Judges sue Khama for their suspension pending investigations
The four suspended Judges Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang this week filed an urgent application before the High Court to challenge their recent suspension from the bench by President Lt. Gen. Ian Khama.
In suspending them, Khama has beseeched section 97 of the constitution and effectively suspended the Judges for alleged “misbehavior.” The suspension came after claims were laid against the said judges for receiving misallocated housing allowances while staying in government houses.
Chief Justice Maruping Dibotelo is said to have reported the quartet to the police for investigation and to face criminal charges where need be. In addition the Judges were reprimanded for having undermined the authority of the Chief Justice and to have acted in manner that was damaging to the judiciary.
They are accused of addressing a letter to Dibotelo (and copied to all other judges) criticizing his conduct against them; and signed a petition addressed to the Judicial Service Commission seeking the Chief Justice’s impeachment, the issue which is also said to have irked the Chief Justice.
Following the suspension of the Judges, Khama also appointed a tribunal to investigate the quartet and if found guilty of any wrong doing on the matter they may be removed from office.
In court papers passed to Weekend Post and filed before Justice Tau, the Judges want to declare invalid the decision of President Khama to suspend them pending the outcome of the tribunal’s investigation.
In fact they also want the court to set aside that decision to appoint that tribunal to investigate them (with the potential for removal from judicial office).
The four argue in the papers that: “the decision to establish a tribunal and/or to suspend the applicants (Judges) violates the rule of law and/or the applicants (Judges)’s rights to equal protection of the law, and is unconstitutional.”
They further state that the decision to establish a tribunal and to suspend them violates the very constitutional tenet of judicial independence, as well as their rights to freedom of expression.
The issue of separation of powers comes into play
According to Justice Dingake, in his founding affidavit, the matter raises concerns over the separation of powers and the need to safeguard the judiciary against improper interference by the Executive. In the affidavit, the suspended Judge pointed out that the decision to suspend them on the grounds advanced violated the tenet of judicial independence and the proper separation of powers.
Independence of the judiciary and freedom of expression
“I am advised and verily believe that the manner in which the president dealt with this matter undermines the independence of the judiciary to the extent that it suggest that there is no security of tenure,” he said.
The housing allowance saga
Dingake, a progressive judge who is seen as the main target in the matter explained in court papers that it appears that housing allowances were mistakenly paid to the four judges, and they established that it’s not only them but two other judges, “in what was an administrative oversight by Administration of Justice or its accounting officer.”
He said they were not afforded an opportunity to be heard before the president took his decision to appoint a Tribunal and to suspend them. As a consequence, these decisions were taken in breach of the requirements of natural justice and procedural fairness, the Justice stated in the affidavit.
“As soon as we had knowledge of the oversight, we offered to repay the housing allowances. Any suggestion that the Judges have perpetrated a criminal act in relation to the housing allowances is baseless.”
Does the president have powers to suspend Judges?
President Khama is said to have invoked section 97 of the constitution to suspend the judges, and to appoint a tribunal to investigate them.
Section 97 (2) states: “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 or from any other cause) or for misbehavior, and shall not be so removed except in accordance with the provisions of this section.”
Subsection (3) of the same section continues to state that “if the president considers that the question of removing a judge of the High Court under this section ought to be investigated then (a) he shall appoint a tribunal which shall consist of a Chairman and not less than two other members, who hold or have held high judicial office; (b) the tribunal shall inquire into the matter and report on the facts thereof to the President and advise the president whether the judge ought to be removed from office under this section for inability as aforementioned or for misbehavior, the president shall remove such judge from office.”
“If the question of removing a judge of the High court from the office has been referred to a tribunal under subsection (3) of this section, the President may suspend the judge from performing the functions of his office, and any such suspension may at any time be revoked by the President and shall in any case cease to have effect if the tribunal advises the President that the judge ought not to be removed from office,” section 97 (5) reads.
According to Dingake’s affidavit, he has been advised and verily believes that the President’s power to suspend a judge is subject to the constitution and the law. He said it must not be exercised in manner that undermines judicial independence (a constitutionally enshrined principle).
“As a consequence, the decision to suspend a judge must be carefully considered in light of the particular facts of the case. As such, the grounds for a suspension must be sufficiently serious to warrant an immediate removal from office.
Otherwise no judge can feel free to exercise their judicial independence for fear that they may be the subject of an investigation and/or suspension.”
He continued to state that the constitution protects the judge’s security of tenure and ensures that it should not be easy to remove a judge from office.
Dingake said there is the Judicial Code of Conduct in place which sets the standard to which judges must adhere. “It sets out a number of rules to safeguard the independence of the judiciary and to ensure that judges act with impartiality, integrity, equality and diligence.”
Why the matter needs urgent attention
The four suspended judges, through their lawyers at Chibanda Makgalemele and Company Attorneys, have said the matter is of paramount urgency because each day the Judges are on suspension their reputations and standing as judges continue to suffer.
“Their suspension creates the impression that the charges against them have substance and ultimately, the suspension creates the perception that they are guilty and corrupt,” they asserted.
They also state that the suspension (and the publicity that surrounds it) creates the perception that the judiciary lacks independence from the executive. “This erodes public confidence in the judiciary. It is imperative that this perception be speedily dispelled.”
In addition, the Judges posit that the suspension prejudices members of the public and litigants whose matters are before them (judges). A number of these matters have already been heard and are awaiting judgement.
“Other matters have been set down for the coming weeks. These matters will be delayed or postponed. The magnitude of this disruption and delay must not be underestimated.”
To put the matter into perspective, each of the suspended judges have a minimum of 300 active files and this translates to 1200 files that need to be managed and/or relocated amongst the remaining Gaborone and Lobatse judges thus rendering their already heavy workload impossible, they highlighted.
They further pointed out that: “this matter raises very important and weighty constitutional matters of great importance in a democracy such as ours. Matters of this nature can also not wait a hearing in due course and need to be addressed and adjudicated upon with expediency having due regard to their impact on the country as a whole.”
The case is expected to be a make or break for the judiciary of the country and will be heard before Justice Tau next week Thursday.
Here is how one Permanent Secretary encapsulates the clear tension between democracy and bureaucracy in Botswana: “President Mokgweetsi Masisi’s Government is behaving like a state surrounded with armed forces in order to capture it or force its surrender. The situation has turned so volatile, for tomorrow is not guaranteed for us top civil servants.
These are the painful results of a personalized civil service in our view as permanent secretaries”. Although his deduction of the situation may be summed as sour grapes because he is one of the ‘victims’ of the reshuffle, he is convinced this is a perfect description of the rationale behind frequent changes and transfers characterising the current civil service.
The result of it all, he said, is that “there is too much instability at managerial and strategic levels of the civil service leading to a noticeable directionless civil service.” He continued: “Changes and transfers are inevitable in the civil service, but to a permissible scale and frequency. Think of soccer team coach who changes and transfers his entire squad every month; you know the consequences?”
The Tsunami has hit hard at critical departments and Ministries leaving a strong wave of uncertainty, many demoralised and some jobless. In traditional approaches to public administration, democracy gives the goals; and bureaucracy delivers the technical efficiency required for implementation. But the recent moves in the civil service are indicative of conflicting imperatives – the notion of separation between politicians and administrators is becoming blurred by the day.
“Look at what happened to Prisons and BDF where second in command were overlooked for outsiders, and these are the people who had sacrificially served for donkey’s years hoping for a seat at the ladder’s end. The frequency of the changes, at times affecting the same Ministry or individual also demonstrates some level of ineptitude, clumsiness and lack of foresight from those in charge,” remarked the PS who added that their view is that the transfers are not related to anything but “settling scores, creating corruption opportunities and pushing out perceived dissident and former president, Ian Khama’s alleged loyalists and most of these transfers are said to be products of intelligence detection.”
Partly blaming Khama for the mess and his unwillingness to let go, the PS dismissed Masisi for falling to the trap and failing to outgrow the destructive tiff. “Khama is here to stay and the sooner Masisi comes to terms with the fact that he (Masisi) is the state President, the better. For a President to still be making these changes and transfers signals signs of a confused man who has not yet started rolling his roadmap, if at all it was ever there. I am saying this because any roadmap comes with key players and policies,” he concluded.
The Ministry of Health and Wellness seems to be the most hard-hit by the transfers, having experienced three Permanent Secretaries changes within a year and a half. Insiders say the changes have everything to do with the Ministry being the centre of COVID-19 tenders and economic opportunities. “The buck stops with the PS and no right-thinking PS can just allow glaring corruption under his watch as an accounting officer. Technocrats are generally law abiding, the pressure comes with politically appointed leaders racing against political terms to loot,” revealed a director in the Ministry preferring anonymity.
The latest transfer of Kabelo Ebineng she says was also motivated by his firm attitude against the President’s blue-eyed Task Team boys. “The Task Team wants to own the COVID-19 pandemic and government interventions and always cry foul when the Ministry reasserts itself as mandated by law,” said the director who added that Masisi who was always caught between the crossfire decided on sacrificing Ebineng to the joy of his team as they (Task Team) were in the habit of threatening to resign citing Ebineng as the problem.
Ebineng joins the Office of the President as a deputy Coordinator (government implementation and coordination office).The incoming PS is the soft-spoken Grace Muzila, known and described by her close associates as a conformist albeit knowledgeable.
One of the losers in the grand scheme is Thato Raphaka who many had seen as the next PSP because of his experience and calm demeanour following a declaration of interest in the Southern African Development Community (SADC) Secretary post by the current PSP, Elias Magosi.
But hardly ten months into his post, Raphaka has been transferred out to the National Strategy Office in what many see as a demotion of some sort. Other notable changes coming into OP are Pearl Ramokoka formerly with the Employment, Labour and Productivity Ministry coming in as a Permanent Secretary and Kgomotso Abi as director of Public Service Reforms.
One of the ousted senior officers in the Office of the President warned that there are no signs that the changes and transfers will stop anytime soon: “If you are observant you would have long noticed that the changes don’t only affect senior officers but government decisions as well. A decision is made today and the government backtracks on it within a week. Not only that, the President says this today, and his deputy denies it the following day in Parliament,” he warned.
Some observers have blamed the turmoil in the civil service partly to lack of accountable presidential advisers or kitchen cabinet properly schooled on matters of statecraft. They point out that politicians or those peripheral to them should refrain from hampering the technical and organizational activities of public managers – or else the party (reshuffling) won’t stop.
In the view expressed by some Permanent Secretaries, Elias Magosi, has not really been himself since joining the civil service; and has cut a picture of indifference in most critical engagements; the most notable been a permanent secretaries platform which he chairs. As things stand there is need to reconcile the imperatives of democracy and democracy in Botswana. Peace will rein only when public value should stand astride the fault that runs between politicians and public managers.
Former Permanent Secretary to the President, Carter Morupisi, is fighting for survival in a matter in which the State has charged him and his wife, Pinnie Morupisi, with corruption and money laundering.
Morupisi has joined a list of prominent figures that served in the previous administration and who have been accused of corruption during their tenure in office. While others have been emerging victorious, Morupisi is yet to find that luck. The High Court recently dismissed his no case to answer application.
United States President, Joe Biden, is faced with a decision to make relating to the Covid-19 vaccine intellectual property after 175 former world leaders and Nobel laurates joined the campaign urging the US to take “urgent action” to suspend intellectual property rights for Covid-19 vaccines to help boost global inoculation rates.
According to the world leaders, doing so would allow developing countries to make their own copies of the vaccines that have been developed by pharmaceutical companies without fear of being sued for intellectual property infringements.
“A WTO waiver is a vital and necessary step to bringing an end to this pandemic. It must be combined with ensuring vaccine know-how and technology is shared openly,” the signatories, comprising more than 100 Nobel prize-winners and over 70 former world leaders, wrote in a letter to US President Joe Biden, according to Financial Times.
A measure to allow countries to temporarily override patent rights for Covid related medical products was proposed at the World Trade Organization by India and South Africa in October, and has since been backed by nearly 60 countries.
Former leaders who signed the letter included Gordon Brown, former UK Prime Minister; François Hollande, former French President; Mikhail Gorbachev, former President of the USSR; and Yves Leterme, former Belgian Prime Minister.
In their official communication, South Africa and India said: “As new diagnostics, therapeutics and vaccines for Covid-19 are developed, there are significant concerns [about] how these will be made available promptly, in sufficient quantities and at affordable prices to meet global demand.”
While developed countries have been able to secure enough vaccine to inoculate their citizens, developing countries such as Botswana are struggling to source enough to swiftly vaccine their citizens, something which world leaders believe it would work against global recovery therefore proving counter-productive.
Since the availability of vaccines, Botswana has been able to secure only 60 000 doses of vaccines, 30 000 as donation as from the Indian government, while the other 30 000 was sourced through COVAX facility. Canada, has pre-ordered vaccines in surplus and it will be able to vaccinate each of its citizens six times over. In the UK and US, it is four vaccines per person; and two each in the EU and Australia.
For vaccines produced in Europe, developing countries are forced to pay double what European countries are paying, making it more expensive for already financially struggling economies. European countries however justify the price of vaccines and that they deserve to buy them cheap since they contributed in their development.
It is evident that vaccines cannot be made available immediately to all countries worldwide with wealthy economies being the only success story in that regard, something that has been referred to as a “catastrophic moral failure”, head of the World Health Organisation (WHO), Tedros Adhanom Ghebreyesus.
The challenge facing developing countries is not only the price, but also the capacity of vaccine manufactures to be able to do so to meet global demand within a short time. The proposal for a patent waiver by India and South Africa has been rejected by developed countries, known for hosting the world leading pharmaceutical companies such US, European Union, the United Kingdom, and Switzerland.
According to the Financial Times, US business groups including pharmaceutical industry representatives, have urged Biden to resist supporting a waiver to IP rules at the WTO, arguing that the proposal led by India and South Africa was too “vague” and “broad”.
The individuals who signed the letter, including Nobel laureates in economics as well as from across the arts and sciences, warned that inequitable vaccine access would impact the global economy and prevent it from recovering.
“The world saw unprecedented development of safe and effective vaccines, in major part thanks to US public investment,” the group wrote. “We all welcome that vaccination rollout in the US and many wealthier countries is bringing hope to their citizens.”
“Yet for the majority of the world that same hope is yet to be seen. New waves of suffering are now rising across the globe. Our global economy cannot rebuild if it remains vulnerable to this virus.” The group warned that fully enforcing IP was “self-defeating for the US” as it hindered global vaccination efforts. “Given artificial global supply shortages, the US economy already risks losing $1.3tn in gross domestic product this year.”