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.
News
Nigerians, Zimbabweans apply for Chema Chema Fund
Fronting activities, where locals are used as a front for foreign-owned businesses, have been a long-standing issue in Botswana. These activities not only undermine the government’s efforts to promote local businesses but also deprive Batswana of opportunities for economic empowerment, officials say. The Ministry of Trade and Industry has warned of heavy penalties for those involved in fronting activities especially in relation to the latest popular government initiative dubbed Chema Chema.
According to the Ministry, the Industrial Development Act of 2019 clearly outlines the consequences of engaging in fronting activities. The fines of up to P50,000 for first-time offenders and P20,000 plus a two-year jail term for repeat offenders send a strong message that the government is serious about cracking down on this illegal practice. These penalties are meant to deter individuals from participating in fronting activities and to protect the integrity of local industries.
“It is disheartening to hear reports of collaboration between foreigners and locals to exploit government initiatives such as the Chema Chema Fund. This fund, administered by CEDA and LEA, is meant to support informal traders and low-income earners in Botswana. However, when fronting activities come into play, the intended beneficiaries are sidelined, and the funds are misused for personal gain.” It has been discovered that foreign nationals predominantly of Zimbabwean and Nigerian origin use unsuspecting Batswana to attempt to access the Chema Chema Fund. It is understood that they approach these Batswana under the guise of drafting business plans for them or simply coming up with ‘bankable business ideas that qualify for Chema Chema.’
Observers say the Chema Chema Fund has the potential to uplift the lives of many Batswana who are struggling to make ends meet. They argue that it is crucial that these funds are used for their intended purpose and not siphoned off through illegal activities such as fronting. The Ministry says the warning it issued serves as a reminder to all stakeholders involved in the administration of these funds to ensure transparency and accountability in their disbursement.
One local commentator said it is important to highlight the impact of fronting activities on the local economy and the livelihoods of Batswana. He said by using locals as a front for foreign-owned businesses, opportunities for local entrepreneurs are stifled, and the economic empowerment of Batswana is hindered. The Ministry’s warning of heavy penalties is a call to action for all stakeholders to work together to eliminate fronting activities and promote a level playing field for local businesses.
Meanwhile, the Ministry of Trade and Industry’s warning of heavy penalties for fronting activities is a necessary step to protect the integrity of local industries and promote economic empowerment for Batswana. “It is imperative that all stakeholders comply with regulations and work towards a transparent and accountable business environment. By upholding the law and cracking down on illegal activities, we can ensure a fair and prosperous future for all Batswana.”
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Merck Foundation and African First Ladies mark World Health Day 2024
Merck Foundation, the philanthropic arm of Merck KGaA Germany marks “World Health Day” 2024 together with Africa’s First Ladies who are also Ambassadors of MerckFoundation “More Than a Mother” Campaign through their Scholarship and Capacity Building Program. Senator, Dr. Rasha Kelej, CEO of Merck Foundation emphasized, “At Merck Foundation, we mark World Health Day every single day of the year over the past 12 years, by building healthcare capacity and transforming patient care across Africa, Asia and beyond.
I am proud to share that Merck Foundation has provided over 1740 scholarships to aspiring young doctors from 52 countries, in 44 critical and underserved medical specialties such as Oncology, Diabetes, Preventative Cardiovascular Medicine, Endocrinology, Sexual and Reproductive Medicine, Acute Medicine, Respiratory Medicine, Embryology & Fertility specialty, Gastroenterology, Dermatology, Psychiatry, Emergency and Resuscitation Medicine, Critical Care, Pediatric Emergency Medicine, Neonatal Medicine, Advanced Surgical Practice, Pain Management, General Surgery, Clinical Microbiology and infectious diseases, Internal Medicine, Trauma & Orthopedics, Neurosurgery, Neurology, Cardiology, Stroke Medicine, Care of the Older Person, Family Medicine, Pediatrics and Child Health, Obesity & Weight Management, Women’s Health, Biotechnology in ART and many more”.
As per the available data, Africa has only 34.6% of the required doctors, nurses, and midwives. It is projected that by 2030, Africa would need additional 6.1 million doctors, nurses, and midwives*. “For Example, before the start of the Merck Foundation programs in 2012; there was not a single Oncologist, Fertility or Reproductive care specialists, Diabetologist, Respiratory or ICU specialist in many countries such as The Gambia, Liberia, Sierra Leone, Central African Republic, Guinea, Burundi, Niger, Chad, Ethiopia, Namibia among others. We are certainly creating historic legacy in Africa, and also beyond. Together with our partners like Africa’s First Ladies, Ministries of Health, Gender, Education and Communication, we are impacting the lives of people in the most disadvantaged communities in Africa and beyond.”, added Senator Dr. Kelej. Merck Foundation works closely with their Ambassadors, the African First Ladies and local partners such as; Ministries of Health, Education, Information & Communication, Gender, Academia, Research Institutions, Media and Art in building healthcare capacity and addressing health, social & economic challenges in developing countries and under-served communities. “I strongly believe that training healthcare providers and building professional healthcare capacity is the right strategy to improve access to equitable and quality at health care in Africa.
Therefore, I am happy to announce the Call for Applications for 2024 Scholarships for young doctors with special focus on female doctors for our online one-year diploma and two year master degree in 44 critical and underserved medical specialties, which includes both Online Diploma programs and On-Site Fellowship and clinical training programs. The applications are invited through the Office of our Ambassadors and long-term partners, The First Ladies of Africa and Ministry of Health of each country.” shared Dr . Kelej. “Our aim is to improve the overall health and wellbeing of people by building healthcare capacity across Africa, Asia and other developing countries. We are strongly committed to transforming patientcare landscape through our scholarships program”, concluded Senator Kelej.
News
Interpol fugitive escapes from Botswana
John Isaak Ndovi, a Tanzanian national embroiled in controversy and pursued under a red notice by the International Criminal Police Organization (Interpol), has mysteriously vanished, bypassing a scheduled bail hearing at the Extension 2 Magistrate Court in Gaborone. Previously apprehended by Botswana law enforcement at the Tlokweng border post several months earlier, his escape has ignited serious concerns.
Accused of pilfering assets worth in excess of P1 million, an amount translating to roughly 30,000 Omani Riyals, Ndovi has become a figure of paramount interest, especially to the authorities in the Sultanate of Oman, nestled in the far reaches of Asia.
The unsettling news of his disappearance surfaced following his failure to present himself at the Extension 2 Magistrate Court the preceding week. Speculation abounds that Ndovi may have sought refuge in South Africa in a bid to elude capture, prompting a widespread mobilization of law enforcement agencies to ascertain his current location.
In an official communiqué, Detective Senior Assistant Police Commissioner Selebatso Mokgosi of Interpol Gaborone disclosed Ndovi’s apprehension last September at the Tlokweng border, a capture made possible through the vigilant issuance of the Interpol red notice.
At 36, Ndovi is implicated in a case of alleged home invasion in Oman. Despite the non-existence of an extradition treaty between Botswana and Oman, Nomsa Moatswi, the Director of the Directorate of Public Prosecution (DPP), emphasized that the lack of formal extradition agreements does not hinder her office’s ability to entertain extradition requests. She highlighted the adoption of international cooperation norms, advocating for collaboration through the lenses of international comity and reciprocity.
Moatswi disclosed the intensified effort by law enforcement to locate Ndovi following his no-show in court, and pointed to Botswana’s track record of extraditing two international fugitives from France and Zimbabwe in the previous year as evidence of the country’s relentless pursuit of legal integrity.
When probed about the potential implications of Ndovi’s case on Botswana’s forthcoming evaluation by the Financial Action Task Force (FATF), Moatswi reserved her speculations. She acknowledged the criticality of steering clear of blacklisting, suggesting that this singular case is unlikely to feature prominently in the FATF’s assessment criteria.