Three judges to review application by suspended judges
Oarabile Mosikare | Friday January 8, 2016 15:31
Justices Zibani Makhwade and Leatile Dambe will join Walia to complete the bench. There is no set date for argument of the case at the moment. The case is stuck because the suspended quartet contended that the case record from the Attorney General is not complete. The suspended judges; Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang have filed the review application to interdict the sitting of the Tribunal.
They also want their suspensions by President Ian Khama set aside. The four, in their founding affidavits, have stated that the President’s decision to suspend them and appoint the tribunal to investigate their conduct was unconstitutional, unlawful and invalid.
They said the decisions were taken without prior notice or warning that criticism of or complaints against the Chief Justice Maruping Dibotelo and failure to notice an administrative overpayment, could lead to suspension and possible removal. It therefore violates the rule of law.
The judges have been at loggerheads with Dibotelo, who had reported them to the Botswana Police Service to investigate them for earning housing allowances despite being accommodated in government houses. “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. It is consequently unconstitutional,” said Dingake in his founding affidavit.
“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,” said Dingake. In his answering affidavit, Khama said the decision to suspend the four judges from the office of the High Court is constitutional and therefore not reversible. The President said the four judges are under the impression that his decision can be reviewed.
“I am advised and believe that the applicants’ application as it stands is misconceived in so far as it is based on the enormous assumption that my decision is reviewable. To the contrary, the applicants have not demonstrated the existence of the sound prospects for my decision being set aside at the envisaged review,” said Khama.
The President explained that the advice he was given regarding the suspension of the four judges was that it was not susceptible to review by the court and that if the court finds that it is indeed reviewable, that he used his discretion to suspend the applicants. “I have a discretion under the constitution to suspend the applicants pending finalisation of the investigations to be carried out by the Tribunal which I have set up in terms of the provisions of the constitution. As far as the discretion in me is concerned, I submit that I exercised that discretion duly, properly and lawfully therefore the courts should dismiss the application.”