We deserve a fair hearing - Judges
Mpho Mokwape | Tuesday September 29, 2015 11:20
They argue that natural justice equates to procedural fairness.
Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang said the decision for their suspension was hastily done because of their complaints against Chief Justice Maruping Dibotelo.
Through their attorney, Sean Rosenberg, the judges submitted yesterday that the decision to suspend them without a hearing was in breach of the constitutional requirement of judicial independence and the freedom of expression.
Rosenberg said the decision taken by President Ian Khama to suspend the judges without warning or engaging with them denied them the full protection of the law.
“The requirement of natural justice demands that a person affected by the decision of this potential magnitude be afforded an opportunity to be heard before a decision is taken. Hearing provides the President with the information that he requires in order to determine whether suspension is appropriate. Unless he affords the judges a chance to put their version of events, the decision to suspend is incomplete and one-sided,” he said.
He argued the judicial code of conduct recognised the importance of hearing a judicial officer in disciplinary proceedings, therefore the failure to afford the judges a hearing renders the decision to suspend unlawful, unconstitutional and invalid.
“The rule of law requires that the judge can only be suspended or removed for conduct that has been identified as impeachable misbehaviour in advance,” he said. On the setting of the tribunal, Rosenberg said the President’s decision to appoint the tribunal was unconstitutional because the decision too was taken without affording the judges an opportunity to be heard. The state, however, said the judges’ remedy lied in attending the inquiry of the tribunal and lead the evidence or make representations there. State counsel, Anwar Albertus said the judges will have to face the tribunal and explain why their conduct does not constitute misbehaviour as contemplated in the constitution.
He argued that the conduct of the judges could not constitute a hearing because the way they addressed Dibotelo was a matter of grave concern as decided by the President.
“The President appropriately invoked his powers under the constitution. In these circumstances they did not have the right to be heard prior to the President’s decision to suspend them or to constitute a Tribunal,” Albertus said.