President Ian Khama has refused the suspended judgesâ€™ demand to revoke their suspension and replace the judges he appointed to the tribunal, with foreign ones with no connections to the Botswana legal system.
Patient Thuto, the lawyer for the four suspended judges - Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang – had, on September 3, written to the President demanding that the suspension be rescinded and the panel appointed to investigate the quartet be replaced with foreign judges with no connection to the Botswana legal system.
A day later, the chief legal counsel to government, Attorney General Athalia Molokomme, wrote back stating that the President would do no such thing, as in their view there was nothing illegal or unconstitutional in his actions.
In a letter dated September 4, 2015, Molokomme stated that, “We do not share your view that his Excellency the President’s decision to suspend your clients and to appoint the tribunal are substantively flawed. Our position is based on established authorities in Botswana, namely the cases of Bolokang vs China Engineering Construction 2004 (2) BLR 285 (Industrial Court decision) and the more recent decision of the Court of Appeal in Sakaeyo Jannie vs the Secretary for Presidential Affairs and the Attorney General (case number CACGB 078/13) in which the Court of Appeal held that there is no requirement for a pre-suspension hearing”.
Subsequent to suspending the judges on September 1, Khama, acting in accordance with Section 97 of the Constitution of Botswana, appointed the tribunal to inquire into the conduct of four judges of the High Court.
A retired South African Supreme Court of Appeal judge, Craig Howie, chairs the tribunal. Justices John Foxcroft and Justice Isaac Lesetedi make up the tribunal. The suspension was not on full salary and benefits as the judges’ official vehicles were taken away from them.
In the letter to the president, Thuto said they were of the view that both the decisions to suspend her clients, and to appoint the tribunal are procedurally and substantively flawed.
“The decisions to refer our clients for investigation by a tribunal, and to suspend them pending its outcome, was procedurally flawed for failure to observe the principle of audi alteram partem. This is due to the fact that:
The decisions were taken solely on the basis of information made available to the President by the chief justice and/or the Judicial Service Commission (JSC). Our clients were not afforded any chance to be heard and to place their version before the president, prior to a decision being taken.”
“The decisions are highly prejudicial to our clients and damaging of their reputations as Justices of the High Court of Botswana. They also undermine the independence and efficacy of the Judiciary. The President ought, with respect, to have afforded our clients a hearing before he determined to refer them for investigation and/or suspend them. His failure to do so vitiates those decisions entirely,” said Thuto.
She said the decision to suspend the judges has no basis in the facts. “They have in fact committed no misbehaviour that would justify their suspension – particularly a suspension that entails a reduction in their salaries and benefits. In those circumstances, they contend that their suspensions were (and remain unreasonable and irrational).
Moreover, our clients’ suspensions infringe the rule of law, separation of powers and the independence of the Judiciary. These constitutional values permit the suspension of sitting judges only very rarely, and only where their continued conduct as judges would prejudice the effective functioning of the judiciary. This is simply not such a case.”
She also noted that the president is empowered in terms of Section 97 (5) of the Constitution, to revoke her clients’ suspension. “Given the considerations set out above and the unlawfulness of our clients’ suspension, we request that you do so. We would appreciate a response to this request by the end of business on Friday 4th September 2015. Should our clients’ suspensions not be revoked, it may be necessary – not only in the interest of our clients, but in the interest of the Administration of Justice and the rule of law – for an appropriate urgent application to be launched.”
Thuto also challenged the composition of the tribunal as she felt it was not constitutionally appropriate. “Given that the tribunal is tasked with investigating the conduct of judges, it is imperative that the tribunal is – and is seen to be – fair, independent and impartial. Any tribunal appointed must consist of judges who are completely independent and who have no known ties to any of the judges whose conduct is under investigation. Any appearance of bias or lack of objectivity would undermine the efficacy of the tribunal and the proper administration of justice. “The tribunal appointed by the president consists of three judges of the Court of Appeal. As such, they have relationships with the judges under investigation, the chief justice and JSC [Judicial Service Commission] (who are complainants in the case) and, indeed, the president. With respect, they do not have the appearance of impartiality and independence that this case demands,” wrote Thuto. The suspended judges want Khama to remove the three-tribunal judges and to appoint three foreign judges with no known links to the Botswana judiciary in their stead.
“If we do not hear from you by end of business on Friday 11th September, we shall consider that the President has declined to remove the three judges and replace them with three foreign judges with no known links to the Botswana judiciary and appropriate action shall ensue. We look forward to hearing from you. In the interim, our clients’ rights are strictly reserved.”
In response, Molokomme stated that, “Your demand that His Excellency the President revoke the suspensions of your clients is therefore declined. Regarding the composition of the tribunal, our position is that the appointments are competent. Consequently, your demand that the three judges appointed to the tribunal be replaced by foreign judges is declined”.
The Gaborone High Court Judge Tebogo Tau is scheduled to hear an urgent application launched by the quartet on September 17. The judges had been at loggerheads with the Chief Justice Maruping Dibotelo, who had reported them to the Botswana Police Service to investigate them for earning housing allowances despite being accommodated in government houses.