SEEKING JUSTICE: The case in which four judges of the High Court four suspended judges Key Dingake, Mercy Garekwe, Ranier Busang and Modiri Letsididi want the court to declare invalid their suspension from the bench as well as the decision to appoint a tribunal to investigate them with potential for their removal from judicial office has been postponed to September 28th. President Khama has suspended them for receiving “undeserved accommodation allowances unlawfully”.
President Lt. Gen. Ian Khama has said that he was gravely troubled by the information that the four suspended judges Key Dingake, Mercy Garekwe, Ranier Busang and Modiri Letsididi received undeserved accommodation allowances unlawfully.
Subsequent to suspending the judges, Khama stated in court papers in a judicial marathon case this week that the suspended judges’ alleged misbehavior is that they had been for a considerable amount of time occupied residential accommodation provided for and paid by the government of Botswana whilst at the same time wrongfully receiving a housing allowance from government in lieu of such accommodation.
In the case, the suspended judges want the court to declare invalid their suspension from the bench as well as the decision to appoint a tribunal to investigate them with potential for their removal from judicial office.
A source observing the marathon case on Thursday outside court told Weekend Post that history is not on the suspended Judges’ side. “In African history it shows that if a president appoints a tribunal to investigate judges for misbehavior or whatever they may call it, they did not reappear at the bench,” he said, adding that the said judges are unlikely to come back.
In an answering affidavit filed before court President Khama pointed out that: “I was so gravely troubled by this information as, on the face of it, it implied the possible commission of a serious offence by honourable Judges of the High Court as to be driven to act in order to protect the integrity of the judiciary.”
In addition Khama asserted that he was also informed that following the initiation of the investigation the said judges wrote a letter to the Chief Justice and copied to all other Judges of the High Court and therefore was saddened by the development as well.
“I regard in a very serious light the contents and tone of such letter which, in my view undermines the authority of the Chief Justice of Botswana, and damaging to our judiciary,” he highlighted in the papers.
According to Khama, he is even more concerned about the subsequent letter of the 17th August 2015 which was co-authored by the suspended Judges together with “eight other judges,” which are not applicants in the matter. Although others believe the suspension of the four Judges to be a witch hunt on Justice Dingake as he is seen as a thorn on government side and “anti-government” in his rulings, speculations are rife on the other side that the other judges (eight) may be next on line.
Khama explains why the suspended Judges were not awarded hearing
According to President Khama in his affidavit, he explained that the Judges were not eligible to a hearing pre-suspension. “I did not afford the applicants (suspended Judges) a hearing before their suspension. I have been advised by my attorneys which advise I verily believe to be true that the applicants are not entitled to a pre suspension hearing,” he said.
Khama explained that the suspended judges’ right to be heard has been curtailed as they will be afforded an opportunity to be heard at the tribunal.
President disputes he is interfering in the judiciary
“I deny having any intention of interfering with the composition and functioning of the judiciary as alleged. I therefore deny any suggestion of mala fides on my part,” the President said.
Khama maintains the constitution of Botswana gives him powers
In his affidavit, Khama maintains that he has handled the matter in terms of the power reposed in him by the provisions of the constitution of Botswana and avers that he exercised his discretion judicially.
He stated: “in the circumstances and considering the gravity of this matter I undertook and exercised my discretion in terms of the provisions of the constitution to suspend the four applicants (four Judges) and wrote individual letters to them dated the 26th August 2015 notifying them of my decision as well as the basis thereof.”
Balance of convenience versus preservation of judicial integrity
The fourth president of Botswana has said that he does not take lightly assertions that his decision to suspend judges undermines judicial independence; the right to equal protection before the law and freedom of expression; as well as interfering with the suspended judges’ claimed right to work.
“Further contrary to the assertions of the applicants in their supplementary affidavit, the balance of convenience favours the preservation of the integrity of the judiciary,” he added.
The matter is not urgent – Khama maintains
In his answering affidavit before court, Khama says that he believes that the matter is not urgent. “I wish to emphasize that in the same letter of suspension I disclosed to the Judges that the suspensions will take effect on the 1st September 2015,” Khama highlighted. When suspending them, Khama wrote individual suspension letters to them dated 26th August 2015.
“Thus the applicants (suspended Judges) had sufficient notice not only of the decision to suspend them, but also as to when the said decision will be implemented.” “Consequently I am surprised that the applicants are seeking a stay of events that have already occurred at this hour when they had the opportunity to do so before the 1st September 2015,” he concluded.
Meanwhile the matter will be heard on 28 September before Justice Tebogo Tau who presides over the case as on Thursday he conceded the request to postpone the case by the attorneys of both parties; Attorney General Chambers representing the President as well Chibanda Makgalemele and Company for the suspended Judges.
Government is currently sitting on 4 400 vacant posts that remain unfilled in the civil service. This is notwithstanding the high unemployment rate in Botswana which has been exacerbated by the recent outbreak of the deadly COVID-19 pandemic.
Just before the burst of COVID-19, official data released by Statistics Botswana in January 2020, indicate that unemployment in Botswana has increased from 17.6 percent three years ago to 20.7 percent. “Unemployment rate went up by 3.1 percentage between the two periods, from 17.6 to 20.7 percent,” statistics point out.
Leading commercial bank, First National Bank Botswana (FNBB), expects the central bank to sharpen its monetary policy knife and cut the Bank Rate twice in the last quarter of 2020.
The bank expects a 25 basis point (bps) in the beginning of the last quarter, which is next month, and another shed by the same bps in December, making a total of 50 bps cut in the last quarter. According to the bank’s researchers, the central bank is now holding on to 4.25 percent for the time being pending for more informed data on the economic climate.
An audit of the accounts and records for the supply of food rations to the institutions in the Northern Region for the financial year-ended 31 March 2019 was carried out. According to Auditor General’s report and observations, there are weaknesses and shortcomings that were somehow addressed to the Accounting Officer for comments.
Auditor General, Pulane Letebele indicated on the report that, across all depots in the region that there had been instances where food items were short for periods ranging from 1 to 7 months in the institutions for a variety of reasons, including absence of regular contracts and supplier failures. The success of this programme is dependent on regular and reliable availability of the supplies to achieve its objective, the report said.
There would be instances where food items were returned from the feeding centers to the depots for reasons of spoilage or any other cause. In these cases, instances had been noted where these returns were not supported by any documentation, which could lead to these items being lost without trace.
The report further stressed that large quantities of various food items valued at over P772 thousand from different depots were damaged by rodents, and written off.Included in the write off were 13 538 (340ml) cartons of milk valued at P75 745. In this connection, the Auditor General says it is important that the warehouses be maintained to a standard where they would not be infested by rodents and other pests.
Still in the Northern region, the report noted that there is an outstanding matter relating to the supply of stewed steak (283×3.1kg cans) to the Maun depot which was allegedly defective. The steak had been supplied by Botswana Meat Commission to the depot in November 2016.
In March 2017 part of the consignment was reported to the supplier as defective, and was to be replaced. Even as there was no agreement reached between the parties regarding replacement, in 51 October 2018 the items in question were disposed of by destruction. This disposal represented a loss as the whole consignment had been paid for, according to the report.
“In my view, the loss resulted directly from failure by the depot managers to deal with the matter immediately upon receipt of the consignment and detection of the defects. Audit inspections during visits to Selibe Phikwe, Maun, Shakawe, Ghanzi and Francistown depots had raised a number of observations on points of detail related to the maintenance of records, reconciliations of stocks and related matters, which I drew to the attention of the Accounting Officer for comments,” Letebele said in her report.
In the Southern region, a scrutiny of the records for the control of stocks of food items in the Southern Region had indicated intermittent shortages of the various items, principally Tsabana, Malutu, Sunflower Oil and Milk which was mainly due to absence of subsisting contracts for the supply of these items.
“The contract for the supply of Tsabana to all depots expired in September 2018 and was not replaced by a substantive contract. The supplier contracts for these stocks should be so managed that the expiry of one contract is immediately followed by the commencement of the next.”
Suppliers who had been contracted to supply foodstuffs had failed to do so and no timely action had been taken to redress the situation to ensure continuity of supply of the food items, the report noted.
In one case, the report highlighted that the supplier was to manufacture and supply 1 136 metric tonnes of Malutu for a 4-months period from March 2019 to June 2019, but had been unable to honour the obligation. The situation was relieved by inter-depot transfers, at additional cost in transportation and subsistence expenses.
In another case, the contract was for the supply of Sunflower Oil to Mabutsane, where the supplier had also failed to deliver. Examination of the Molepolole depot Food Issues Register had indicated a number of instances where food items consigned to the various feeding centres had been returned for a variety of reasons, including food item available; no storage space; and in other cases the whole consignments were returned, and reasons not stated.
This is an indication of lack of proper management and monitoring of the affairs of the depot, which could result in losses from frequent movements of the food items concerned.The maintenance of accounting records in the region, typically in Letlhakeng, Tsabong, and Mabutsane was less than satisfactory, according to Auditor General’s report.
In these depots a number of instances had been noted where receipts and issues had not been recorded over long periods, resulting in incorrect balances reflected in the accounting records. This is a serious weakness which could lead to or result in losses without trace or detection, and is a contravention of Supplies Regulations and Procedures, Letebele said.
Similarly, consignments of a total of 892 bags of Malutu and 3 bags of beans from Tsabong depot to different feeding centres had not been received in those centres, and are considered lost. These are also not reflected in the Statement of Losses in the Annual Statements of Accounts for the same periods.