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The case of 4 Judges

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On Thursday, the High Court will hear the landmark case in which four judges are challenging their suspension.
This case holds implications for President Khamas political influence over the independence of the High Court, the Electoral Commission (IEC) and the Delimitation Commission, all of which fall under the oversight of the judiciary.

The case in which the foursuspended Judges are challenging their suspension and the power of the Executive to suspend them resumes this week on the 31st March.
The historic case which relates more to the political control of Botswana than the four suspended judges themselves will be a watershed moment for Botswanas democracy. The political shape of Botswana is not being determined at the election booth but in the Court, and not by any of the political parties but between Judges and the Executive.
The case of the four suspended Judges, the Chief Justice, the Judicial Service Commission and the Executive has implication that go to the very reason that Botswana has received high accolades in the past as a thriving democracy: an Independent Judiciary.
The suspended Judges case concerns principle, not only to defend their right to be critical of The Chief Justice (free speech) but a far greater principle that concerns the nation as a whole, the principle to fight to defend the very essence of what makes Botswana a proud nation: it is a fight to defend, in the words of Seretse Khama, Democracy. Democracy, like a little plant, does not grow or develop on its own. If must be nursed and nurtured if it is to grow and flourish. It must be believed in and practiced if it is to be appreciated. And it must be fought for and defended if it is to survive.
The broader political issues that underplay the litigation and the potential national consequences of the litigation cannot be overlooked. Regardless of the underlying causes of the litigation, what is evident from the papers filed in Court is that this litigation will define the independence of the Judiciary and its ability to have oversight of the Executive and other organs of the State.
The President in the past has lauded the independence of Botswanas judiciary, marking it as the cornerstone of the international perception of Botswanas democracy. As recently as 21st June 2015 the President remarked that an independent judiciary is what sets Botswana apart as a democracy. That an independent judiciary is what makes other countries look to Botswana for guidance and hope in this regard. Stating at the Judicial Conference in 2015 that: As you are aware, international institutions rate Botswana governance very high and the independence of the Judiciary is a yardstick used to measure our performance. As a nation, we pride ourselves with the independence of our Judiciary. Before I conclude my remarks, let me remind you that Governments perception on our national civilization is premised on human liberty and freedom, which will fall squarely under the protection of the Judiciary. Our Judiciary, therefore, is a reflection of our democracy and rule of law. In a nutshell, our nation expects a judicious legal system. Put differently, our democratic, rule of law based system resonates well with the legal system of all legal systems, the kind of legal system that every other legal system wishes to be!
The challenge by the four judges, Dingake, Letsididi, Garekwe and Busang against their suspension and Executive censure, seeks to ensure that the very ideals alluded to by the President are of real substance and not mere empty rhetoric pandering to both a local and international audiences.
The suspension of the Judges and their possible removal from the Judiciary has become a political battle for the survival of an independent judiciary. The Attorney General, having successfully argued for, and as a result having given the Executive the power to appoint judges of his own choosing in the Motumise case, is now advancing argument that the Executive has the power to remove judges, ostensibly for complaining to a lawful authority the Judicial Service Commission, on the conduct of the Chief Justice.
One only needs to ask themselves if this position accords with the notions of a democratic state, does it accord with those notions that other countries wish emulate and to aspire to in an independent judiciary. The answer to these questions, both from a legal and democratic perspective will be at the forefront of any determination by the Court and will be canvassed in a series of articles by this publication.
The current litigation is based on the four Judges complaints against the Chief Justices conduct and the Executive intervention on behalf of the Chief Justice. The overpayment of the Housing Allowance which did not form part of the Judges suspension has ceased to be of import. As confirmed by Minister of Home Affairs Hon. Edwin Batshu in parliament this week, the overpayment of housing allowance to other Judges (albeit of the Industrial Court) Marumo J, Baruti J and Diwanga J, was settled amicably via administrative procedures between government and the respective judges.
As reflected in the court papers, this case will define the Executive power and control over the judiciary in removing judges and therefore the independence of the judiciary, just as the Motumise case defined Executive powers to appoint judges and consequently the independence of the judiciary in that regard.
THE HISTORY MAKERS
The Attorney General Dr Molokomme
Representing the Executive is the Attorney General. Dr. A. Molokomme. A once strong advocate of human rights and co-founder of Emang Basadi. Dr. Molokomme has shifted to a conservative role in government diverting from the human rights ideals she held earlier in her career.
Her position as Attorney General has become symbolised by her unwavering support for the positions adopted by the Executive in his vision of the rule of law and the democratic principles that the President seeks to accredit to Botswana.
Her shift from a human rights advocate to conservative protector of the Executive is reflected in particular by crucial human rights and rule of law cases that have come before the courts since her appointment as AG.
The Attorney General is an academic at heart, a public speaker of note resulting in her previous position on Human Rights and the rule of law being internationally and widely known. In 1989 Molokomme, in criticising the then government argued that Botswanas State machinery often takes advantages of loopholes in the Constitution to deprive citizens of their basic human rights.
Her PHD thesis Children of the Fence advocates for equal rights for woman and children under customary law. The thesis concerned laws regulating compensation for extramarital pregnancy and maintenance of extramarital children in Botswana. Molokomme analysed the need to review customary, Roman-Dutch and statutory laws relating to extramarital pregnancy and interplay between the laws, recommending changes in the law which remain to date relevant to the social reality and day-to-day lives. Molokomme advanced the position that customary law segregates against women with children born out of wedlock and the consequent denial of the right of maintenance and inheritance. In the thesis she posits that the appropriate case had not yet come before the Court in Botswana and that as such the issue was still to be determined.
In Mmusi and others vs Ramatele and Another, the Attorney General was asked to assist the Court to determine the very issues under consideration in Children of the Fence. When the case was heard, The Attorney General argued that the denial of inheritance under customary law to a woman and children was NOT unconstitutional and that Botswana being a culturally inclined nation, the time has not come, to consign the impugned Ngwaketse Customary law to the dustbin of history.

AForum Molokhomme advocated for gender and sex equality. In the LEGABIBO case recently determined by the Court of Appeal, the Attorney General argued against the recognition of a gay and lesbian rights organisation.
As a lecturer Molokomme critically advanced notions of independence of the Judiciary and the respect for the rule of law. An ardent supporter of the Unity Dow Judgment, Molokomme in numerous papers, presentations and lectures praised the Court of Appeal for stating that Botswana must not be immune to progressive legal developments in neighbouring countries and internationally. Her position was that such judgments could only advance the growth of Botswanas Jurisprudence and adherence to human rights, rule of law and internationally recognised democratic principles.
Her recent positions in support of the Executive and the current governments policies appears to be diametrically opposed to the ideals that gave her international respect.
The Attorney General has used a loophole in the Constitution to give the Executive power to appoint judges, it will remain to be seem if the attempt to use another loophole in the Constitution will give the Executive the power to remove judges.
The Executive- President Khama
A steadfast traditionalist, who whilst publically proclaiming adherence to the rule of law and democratic principles, has increasingly consolidated power in the Executive. To his credit he has repeatedly stated that he would not stand for a 3rd term in office, even in the event of a constitutional amendment for direct election of the Presidency allowing him to do so.
On assuming office in 2008 the Executive called a meeting with the late Chief Justice, Julian Nganunu advising him of his vision for Botswana and his desire to be supported in the vision by the Judiciary. The late Chief Justice concerned about the tone and content of the meeting immediately called for an emergency meeting with the Judges of the High Court. Advising them of the need to ensure judicial independence and his concern that under the current executive this independence would be compromised at the first opportunity.
The consolidation of power by the Executive is reflected not only in moving DCEC, Ombudsman, DISS and PEEPA to the office of the President, but further manifests itself in the arguments advanced in court in other matters, that are contrary to internationally accepted norms of a democratic state. In the case of the late Motswaledi who sought to challenge the Presidents power under the BDP constitution the Executive argued that the Constitutional protections that availed to him in the fulfilment of his State functions extended to him in his party functions. The Court of Appeal accepted the argument in a controversial judgement, condemned by Human Rights lawyers nationally and internationally.
The Executive further sought to control parliamentary process and move away from a fully independent parliament. The lehanza case, advanced by the Attorney General on behalf of the BDP, signified a crucial point in the relationship between the Attorney General and the Executive. The position adopted in lehanza by the Executive and the Attorney General was rejected by both the High Court and the Court of Appeal.
The Chief Justice- Dibotelo
It is often overlooked that the Chief Justice is a litigant in this matter. Unusually opting to be represented and associating himself with the position adopted by the Executive and using the Government Attorney in conjunction with the Executive.
A known traditionalist, often stating in open court of his desire not to be delayed by attorneys on a Friday as he would much rather be at the cattle post than in court, the Chief Justice is a legal conservative avoiding as much as possible relying on foreign judgements. He has a strong belief in the localisation of both the Bench and the Bar, with an open reluctance to admit foreign advocates and place reliance on judgments of progressive jurisdictions.

The Chief Justice has litigated against the Judiciary and the Administration of Justice before. In 2003-2004 Dibotelo sued then Chief Justice Julian Nganunu over governments decision to grant him a pension instead of gratuity. The case that was ultimately settled with Dibotelo being paid P250, 000 (two hundred and fifty thousand Pula).
The then Chief Justice Nganunu recognising the importance of the appearance of impartiality in litigation between himself and a fellow judge sought a special dispensation to have a foreign judge appointed to preside of the case.
The four suspended judges have requested, in the current challenge as well as the challenge to their suspension, that the Registrar of the High Court obtain a similar dispensation to appoint a panel of foreign judges to hear their case. These requests have been rejected.
In addressing a Chief Justices Forum conference on judicial independence, at Victoria Falls in 2015, Dibotelo advised those present that he was in an invidious position in discussing this topic because of the Motumise case where Recently I set up a panel of three Judges of the High Court to preside over a case filed by the LSB, wherein it is suing President Khama and the JSC, of which I am chairman.
The precedent set by the late Nganunu that in litigation affecting the rights of all judges within the jurisdiction, especially those that involve the Chief Justice ought to best to be determined by appointing a wholly independent panel of foreign judges to determine issues has been ignored.
The closeness in the relationship between the Chief Justice and Justice Walia, who has been appointed to preside of this matter is well known within the inner circles of the Judiciary. Walia is routinely appointed to act as Chief Justice during the Court vacations in the absence of Dibotelo.
Walia J
The most senior judge of the panel appointed by the Chief Justice to determine Executive powers, Walia is a close confidante of the Chief Justice. A naturalised Motswana whose family has considerable business ties in Botswana.
Persons close to Walia J and those that know him say he has no regard for recent jurisprudence emanating from the Court of Appeal as he considers recent Judgements fearful of the Executive, making him not to read them and instead throw them way.
The legal profession knows him from an entirely different perspective, a conservative Judge who is not inclined to advance jurisprudential issues in his judgements. His lack of a human rights background and his commercial background whilst in private practice make the constitutional entanglements that are currently before him largely unknown jurisprudential territory for him.
Walia is best known for his conservative judgements on issues of Human Rights and politically sensitive issues.
In 2002, the Government sealed a borehole in the CKGR in an effort to force the, First People of the CKGR out of the area. When government refused to reopen the borehole on the grounds that it did not need to reinstate basic services. The First People of the CKGR sued to be either allowed to drill a new borehole and that the existing borehole be reopened. Walia held that the San have become victims of their own decision to settle an inconveniently long distance from the services and facilities provided by the government, and dismissed the case. A full bench of the Court of Appeal subsequently overturned his decision.
Makwade J
Not much is known of Makwade. The legal profession allude to his astuteness and brilliance whilst a practising attorney. No Judgement of his has definitively defined him and his jurisprudential inclinations. All views concerning him however reflect a person of immense integrity with a high regard for the rule of law. A devout Christian who has publicly indicated his desire to retire and answer Gods call, the immensity of the case before him will not be lost, nor the implications for the future of the Judiciary in Botswana. As he looks back at his career as both an attorney and a Judge the moment of this case will weigh heavily upon him.
Dambe J,
The former Director of Public Prosecution is the most junior of the three judges hearing the matter. She is seen largely as a pro-establishment judge, her track record belies this perception.
As the Director of Public Prosecution, Dambe ardently and successfully fought for the DPP to become independent of the Attorney General. Her belief in the independence of the DPP is legendary, her fight through the channels of power and against the wishes of the Executive for the creation of Section 51 A of the Constitution marks her as a strong advocate against the increase of Executive powers.
That the Attorney General, in arguing against The Botswana Gazette advanced the position that the DPP is NOT independent but falls under her office is certainly a factor that will weigh heavily on a judge that dedicated so much to curtail Executive intervention in prosecutorial prerogatives.
Whilst Dambe J is seen as largely a black and white judge in determining issues, in that she would follow the letter of the law and not progressive constitutional arguments, the import of this matter will not be lost on her.
Her legacy of an independent DPP undermined, she will have to determine now whether the Executive has oversight of judges and their removal from office.
WHAT IS AT STAKE AND WHAT ARE THE ISSUES
will be covered in next weeks edition.
As an introduction to part 2 of this article The Botswana Gazette will address issues that apart from the obvious requirement of impartiality that pertains to judges; the judiciary has two additional key political positions. Judges chair the Delimitation Commission; a vital and pivotal democratic institution that establishes constituencies in the national elections. The undue influence over the appointment of Judges by the Executive has the potential to impact on the national political scale and; The Independent Electoral Commission (IEC) established in 1997 which consists of seven members, a Judge of the High Court who must be the chairperson and another member who must be a legal practitioner, appointed by the by the Judicial Service Commission (JSC), equally having the potential to impact on the national political scene.

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