Judges interdict Khama�s tribunal
Oarabile Mosikare | Thursday September 10, 2015 18:00
The four, Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang, state in the application that the President’s decision to suspend them and appoint the tribunal to investigate them for misbehaviour was unconstitutional, unlawful and invalid.
Chibanda Makgalemele and Company attorneys represent the suspended judges in the case set for September 17, before Justice Tebogo Tau at the Gaborone High Court.
The judges’ action followed Khama’s appointment of the tribunal, chaired by a retired South African Supreme Court of Appeal judge Justice Craig Howie, to investigate the conduct of the four judges.
The judges had been at loggerheads with the Chief Justice Maruping Dibotelo, who had reported them to the Botswana Police Service, to investigate them for earning housing allowances despite being accommodated in government houses. The judges hit back by threatening to institute legal suit against Dibotelo.
In the founding affidavit before the court, Justice Dingake stated that the decisions were taken without first affording them an opportunity to be heard, and consequently, was in breach of the requirements of natural justice and procedural fairness.
Furthermore, Dingake said the decisions were taken without prior notice or warning that criticism of or complaints against the CJ, and failure to notice an administrative overpayment, could lead to suspension and possible removal. It therefore violates the rule of law.
“In addition, the decision to suspend is unconstitutional, unlawful and invalid because it was taken in breach of the constitutional protections of judicial independence and freedom of expression. He continued: “For completeness, the applicants aver that the grounds on which we have been referred for investigation do not warrant impeachment.
At most, we ought to have been referred to the Ethics Committee constituted under the Judicial Code of Conduct for investigation. A decision to remove us on those grounds would be to sanction irrational differential treatment (since High Court judges have also erroneously received the housing benefit while occupying government housing) and to unconstitutionally limit our rights to freedom of expression”.
Dingake said that the other judges, who also received the allowance, even if they paid back, have not been sanctioned in any way. The damage to the judiciary, arising from the matter that ought to have been resolved administratively was not factored in, he argued.
He said the quartet were of the view that the actions to appoint the tribunal to investigate them and have them suspended, were in breach of the requirements of section 3 (a) and 97 of the Constitution. “Those decisions should be set aside on this basis alone,” he said.
In addition, Dingake said no reason was advanced for the reduction in their benefits. He said it was not clear how the reduction in their benefits served to protect the integrity of the Judiciary or its ability to perform its functions.
“We therefore aver that the decision to suspend us – and to do so on reduced benefits – is made for purposes not authorised by section 97 of the Constitution, violates the proper separation of powers, undermines judicial independence and infringes our rights to freedom of expression. It is consequently unconstitutional and invalid.”
The judges, therefore, are seeking an urgent order declaring Khama’s decisions to appoint the tribunal and to suspend the applicants unconstitutional and invalid. They also seek costs of the application, including the costs of the two counsels.
* An in-depth report will be in tomorrow’s (Friday) edition of Mmegi.