The story about the suspension of the four Judges has been widely covered by the independent media and as such, I will rely on the assumption that such reports are correct. My debate therefore seeks to find out whether the Judges are blameworthy in the payment of housing allowances to themselves.
The suspension, as reported, is for the Tribunal appointed by the President in terms of Section 97 of the Constitution to inquire into the conduct of the four suspended Judges. Section 97(2) says “a judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind of any other cause) or from misbehaviour, and shall be removed except in accordance with the provisions of this section”.
Section 97(3) of the same constitution says “if the President considers that the question of removing a Judge of the High Court under this section ought to be investigated then he shall appoint a tribunal…… Further, Section 97(4) says “where a tribunal appointed under subsection (3) of this section advises the President that a judge of the High Court ought to be removed from office for inability as aforesaid or for misbehaviour, the President shall remove such judge from office”. I have never imagined that a judge could be removed for misbehaving but the Act says so.
Misbehaviour could be wrongful conduct, misconduct or wrongdoing. Did the judges misbehave when they were unduly paid the allowance? To answer this question (and I am doing so from a lay man’s point of view), one has to consider that due to the sensitivity of a judicial office, expectations and standards are extremely high and this may very well explain why they are more in the public eye than the paying officer.
Attention to detail to little or no margin of error could be some of the attributes expected of judges and as such, failure to satisfy them puts them on the back foot in the context of the Act.
I recall reading that a lady judge was removed from office in one of African states for refusing to be searched at the entrance of a shopping mall presumably owing to her high profile position. This shows that misbehaving occurs in different types and forms and could lead to the removal of a judge.
Did the judges do enough to repel attracting Section 97? I don’t think so. Judges themselves admit that they have unduly received the allowance and further that they are/were willing to pay back. It is important to know whether the willingness to reimburse was the initial reaction as soon as they became aware that they were paid this allowance or whether this is the case now that the matter has been reported to the police.
Regardless of the perceived or real turbulent relationship between them and their employer, the judges have passed the judicial temperament test (manner of thinking, behaving or reacting expected of a judge) if they took action to stop further payment as soon as they became aware of it.
If the latter is the case (willingness to pay after reporting to the police) the judges, in my view, have failed the judicial temperament test and should with respect, face the tribunal and put their arguments on the table. They would have been reactive instead of being proactive.
All in all, both parties have their own fair share of blameworthiness and as such, Section 97(4) will determine the fate of the concerned judges. I am not, however, oblivious to the fact that judges have reasonable aggravating factors amongst them: (a) employer failed to apply the audi alteram partem (hear the other person’s story) principle before reporting the matter to the police (b) the judges have admitted receipt of such allowances and have demonstrated willingness to reimburse it.
But are these strong enough factors coupled with other considerations to sway the tribunal in advising the President not to remove them notwithstanding the real or perceived turbulent relationship between the parties? Looking at the composition of the tribunal, one is hopeful that fairness and objectivity will rule supreme.
Will the Judges and/or the Chief Justice resign before the conclusion of the investigation? Time will tell.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.