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.
President Mokgweetsi Masisi has taken a stern but unpopular decision within the August House by putting to an end a hefty P403, 200 monthly budget directed towards legislators’ housing allowance.
Since the beginning of the 12th Parliament in November 2019, MPs have been staying in rented spaces. At first they were lodged at Avani hotel and a whooping P6, 2 million was paid by government for accommodation and meals for Members of Parliament and their spouses from October 31, to December 20, 2019.
Minister of Finance and Economic Development, Dr Thapelo Matsheka could be forced to provide a detailed explanation to a number of Botswana Democratic Party (BDP) backbenchers who are not impressed with Government expenditure for the 2020/21 financial year.
The unconvinced lot smell a rat and suggest that the Minister should furnish them with all the balance sheets for all the procurements and reports of all the transactions carried out by government from April 2020. This is so because within them, there is an air of disbelief in relation to the use of national funds by the powers that be.
The Botswana Patriotic Front (BPF) is adamant that opposition coalition, Umbrella for Democratic Change (UDC), will resolve the existing differences in the party leadership, despite fears that the wrangling will dissuade other opposition parties from joining forces.
However, sources from the BPF have indicated that, with or without the UDC the party is determined to move forward and carry on with its mandate. “UDC internal fights need to be resolved, the sooner the better. If they carry on they might cost us in the upcoming elections.”