A promise to the Constitution

Dingake
Dingake

A liberal non-conformist and a firm defender of natural justice, Judge Key Dingake is among the luminaries of Botswana’s judicial system. Veteran journalist, METHAETSILE LEEPILE, traces the Judge’s illustrious path through the decades

A fellow jurist once described Judge Oagile Bethuel Key Dingake as “a judge who possesses both head and heart,”distinguishing him from the type that is headless and heartless; one that has a head but no heart; and one with a heart but no head!  He was talking about the eminent judge’s temperament and sense of duty.

The accolade came from Mr. Justice Thomas Masuku of Swaziland,on the occasion of Judge Dingake’s celebrationof his 50 years and conferment of an honorary professorship by his alma mater, the University of Cape Town (UCT),  last December.

Those who know Key Dingake well will readily attest to his humane side, an attribute that extends to his judgments.His friend, Innocent Modisaotsile describes him as a ‘tribesman’ who would insist on being buried in his home village, Bobonong. “In public he exudes the image of a liberal person, but in his private life he’s rather conservative,”he adds. Fellow jurist Memooda Ebrahim-Casterns says he will forever be inspired by one of Dingake unshakeable statements in  Diau, that “the basic theme in the discourse of human rights which we in the judiciary must address, is how we can convert the promise of our constitution into reality.”


Dingake is the last born of 13 children. The first born was none other than Michael Kitso Dingake, the veteran politician.  His father, Dingake Dintwa, married MmaSelena after MmaKitso had passed on.The two women were relatives.

He grew up knowing about Mike’s brilliance in the village.  Mike’s stories were like life fiction, he told this scribe.  He was a brother I grew up not knowing, but one to whom everyone  used to compare me with in the village. My father used to lecture me, that he wanted me to have an education that could work, “not to become a commoner’s son who thinks he can rule the world” – a reference to his elder sibling who had given his life to politics.

Ironically, the old man thought his eldest son was long dead. Even on that fateful day in December of 1979 when Key came running from school,   flashing a postcard date-stamped Robben Island from Mike, his father dismissed him off hand. It took the persuasion of Joel, his cousin to convince Dingake senior that Mike was indeed alive.

A child prodigy, he always excelled in school, consistently getting top grades. His foundation years started in Lotsane senior in Palapye, where he developed a keen interest in History and Literature in English.  He read Law at the University of Botswana(UB),proceeding to do his master’s and doctoral studies at the universities of London and UCT respectively. As a student in UCT in 1996, he even took off time at the invitation of the late Judge Dawie de Villiers to practice as an Industrial Court judge, much to the chagrin of his employer, UB! “What student would miss an opportunity to practice as a judge?” he asks, chuckling.

From an early age he knew he was destined for great things. “I wanted to become a judge or president of the Republic. In school I read profusely. I wanted to write about judges and the Law.”

Says Masuku, “even in his personal life he speaks of little else besides the law. It is his preoccupation, his passion, his life calling. For him, without the law, there is no life.”

Justice Dingake belongs to that breed of judges that are labeled ‘liberal’ or ‘activist’.  In one of his scholarly papers, ‘Personal Independence and Immunity of Judges in Botswana’, delivered in Swaziland at the International Conference of Jurists in December 2012, he argues that the Constitution of the Republic “guarantees individual rights and the Courts are (not only) obliged to enforce such rights; they have a constitutional prerogative to enforce the scope and extent of power for the other organs according to the Law.”  It is a credo he has lived up to in his prolific judgments.

Justice Dingake‘s non-conformist approach to law has won him plaudits for his work at home and abroad. He has been particularly commended for his ground breaking work on the principle of natural justice, an aspect of Administrative Law called the ‘audi alteram paretem rule.’ (See anchor story)

Perhaps his most celebrated judgement was the Mmusi vs Ramantele (MAHLB000836-10)  case, where he ruled that females are entitled to benefits, including the right to become chiefs. The ground breaking case followed in the steps of his other landmark ruling, Diau vs Botswana Building Society (2003 (2) BLR 409-IC) in which he asserted the rights of workers who had HIV/Aids. These rulings are forever etched in legal folklore, to borrow the words of his erstwhile colleague at the Industrial Court, Judge Ebrahim-Casterns, currently Judge President of the UN Dispute Tribunal.

Dingake has taught law, practised as an attorney, and had stint as a corporate lawyer before joining the Industrial Court in 2002. He migrated to the High Court in 2005. In between he has travelled all over the world presenting scholarly papers, sometimes on behalf of the then Chief Justice, the late Julian Nganunu. 

In 2014 he was approached to become chief justice of the Gambia following a UN search. He would only accept  the offer if he was sent on secondment by his government, and when this did not materialise,  the deal fell through. Since November 2013 he has been serving on the Residual Special Court for Sierra Leone. Last October UCT conferred an honorary professorship on Judge Dingake. This is an honour that is given to a distinguished scholar or jurist who has done exceptionally well in his area.

Says he, says“it has been a fulfilling experience. I think I have run my race.”  Which begged the question:  where is the 51 year old judge headed now? “My heart will always be with law. I need space to do more writing, to teach, to travel and to serve human kind wherever my services are needed.”

Audi – Defining the boundaries of natural justice

Dingake J’s ruling, a 100 page tome, was a jurisprudential treaty of wide ranging philosophical depth and legal brilliance that it could well serve as an annex to the Constitution of Botswana – Prof. Pnina Webner

 

In May 2011 the Government  had dismissed en masse essential service workers  for participating in an illegal strike. The Judge argued that what was at stake was the issue of natural justice and whether the Government had acted fairly and in accordance with the Law when carrying out its action.  In his judgment of June  2012, Judge Dingake  ruled  that the State had not acted fairly  in dismissing the workers and  ordered their reinstatement.  This was the second of a trilogy of cases between 2011 and 2013 that pitted the Government against its employees. The first case BLLAWU, BOPEU and Others – AG, AC UR 13/11)  was  heard in the Industrial Court by Judge  JP Maruping on May 6, 2011.

Dingake’s decision was  later overturned by the Court of Appeal  (COA) on the grounds that the strike  precipitated a crisis in the delivery of public service.The workers were irresponsible  and had made unacceptable wage demands when they were well too aware of the economic hardships that the country was facing at the time.

Where Dingake had stressed respect for  workers’ dignity and the right to be heard, against the backdrop of hardships  and the public humiliation that the dismissals entailed, Judge Kirby stressed the importance of maintaining law and order.

The COA judgment was widely criticised in legal and labour circles as being overtly political.

Wim Trengrove, who was engaged by the  Union had  publicly criticised the judgment as  not being based on points of law. “There is no legal basis that strikes in the public service should be a rare occurrence; it may be what the executive wants but it is not supported by legislative interventions…” The Union also issued a public statement in the media which was openly critical of Judge Kirby.

In the third of the trilogy of cases, Judge Dingake made yet another ruling in favour of the workers in August 2012. The Minister of Labour and Home affairs had peremptorily extended the extension of essential workers to include virtually the whole public sector workforce.

Judge Dingake’s ruling introduced two elements to audi: questions relating to constitutional and administrative law and the place of international law in the municipal law of Botswana. He argued that the legislature is limited in terms of which laws it can pass; therefore, parliament may not delegate subsidiary powers to the executive.  He argued for an independent judiciary, “lest it becomes paralysed by fear or favouritism.”

“A manifestly independent and impartial court  lies at the heart of the system of checks and balances built into the Constitution”, he argued. And he concluded: “we the justices of the law must never lose sight of the fact that the final cause of the law is the welfare of society, of which the workers are a significant part.”

Irish law professor Pnina Webner described Dingake’s ruling  at the time as “jurisprudential treaty of wide ranging philosophical depth and legal brilliance that it could well serve as an annex to the Constitution of Botswana.”

The case had gone to the COA and once again Judge Kirby made the final adjudication.  He contented that there was nothing wrong in the legislature delegating powers to the executive, and that in Botswana the right to strike was not constitutionally enshrined.This argument was contra-Dingake. But Kirby also observed  that parliament recently recognised the right of public workers to strike ‘after full debate.’In  the COA’s  position then, the Minister’s decision was  unconstitutional.

In Kenneth Matambo v Speaker of the National Assembly and Two Others (MAHGB 000845 2013),Justice Dingake  set  aside  the proceedings and rulings of the Parliament’s Special  Select Committee of  Enquiry into the Affairs of the Botswana Development Corporation (BDC) as it related to the applicant, arguing that it was unlawful  and breached the principles of natural justice. Matambo, then CEO of the parastatal  had argued that he had not been given a fair hearing by the Committee and that his reputation had been ruined.

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