Khama a threat to democracy � judges

Mpho Mokwape | Tuesday September 29, 2015 18:00

 

Through yesterday’s urgent application, the judges called for their suspension and the establishment of the tribunal stayed pending the determination of review.

Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang submitted before the Lobatse High Court yesterday that the matter be dealt with swiftly, as it has eroded public confidence in the judiciary.

Their contention is that the President’s decision to suspend them and appoint the tribunal to investigate them for misbehaviour was unconstitutional, unlawful and invalid.

Their attorney, Sean Rosenberg, submitted that the judges’ suspension meant that the President has been allowed to interfere in the composition and functioning of the judiciary.

Said Rosenberg: “He has done so on flimsy grounds and pursuant to a manifestly unfair process.  For as long as the judges remain suspended, the separation of powers and the independence of the judiciary are prejudiced.  The President’s power to suspend the judges created a risk of executive interference in the composition and functioning of the judiciary and therefore it is open to abuse”.

Rosenberg argued that the improper decision to suspend the judges violated the judicial independence and the separation of powers, and that it was unconstitutional. 

He said the suspension had a material impact on the proper functioning of the courts and those members of the public and litigants whose matters are before courts have been prejudiced.

Rosenberg said: “Each of the judges has a minimum of 300 active files and this translates to 1,200 files that will need to be managed or reallocated”.

On the credibility of the judges, Rosenberg submitted that the suspension has eroded their credibility as judges both in the eyes of the public and members of the judiciary.  He said that has cast doubt on their integrity.

He explained that the fact that they are suspended created the impression that the charges against them were of substance ultimately creating the perception that the judges were guilty and corrupt.

“This reputational harm is irreparable, even if the judges are ultimately vindicated and the allegations withdrawn.  The suspension will have created suspicion against them that cannot be erased,” said Rosenberg.

Countering the judges’ arguments, state counsel, Anwar Albertus said the independence of the judiciary could not suffer any harm because of the suspension, as the President was only concerned about the courts’ reputation in upholding the law.

Albertus argued that the judiciary was the one likely to suffer prejudice if the judges were allowed to continue in their official capacities in the face of such serious allegations.

He said the judges’ contention of reputational damage as a result of their suspension is misplaced.

“The judges are in no different position than any other employee.  As judges, they are not above the law, but equally amenable before the law and they cannot claim to have greater rights than ordinary citizens,” said Albertus.

Presiding judge, Tebogo Tau will give his ruling on the matter on October 6, 2015.