenet of freedom of expression.
The ensuing crisis in the Judiciary and the purported divisiveness has not arisen as a result of the Judges’ joint but private communiqué with the JSC but rather from the overly heavy handedness and public response by the Executive, this publication has learnt.
Efforts to get a comment and a response to various written questions from the registrar proved futile at the time of going to print as his subordinates indicated that he was unavailable.