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Suspended Judges sue Khama, Chief Justice

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.

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