Madness at the judiciary: What can Parliament do?

Dithapelo Keorapetse | Friday September 11, 2015 14:51

The suspended judges, namely Key Dingake, Mercy Garekwe, Ranier Busang and Modiri Letsididi are effectively accused of instigating a rebellion. The issue started with an alleged accusations on the Judges by the Chief Justice that the judges are receiving housing allowances whiles being housed in official residences, something he allegedly found criminal and reported to the police. Judges apparently responded by a counter accusation of defamation and criminal defamation against their ‘boss’. Most of us may not know the whole story of the politics of the judiciary, we can only deal with what we see and infer that there is a problem.

The judiciary in Botswana is not new to controversy.  There are instances where clearly the many have questioned its integrity, impartiality and lost confidence in the organ. Many Batswana are highly suspicious of the courts because of the system of appointment of judges. The Chief Justice and the Judge President, the administrative head and the head of the superior court of record respectively, are appointed by the President and it is not provided for that in appointing them he must act in accordance with the advice of the Judicial Service Commission (JSC). Many people think these two officers on many occasions serve the interests of the appointing authority, sometimes in a manner that brings the institution's impartiality and integrity into question. Other judges are appointed by the president acting in accordance with the advice of the JSC. Industrial Court Judges are not appointed on the advice of the JSC notwithstanding the court's equal standing with the High Court.

The composition of the JSC is a problem; it has been packed with five strong presidential appointees and the authoritarian nature of the current administration has made things worse. Members of the JSC and the Chief Justice and the Judge President should get the message that they are not trusted by many Batswana because of how they were appointed and in some cases how they conduct themselves.

In the past, Justice Moatlhodi Marumo controversially left the bench after a rule nisi he issued blocking the deportation of Professor Kenneth Good. The case was given to another judge on the return date. He subsequently threatened to sue the state over his resignation which pundits saw a constructive dismissal of some sort.

In the Gomolemo Motswaledi case, many believe that Justice Key Dingake was prevented from singularly hearing the case or to be part of the three judges who presided over the case. In this way, many thought, the outcome had been predetermined. Justice Onkemetse Tshosa was also constructively dismissed by Khama after he faced some weak charges which were dismissed by the court.

Since he ascended to office, President Ian Khama has made controversial appointments to the bench, both at the labour courts, High Court and Court of Appeal. In the recent past, Khama refused the recommendations for judgeship by the JSC of Gabriel Komboni, Gabriel Rwelengera and Lizo Ngcongco. We are yet to be told why the trio were not appointed. The president would subsequently refuse to appoint Omphemetse Motumise  a judge after JSC recommendation. The matter of Motumise is sub judice.

Not so long ago, the Chief Justice accused some judges of what he called forum shopping and fell short of saying these judges are corrupt. The controversy that ensued afterwards is well documented and brought the institution into disrepute.

Parliament should at its next session emphasize that an important requirement for sustaining public confidence and integrity of the judicature is upholding the reputation of judges and a judicious, impartial and perspicacity of the Chief Justice. 

MPs should debate on whether the Chief Justice and the President acted in a manner that protects the integrity of the judiciary in reporting the four judges to the police and suspending them respectively. Parliament should assess if the Chief Justice can be personally culpable for bringing the judiciary into disrepute and or denting public confidence in the organ through his previous and current action and whether he's fit to hold office.

Whilst the President has the powers to appoint, suspend and dismiss judges, these provisions of the law are undemocratic because they go against precepts of constitutionalism, separation of powers and the rule of law and Parliament has to accordingly review the process.

President Ian Khama has no regard for the institution of the judiciary; he has refused judicial reforms proposed by political parties, Members of Parliament, Laws Society of Botswana, judges and academics inter alia. He has refused to appoint four esteemed persons recommended to be called to the bench by the JSC and he has constructively dismissed a judge before. His motives for the suspension of the four judges are suspicious.