Contrary to President Ian Khamaâ€™s assertion that his decision to suspend the four judges is not reviewable, the judges argue that there is a case law that supports the proposition that such decisions are reviewable.
The judges also say it is incorrect that the applicants have not demonstrated that a review of the President’s decision to suspend has sound prospects of success. “In this case, the decision to suspend and the decision to establish the tribunal were unlawful and unconstitutional. There are strong prospects that the President’s decisions will be set aside on the ground that they are unlawful and irrational,” wrote Justice Key Dingake in his replying affidavit.
The quartet: Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang, contend that Khama has exercised his discretion to suspend them in terms of Section 97 of the Constitution in a manner that is proper and lawful.
“We maintain that this is not the case. The President exercised his powers beyond the limit of the law and, as a consequence, his decision to suspend is contrary to the rule of law. Furthermore, there is nothing in the laws of Botswana or the Constitution that denies the judges the opportunity to review the President’s exercise of executive power. Our courts have a duty to fortify and sustain the rule of law. Further legal argument on this point will be advanced in our written and oral submissions,” said Dingake.
The judges also deny any wrongdoing in relation to the receipt of the housing allowances. Moreover, the issue of the housing allowances is not relevant to the dispute before the court.
“The suspension and the tribunal’s terms of reference do not deal with the issue of the housing allowances.” They also deny that they acted wrongfully by writing the letter of complaint on August 12, 2015 or signing the petition on August 17, 2015.
“In both cases, the judges were communicating a legitimate complaint to the Chief Justice and the JSC [Judicial Service Commission].
They are entitled to do so, in accordance with their right to freedom of expression under the Constitution. In addition, the Judicial Code of Conduct encourages such conduct rather than prohibiting it.”
In his answering affidavit, the Chief Justice wrote that the judges were guilty of wrongdoing in relation to the receipt of the housing allowances or have been ‘wrongfully’ receiving housing allowances.
“The term ‘wrongfully’ suggests that we harboured the intention to act unlawfully. In addition, the term ‘wrongfully’ is used selectively – it imputes blame on the parties receiving the allowances but is silent on the responsibility of the individuals that manage the finances of the Administration of Justice and who put our earnings into our accounts,” said Dingake.
Again in his papers, Dibotelo said justices Godfrey Nthomiwa and Gaolapelwe Ketlogetswe are neither credible nor reliable.
“On the contrary the two judges have gone on oath to swear to their version. As judges, putting up a version on oath should not be taken lightly.
I note that the Chief Justice does not deny the content of Judge Nthomiwa and Judge Ketlogetswe’s affidavits. Furthermore we point out that Judge Nthomiwa is the longest serving Registrar of the High Court since independence in 1966, and therefore his assertions should not be taken lightly,” concluded Dingake.
The case is scheduled for September 28 before Judge Tebogo Tau at the Lobatse High Court.