Law Society joins judges against Khama
Oarabile Mosikare | Friday February 5, 2016 18:00
A bench of three judges led by Justice Sigh Walia has been appointed to review an application filed by the four suspended judges, who want the court to interdict the sitting of the tribunal and set aside suspension by President Ian Khama.
Last year, Khama suspended judges Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang for alleged misconduct against the Chief Justice, Maruping Dibotelo.
In his founding affidavit, the LSB executive secretary Tebogo Moipolai said reading of the papers show that the matter raises fundamental public law issues. These issues include the reviewability of executive decisions, the separation of powers, the independence of the judiciary, constitutional interpretation, the rules of natural justice and freedom of expression. Stating reasons to join the application Moipolai said: “The applicant as the professional body that represents legal practitioners from whom judges are appointed, and whose members represent litigants on a daily basis before the courts, has substantial interest in any matter that directly affects and concerns the independence and integrity of the judiciary.
“The applicant seeks to be admitted as amicus curiae so that it may draw the court’s attention to matters of law and fact which the court may otherwise not draw its attention.”
The applicant if admitted as amicus curiae intends to submit that the executive has a duty to refrain from any acts or omissions that needlessly undermine public confidence in the judiciary. He said the suspension of a judge from duty no matter how temporary weakens the confidence of the public in the suspended judge.
“A judge’s ability to effectively discharge his duties is dependant on the confidence that the public has in him/her. A lack of public confidence in a judge greatly erodes his ability to hold judicial office and to dispense justice. It is for these reasons that the Law Society of Botswana is of the respectful view that the suspension of a judge, unlike that of a public officer employed under the Public Service Act, attracts the audi rule and should not be lightly undertaken”.
He said the suspensions were in response to a petition presented to the Judicial Service Commission (JSC) and the LSB would submit that they are invalid and are a violation of the right of the judges to petition the employing authority, the JSC.
“The right to present petition has historical significance and dates back to the Magna Carta and has in international law attained the status of ius cogens. “It is constitutionally enshrined in Section 11 of the Constitution under the rubric of freedom of expression. The Law Society of Botswana is of the respectful view that judges must be permitted to petition the JSC freely without any reprisals or repercussions. The judges’ suspension greatly undermined and violated their right to petition.”
The suspension is furthermore invalid by reason of the differential treatment accorded to the judges who signed the petition that triggered the judges’ suspension. The LSB boss said 12 judges signed the petition yet only four have been suspended. The suspension of some judges and not others greatly undermines the independence of the judiciary.
“The eight who were not suspended may have become beholden to the executive for the ‘favourable’ treatment that has been extended to them. The LSB will submit that the constitutional imperative of judicial independence requires that judges of cognate jurisdiction be treated equally and subjected to the same terms and conditions of service. The inequality in treatment of judges of cognate jurisdiction erodes public confidence in the judiciary and undermines its independence.”
He said: “Other judges have similarly been overpaid at various times but have not been reported to the police and to that extent, the society will submit that the decicion violates the Constitution by selective application of the rules and therefore reviewable”.
He further argued that Dibotelo ought to have recused himself from the decision-making process that resulted in the housing allowance issue being referred to the Botswana Police Service. He said the chief justice clearly had an interest in the matter as he had already expressed his views on it, and he had indicated that he would use the issue to end judicial careers.
Rather than recuse himself, the Chief Justice used his position as chairperson of the JSC to influence the referral by the JSC of a criminal complaint to the police. The LSB would submit that the decision was invalid on account of the chief justice’s conflict of interest.
The LSB would also submit that the establishment of a tribunal to enquire into the fitness of the judges is unconstitutional for several reasons. The tribunal has only been established in respect of only four of the 12 judges who signed the petition. The LSB would submit that this differential treatment undermines judicial independence which the Constitution guarantees. It effectively means that the executive favours some judges over others.
He argues that the double standards that are being applied in respect of the discipline of judges undermines judicial independence. Those who commit more serious transgressions against whom no action is taken may become indebted to the executive for their continued service in the judiciary. “This feeling of indebtedness to the executive was recently evident when Justice [Kholisani] Solo, contrary to his oath of office and to the letter and spirit of the Constitution expressed his indebtedness to the President for having appointed him at a time of need and despair.
“Despite this flagrant breach of the Constitution, which renders the judge concerned non-suited to preside in matters in which the executive is a party, no disciplinary action was recommended against him or even considered.”
Moipolai also mentioned the issue of termination of vehicle benefits to the suspended quartet. “The reduction of a judge’s benefits whilst he holds office is a grave violation of the Constitution. The provision of a vehicle for official and private use is one of the benefits that a judge is entitled to.
“A judge’s benefit may not whilst he holds office be reduced. A reduction not only contravenes the Constitution but is contrary to international norms and practices… The LSB will therefore submit that the decision to revoke the vehicle benefit is unlawful. The issue of reduction of benefits of judges whilst they hold office is of particular interest to the LSB as almost all judges are appointed from the membership of the LSB.” As regards the reviewability of the President’s decisions that are being challenged, the LSB would submit that it is absurd in a constitutional democracy to argue that the invocation of constitutional powers by the President is beyond the court’s scrutiny. “The rule of law requires that only the Constitution is supreme and the courts as the final arbiters of what the law is ,have an obligation to scrutinise executive action for compliance with the law.”