E sale re buile: Tide in the affairs of the Judiciary
Oarabile Mosikare | Friday March 3, 2017 15:47
The erosion of public confidence in the Judiciary is as old as Khama’s Presidency. Early in his presidency, or early 2008 precisely, Khama refused names of Judges the Judicial Service Commission (JSC) had recommended to him. One of these matters is still pending before the Court of Appeal (CoA) and may well be a casualty of the current crisis.
In September 2015, Khama suspended four 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 enquire into their conduct.
The quartet had been at loggerheads with the Chief Justice (CJ) Maruping Dibotelo, who had reported them to the police to investigate them for earning housing allowances despite being accommodated in Government houses.
Ever since then, it has been an open sesame with the crisis spiralling out of control. The litigant, both at the High Court and CoA, is the greatest victim. It is common cause that there are divisions within the Judiciary because of the housing allowance saga.
While the quartet is still suspended, others were allowed to escape with murder when it was found that they had been overpaid the housing allowance.
The quartet’s case is before the Court and has pitted them against their colleagues. Dibotelo had refused to assemble a Bench comprising foreign Judges.
Conflict of interest is screaming out aloud in this particular case because the CJ was allowed to empanel the Bench. In their application for recusal, mistrust and division within the Judiciary are clear even to a blind man.
In his affidavit, Letsididi argued that their colleagues, Justices Lakhvinder Singh Walia, Zibani Makhwade and Leatile Dambe have shown “partiality and displayed unwarranted impatience with our attorneys”.
He said that the Judges are biased against them was as palpable as it was reasonable and have prejudged the merits or otherwise, prior to argument of the review.
The Judges have since dismissed the application. Then Judge President (JP), Ian Kirby entered the fray. Unprovoked, Kirby launched a tirade against parties, Unions or interest groups.
This provoked outrage amongst the lawyers and Botswana Federation of Public Private Parastatals Sectors Unions.
In his address at the opening of the January 2017 CoA session, Kirby said during 2016, as in previous years, there has been some commentary in the press about “executive-mindedness” in the Judiciary, and particularly in CoA.
It did not just end there. The Law Society of Botswana chairperson, Kgalalelo Monthe rebutted Kirby’s comments.
“At the opening of the just ended session of the CoA, the JP made comments reflecting his views on separation of powers and the role of the CoA. What value these comments, which did not seem to have any relevance brought, is anybody’s guess, but we do have our own suspicions. It is our ardent hope that whatever the intention was has not been achieved.
The Society notes that if the credibility of the Judiciary in Botswana is to be ensured, episodes such as this need to be avoided at all costs,” Monthe said.
As if it was not enough, Lobatse High Court Judge Abednego Tafa hit the final nail in the Judicial crisis. In his judgement Tafa ordered that the appointment of Isaac Lesetedi, Monametsi Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie was invalid in that the President had no right to reappoint them to the Bench.
The judgement followed a challenge by the Johnson Motshwarakgole’s National Amalgamated Local and Central Government and Parastatal Workers’ Union against President Khama on his appointment of the CoA judges.
Who had ever thought that Motshwarakgole would expose the façade that is our Judiciary? Instead of heeding the advice of Tafa and resolve the issue through Parliament, the State appealed for stay of execution. Tafa dismissed them and the crisis deepens.
The appointing authority needs to show that he is in charge and say to the to the CJ “enough is enough, we cannot continue like this anymore”.