Favourable treatment by Executive to some Judges worries LSB
Oarabile Mosikare | Friday January 13, 2017 16:07
The Law Society of Botswana (LSB) attorney Mboki Chilisa says it is not a surprise that in the High Court his clients sought to join, as amicus [friend of the court], proceedings in which four suspended Judges sought to review and set aside certain decisions. These are:
l The decision of the Chief Justice Maruping Dibotelo to place the issue of overpayment of the Judges’ housing allowance before the Judicial Service Commission (JSC)
l The decision of the JSC to refer the issue of overpayment of the Judges’ housing allowance to the police for investigation
l The decision of President Ian Khama to suspend them
l The establishment of a tribunal to enquire into the fitness of the suspended Judges
l The decision to deny the Judges the use of an official vehicle.
In September 2015, Khama suspended Judges Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang for alleged misconduct after it was found that they were paid undue housing allowances. A tribunal was appointed to inquire into their conduct. The quartet had been at loggerheads with Dibotelo, who had reported them to the police to investigate them for earning housing allowances despite being accommodated in government houses.
“Given the gravity of the issues raised and their implications for the independence and integrity of the judiciary in Botswana and the role of the Appellant in assisting the preservation of the integrity of the justice system and the rule of law in Botswana, common sense and logic dictated that the Appellant be admitted as amicus curiae, if only by reason of the fact that it is the Law Society of Botswana and no other,” wrote Chilisa in the appellant’s heads of argument filed at the Court of Appeal to be determined this session.
He said surprisingly the High Court dismissed the application to be joined as amicus with costs. “Whilst noting that the Law Society of Botswana’s interest is obvious, it took the view that the appellant was not bringing anything new to the attention of the Court and has descended into the area of conflict as the suspended judges’ advocate,” he submits.
Chilisa argued that the matter was not yet ripe for argument in respect of the merits. “The matter was not yet ripe for argument in respect of the merits, and therefore no legal arguments on the merits of the substantive matter had been filed by the parties from which it could be concluded that the Appellant was not raising new legal arguments.” He continued: “The admission of the Appellant would have added respectability and public confidence to the proceedings before the court below, which have been marred by an expression of a lack of confidence by the suspended judges in the impartiality of the panel of judges that was hand-picked by one of the protagonists, viz. the Chief Justice, to preside over the matter”.
He said there was accordingly no need for the High Court to have engaged in the speculative exercise of determining whether or not the legal contentions that the appellant sought to make would be different from those that will be made on behalf of the suspended judges or their adversaries.
The appellant’s position is that the suspension of the judges was invalid, so was the decision to establish a tribunal to consider the question of removal of the judges from office. The High Court, he continued, seemed to have incorrectly taken the view that the appellant was not seeking to join as a friend of the court but sought to join as a friend of the suspended judges. “The conclusion was based on the fact that the appellant’s position on all the issues it wanted to argue was aligned to that of the suspended judges rather than that of the respondents in the substantive application viz. the President, the Judicial Service Commission, the Attorney General and the Chief Justice.”
He said the alignment of the appellant’s position with that of the suspended Judges also does not mean, as concluded by the High Court, that there is nothing new whatsoever that the LSB is bringing. “A Judge is no ordinary public officer. He certainly cannot be compared to a disc jockey, a news presenter/editor employed in the public service. The Court of Appeal case of Sakaeyo Jannie v. Secretary, Presidential Affairs & Public Administration and the Attorney General of Botswana CACGB-078-13 (as yet unreported) which held that the suspension of a news editor employed in terms of the Public Service Act did not attract the audi rule is therefore of no assistance in determining whether or not the President was duty bound to observe the audi rule prior to suspending the Judges.”
The alleged misconduct giving rise to the suspension, even if established, was not sufficiently serious as to have warranted the suspension of the Judges from duty. “This is so if one has regard to the fact that Justice [Kholisani] Solo violated his oath of office by pledging allegiance to the Executive, yet he was not suspended from duty. The suspended judges do not seem to take issue with the fact that Justice Solo violated his oath of office by pledging his allegiance to the Executive. Justice Solo’s flagrant breach of his oath of office and its seriousness when compared with the wrong that the suspended Judges are alleged to have committed may escape the attention of the court below, if the appellant is not admitted as amicus.” The petition by the suspended Judges giving rise to the establishment of a tribunal was no more than an exercise of freedom of expression. The exercise of free expression is recognised by Section 12 of the Constitution. “The exercise of the right to free expression is also recognised by the Universal Declaration of Human Rights, which has attained the status of ius cogens.” Chilisa submitted that no tribunal was established to enquire into the fitness of Justice Barnabas Nyamadzabo following his letter to Khama, wherein he stated he was gripped by ‘group think’, which often results in poor quality decision-making. “A Judge who is gripped by ‘group think’ is a much greater danger to the public than one who stands up to the Chief Justice.”
He also said: “No tribunal was established to enquire into the fitness of Justice Solo despite the fact that he pledged allegiance to the President. A Judge who pledges allegiance to the Executive is more dangerous to the Administration of Justice than one who stands up to the Chief Justice”. No disciplinary action was taken against the other six Judges who signed the petition and have not apologised for same. “The differential treatment of Judges is a breach of Section 10(9) of the Constitution which requires that the Judiciary shall be independent. The extension of favourable treatment by the Executive to some Judges is a threat to independence of judiciary as vouchsafed by Section 10(9) of the Constitution,” he argued.
The respondents in the substantive review application argued that Khama’s decision to suspend the Judges and to establish a tribunal are not amenable to judicial review. LSB prays to be joined as amicus curiae in the review proceedings and that the opposing respondents shall bear the costs of the application jointly and severally. The respondents are the suspended quartet, Khama, JSC and the Attorney General.