Judges weigh options after Khama�s triumph
Oarabile Mosikare | Wednesday October 7, 2015 18:00
Tau of the Lobatse High Court on Tuesday ruled against the four judges in a matter in which they were challenging their suspension and Khama’s decision to set up the tribunal.
A legal expert close to the developments said the four judges were studying the judgement and would make a decision soon.
“They are reading the judgement and will consult their counsel. It would be unfair to expect them to have made an informed decision already, but they are studying the judgement,” the expert said.
Tau ruled that Khama acted in accordance with the provisions of the Constitution and did not interfere with judicial independence.
“My findings on the issue of notice are that the President notified the applicants of his intention to appoint a tribunal to inquire into their behaviour and to suspend them through the letter of the 26th August 2015.
As the letter and the petition, which would be the subject matter of the inquiry by the tribunal emanated from the applicants, the notice is arguably sufficient. In addition the process in motion is still at a preliminary stage. The applicants would still have adequate chance to deal with the complaints,” Tau said.
The four judges: Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang, contended that both the decision to suspend them and establish a tribunal was unconstitutional, violated the tenet of judicial independence and violated the rule of law. They also argued that the move violated their rights to equal protection of the law. However, Tau overturned the arguments: “With regard to the constitutionality principle of judicial independence, the determination of this case turns on the interpretation of Section 97 of the Constitution against the background of the constitutional imperatives of the rule of law, the separation of powers and judicial independence.
“The principle of the separation of powers emanates from the wording and structure of the Constitution. The Constitution delineates between the three organs of the state, being the legislature, executive and the judiciary. Courts have recognised this fundamental premise as being separation of powers with checks and balances to ensure accountability, responsiveness and openness.”
Tau also said judicial independence is crucial to the courts for the fulfillment of their constitutional role. She said what was important is that the judiciary shall function independently from the legislature and executive. Because the judiciary plays a pivotal role in enforcement of the supreme law of the land, Tau said judges occupy a special position in society, which is recognised by the Constitution.
“A judge remains a judge until he or she resigns or retires or is removed from office in accordance with the provisions of Section 97. The tribunal appointed by the President to investigate the question of a judge’s removal from office consists of former judges and it is significant that their recommendation is binding on the President.”
She said her view was that the intention of the framers of the Constitution was for the President to refer the allegations to the tribunal to investigate and to advise him accordingly.
“Based on the foregoing conclusions, I am of the view that the applicants failed to satisfy the first requisite for the grant of an interim interdict by demonstrating that they had a clear right or at least a prima facie right to a hearing prior to a suspension pending an inquiry by the tribunal into allegations of misbehaviour. The application is therefore dismissed with costs, including costs of two counsel,” ruled Tau.
The judgement comes after weeks of tensions in the judiciary sparked after the Chief Justice allegedly set police on the four judges, in relation to the improper earning of housing allowances.
The case has spilt lurid accusations of tribalism, theft, racism and even witchcraft into the public arena.