Four suspended judges of the High Court, being Justices Key Dingake; Modiri Letsidi; Mercy Garekwe; and Ranier Busang have this week moved an application at High Court calling for the recusal of panel of judges scheduled to hear their case on the matter in which they are challenging their suspension.
The panel which the four Judges does not want chairing on their case comprises of Justices Singh Lackvinda Walia, Zibani Makhwade and Leatile Dambe.
They detest them sitting together in a panel as presiding Judges, in the main application for the review of the decisions taken by the Chief Justice Maruping Dibotelo, Judicial Service Commission (JSC) and the President Lt. Gen. Seretse Khama Ian Khama.
President Khama suspended the quartet for challenging Chief Justice Dibotelo's move of threatening to report them to the Police for criminal investigation as they were receiving housing allowances while staying in official residences. It was said that they were not entitled to the housing allowance.
The suspended Judges then hauled Khama to court questioning their suspension and highlighting to court that it was unconstitutional and that Khama in earnest does not have powers to suspend Judges.
In the fresh notice of motion filed on Thursday the suspended judges stated in their renewed application that they want court to make an order “that the Honourable Justice(s) Walia, Makhwade and Dambe recuse as presiding Judges in respect of this matter and in its entirety.”
According to the suspended foursome: “Justices (Walia, Dambe and Makhwande) have on various occasions shown us to be partial and displayed unwarranted impatience with our attorneys.”
The Judges, who have been put ‘on the back banner’ serving suspension explained in the court papers that “to date, our attorney has not delayed filing papers and has been forthcoming on all the facts, in an attempt to assist the court to expedite the hearing of this matter.”
They stressed that under circumstances their apprehension and perception that the Justices are biased against them is as palpable as it is reasonable. “Further it is reasonable to believe that they have prejudged the merits or otherwise, prior to argument of the review,” the judges on hold pointed out.
They insist that in the interest of a fair hearing and protection of their constitutional rights a recusal of the Honourable Justices is the only option.
Having served the country on the bench for a number of years, the suspended Judges put on ice said they are alive to the sensitivities attending an application of this nature. “However, the fact that such sensitivities subsist, ought not to bar a litigant from securing a fair hearing.”
According to the quartet up in the air the recusal application is not an indictment on the judicial profession at large; but an attempt to bring to light some concerns which any litigant is entitled to highlight.
“We were of the further view that anyone or more of our colleagues faced with hearing the matter and adjudicating upon it would invariably find themselves in a difficult and invidious position and we therefore were of the view that the appointment of a foreign bench comprising three judges (alternatively the appointment of a three judge panel of the most senior High Court judges) would be most appropriate.”
They wanted foreign judges with no known links to Botswana. Since the appointment of Justices Walia, Dambe and Makhwade, matters have proceeded in a manner which calls into question the independence of the court, they said.
Furthermore, the suspended Judges said their constitutional right for recourse through the courts has been compromised and there is a real apprehension that save for a recusal of the three Justices, there is scant opportunity that they will receive a fair hearing in the current interlocutory matters before the court and in the main substantive application for review.
In justifying why the judges need to further recuse themselves, they gave an example that previously, the court and in particular Justices Walia and Dambe took the view that the group of four suspended were unnecessary delaying the matter. These incidents at the hands of Justices Walia and Dambe was a foreshadowing of unwarranted hostility and ultimately bias from the court as against the applicants, they put to the fore.
They also categorically stated that: “the question of recusal of a judge(s) is a constitutional matter which goes to the right of a litigant to a fair hearing before an impartial court, in terms of section 10 (9) of the constitution.” It was said that it is therefore vital for the court to bear in mind that the suspended judges’ rights which stand to be violated should the Justices persist are constitutional rights.
Chibanda Makgalemele & Company represented the four suspended Judges while Attorney General stood in for the Registrar of the High Court, President Khama, JSC and Dibotelo.
An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.
In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.
In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.
Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.
More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.
At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.
The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).
Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).
International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.
In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”
The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”
According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.
In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.
The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.
LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.
“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.
Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.
CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”
Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.
About ten (10) Umbrella for Democratic Change (UDC) parliamentary candidates who lost the 2019 general election and petitioned results this week met with UDC Vice President, Dumelang Saleshando to discuss the way forward concerning the quandary that is the legal fees put before them by Botswana Democratic Party (BDP) lawyers.
For a while now, UDC petitioners who are facing the wrath of quizzical sheriffs have demanded audience with UDC National Executive Committee (NEC) but in vain. However after the long wait for a tete-a-tete with the UDC, the petitioners met with Saleshando accompanied by other NEC members including Dr. Kesitegile Gobotswang, Reverend Mpho Dibeela and Dennis Alexander.