Parley to scrutinise Dibotelo, Walia contract extensions
Oarabile Mosikare | Friday March 3, 2017 18:00
This week, Selebi-Phikwe Member of Parliament, Dithapelo Keorapetse sent questions without notice to the Speaker of the National Assembly, Gladys Kokorwe stating his intentions to ask about the extension of contracts for some Judges he did not name.
It is understood that President Ian Khama has extended Dibotelo’s contract until he (Khama) leaves office on March 31, 2018. Dibotelo is due to retire on October 31, 2017 when he reaches 70 years.
It is in the public domain that Walia’s contract was extended for six months after he attained retirement age on December 31, 2016.
“On June 30, 2017 Hon. Justice Lakhvinder Singh Walia retires from the Bench after 15 years of service.
As one of the most senior Judges, Hon. Justice Walia has on numerous occasions been appointed to act as CJ in my absence.
I thank him for serving the Judiciary and the nation with so much honour and dignity. I hope that his conduct, hard work and dedication has been an example and has left a few lessons to other judicial officers about the values and ethos of being a Judge,” Dibotelo said in his address at the official Opening of the Legal Year last month.
Keorapetse wants Kgathi to explain to Parliament if there is a Judge or Judges who have reached the mandatory retirement age of 70, whose contracts have been extended.
If yes to update the House on (a) the names of these Judges, (b) when they attained the age of 70, (c) grounds for extensions of their contracts, (d) if the contracts were gazetted and if yes, to provide particulars of the (Government) Gazette(s) in question.
Keorapetse is to ask Kgathi “whether a Judge or CJ who has not yet reached the mandatory retirement age of 70, but is nearing that age may have his or her contract extended on the basis that it is anticipated that by the time he or she reaches 70 years, he or she may not have concluded his matters.
If yes, can he explain if this is true in respect of some Judges and if yes, to name these Judges and explain further this process, including the role of the Judicial Service Commission (JSC), Administration of Justice (AoJ) and Khama”.
Lastly, he will ask the Minister to say whether it is proper, appropriate and lawful for a Judge who has reached the mandatory retirement age of 70 to, “in the course of the extended period to complete pending cases as stated in the Constitution, take on new matters and if yes to (a) state names of Judges who have been so affected (b) if their judgements would be lawful”.
Keorapetse said the motivation for these three questions, being questions without notice, emanated from a realisation that there may be unconstitutional and unlawful extensions of Judges’ tenures after attaining mandatory retirement ages.
“If this is true, this would undermine the independence of the Judiciary and may necessitate Parliament to do something about the issue.”
He explained that part of the pillars of an independent Judiciary is security of tenure.
He asserted: “Contracts of Judges tend to be beholden to the Executive as there is a temptation to please the Executive to rule in its favour and improve one’s chances of having his or her contract renewed.
It is therefore in the national interest for the minister to as soon as possible answer these questions”.
According to Section 97 of the Constitution, “subject to the provisions of this section, a person holding the office of a Judge of the High Court shall vacate that office on attaining the age of 70 years or such other age as may be prescribed by Parliament: Provided that the President, acting in accordance with the advice of the JSC, may permit a Judge who has attained that age to continue in office for such period as may be necessary to enable him to deliver judgements or to do any other thing in relation to proceedings that were commenced before him before he attained that age”.
About two weeks ago, Walia heard and dismissed an urgent application filed by the suspended Botswana Premier League chief executive officer, Bennett Mamelodi seeking the Botswana Football Association to stop disciplinary proceedings against him. Lawyers are divided over whether Walia could hear urgent matters that commenced after he attained the retirement age.
“I think if the effect is to grant an order without the possibility of a lengthy hearing he can sit, provided the hearing is within the extended period.
Or if the matter spins out of control , or there is that real possibility then he has to recuse himself. It was a once-off application so he could legitimately hear it,” commented a veteran lawyer who preferred anonymity. Another believes Walia should concentrate only in the matters which commenced before he attained retirement age.