Reinstatement of suspended High Court judges and recall of the tribunal
Correspondent | Friday March 31, 2017 16:20
He stated then that this was necessary for the good of the integrity and credibility of the Judiciary and ultimately for Botswana. He poignantly pointed out that if that were to happen, there would be no and the undeniable winner would be the Judiciary, litigants and Botswana.
The Law Society of Botswana has noted the events of the 28th March 2017 with disbelief, disappointment and a deep sense of foreboding. The announcement that settlement had been reached was initially received with excitement.
The Society for a moment thought that the parties had displayed the strength of character and maturity that it had recommended. But as the saying goes, the proof of the pudding is in the eating. In no time the Government published a detailed account of the settlement process and the details of such settlement.
It emerged therefrom that the four (4) suspended Judges had apologised to His Excellency the President and the Chief Justice (CJ). It was reported that they further withdrew the letter containing their concerns on the leadership of the CJ and subsequent Petition to the Judicial Service Commission (JSC). Whilst it may be possible that the Judges’ meeting with the President to discuss settlement was on invitation and not on the Judges’ own volition, what is however important is that there is truth in the Government’s statement that they have apologised.
The Society is surprised by this action since the Judges have repeatedly stated that they committed no wrong in bringing their concerns on the leadership of the CJ to the JSC. It cannot be an excuse that the apology was justified since the case was patently being manipulated against them and that the costs associated with this were heavy.
The Judges knew, or at best ought to have known, that the case was going to be long, fraught with pitfalls and one of attrition. Their plan therefore would have anticipated this.
To even suggest that the public has some blame for the apology by not assisting with funding as it seems to be suggested is unacceptable. How was the public to know that funds were required? Why was the public not to think all was well given the moral public support given by the public, civil society, business and International Organisations.
The Society believes that the four (4) Judges have, given the immense moral support they received, let down the legal fraternity, the Judiciary and the nation at large.
They have especially let down and compromised the three Judges who to date have refused to apologise for signing the Petition by the four (4) Judges.
The credibility of the Judiciary has no doubt suffered immensely and will take time and men and women of character, maturity and courage to heal.
There will always be suspicion as to why there was this sudden change in approach by the Judges to apologise after they had withstood pressure to do so for about two (2) years. There will be a perception out there that the four (4) Judges are now beholden to the President and that their independence from the Executive is compromised. That is a natural consequence of their actions.
It is however also important to note that the whole matter raises some very critical Constitutional issues; can the President lawfully make a prima facie determination that the Judges are not fit and proper, establish a Tribunal to consider such a determination and on his own again revoke the decision to establish the Tribunal based solely on an apology to him and the Chief Justice.
Issued by: The Council
The Law Society of Botswana
Gaborone, Botswana 30th March 2017.