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.
New details about a suspected Motswana poacher arrested in Namibian and his accomplice who is on the run were revealed when the suspect appeared in court this week.
The Motswana Citizen who was shot and wounded by Namibia’s anti poaching unit is facing criminal charges under criminal case number (CR NO 10/06/2022) which was registered at the Divundu Police Station in the Mukwe constituency of the Kavango East Region on 10 June 2022.
It is alleged that a patrol team laid an ambush after discovering a giraffe’s fresh carcass in a snare wire and hanging biltong. According to the Charge Sheet, the suspect Djeke Dihutu, aged 40 years, is charged with contravening and transgressions of Nature Conservation Ordinance andcontravening Immigration Act 07 in Mahango Wildlife Core Area, Bwabwata National Park. Dihutu’s first court appearance was on the 17th of June 2022, Rundu and it was postponed to the 07 July 2022. He is currently hospitalized in hospital under Police Guards.
Commenting on this latest development, the Namibian Lives Matter Movement National Chairperson Sinvula Mudabeti applauded the Namibian Anti Poaching Unit for its compliance with what it called the universal instrument on the Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly resolution 34/169.
“We are aware that the duties of the police carry a great deal of risk, but our police has shown that they have a moral calling and obligation to protect even foreigners suspected of serious crimes on Namibian soil,” said Mudabeti.
According to him, whereas the Botswana Police Service, the Botswana Defence Force (BDF) and Directorate of Intelligence Service (DIS) have “very low moral ethics, integrity, accountability and honesty, the Namibian security agencies has shown very high levels of ethical leadership in the discharge of their duties even under duress.”
He said Namibian’s anti poaching unit has exercised one very important value, that is, the use of force only when it is reasonable and necessary. Mudabeti said this is in harmony with international best practices as enshrined in Article 2 of the UN instrument on law enforcement conduct, “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.
Our police have protected the life of a Botswana poacher and accorded him dignity, which is very foreign to our Botswana counterparts,” he said. He said article 3 of the same instrument above, calls for Law enforcement officials to use force only when strictly necessary and to the extent required for the performance of their duty.
“This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of suspected offenders, no force going beyond that was used by our Police,” he said.
Furthermore, Mudabeti said, whereas the universally accepted norm of the law of proportionality ordinarily permits the use of force by law enforcement, it is to be understood that such principles of proportionality in no case should be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.
“Our police have used force proportional to the situation at hand. Great work indeed! Article 6 urges law enforcement officials to ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required,” he said.
Mudabeti said the Botswana poacher was immediately taken to hospital whereas the Nchindo brothers who were captured on Namibian soil, beaten, tortured and executed while pleading to be taken to the hospital we left to die.
“The Namibian Doctor gave evidence in court that Sinvula Munyeme’s lungs showed signs of life (during the autopsy) and that he could have survived if he was accorded immediate medical assistance in time but was left to die while BDF soldiers looked and possibly ignored his cry for help,” he said.
Mudabeti said unlike in Botswana where there are no clear separation of powers between the BDF, Botswana Police Service, Department of Intelligence and their Directorate of Public Prosecutions,” we have a system that allows for checks and balances and allows our people and foreigners who are found on the wrong side of the law to be accorded the right to a fair trial.”
He said Botswana citizens are treated with dignity when apprehended in Namibia and not assaulted, tortured and executed. “We are a civilized country that respects international law in dealing with non-Namibian criminals. The Namibian Police have not mistreated the Botswana poacher but have given him the benefit of the doubt by allowing due processes of the law to be followed,” he said.
He added that, “We are a peace loving nation that has not repaid Botswana by the evil that Botswana has done to Namibia by killing more than 37 innocent and unarmed Namibians by the trigger happy BDF.” He concluded that, “Our acts of mercy in arresting Botswana citizens should never be mistaken for cowardice.”
The government has reportedly taken a decision to terminate provision of pool housing and subsidy for civil servants as it attempts to trim the public service wage bill.
This emerges in a dispute that is currently before the Labour Office headquarters lodged by unions representing thousands of civil servants across the country. This publication understands that the decision to cease providing pool housing and rental subsidy for public officers is part of proposals that government put on the table during its negotiations with public service unions in order for it to adjust salaries.
A letter from Labour Office addressed to the Directorate of Public Service Management (DPSM) shows that the directorate is cited as the First Respondent. The letter is titled, “Dispute lodged: Cessation of provision of pool housing and subsidy for pubic officers.”
“This serves as a notification and requirement to a mediation hearing,” the letter informed DPSM. According to the letter, the Botswana Teachers Union (BTU), Botswana Sectors of Educators Trade Unions (BOSETU) Botswana Nurses Union (BONU) and Botswana Land Board &Local Authorities &Health workers Union (BLLAHW) who lodged the complaint are cited as the Applicant.
“Please come for mediation hearing. The hearing will be conducted by Mr Lebang. The hearing is scheduled for date/time 29th June 2022, 09: 00HOURS at Block 8 District Labour Office, Gaborone. Please bring all relevant documents,” reads the letter in part.
According to a document described as a proposal paper on the negotiations on salaries and other conditions of employment of public officers by the employer (government), the government did not only propose to stop providing accommodation to civil servants but also put a number of proposals on the table.
The proposal papers states that the negotiations (which have since been concluded) cover three government financial years; 2022/23, 2023/24 and 2024/25. The government proposed an across the board salary adjustments as follows; 3% for the financial year 2022/23 effective 1st April 2022, across the board salary adjustment of 3.5% for the financial year 2023/24 effective 1st April 2023 subject to performance of the economy and across the board salary adjustment of 4% for the financial year 2024/25 effective 1st April 2024 subject to performance of the economy.
The government also proposed phasing out of retention and attractive (Scarce Skills) Allowance with a view to migration towards clean pay, renegotiate and set new timelines for all outstanding issues contained in the Collective Labour Agreement, executed by the employer and trade unions on the 27th August 2019, to ensure proper sequencing, alignment and proper implementation. The government also proposed to freeze public service recruitment for the 2022/23 financial year and withdraw the financial equivalence of P500 million attached to vacancies from Ministries, Department and Agencies (MDAs).
Another proposal included phasing out of commuted overtime allowance and payment of overtime in accordance with the law and review human resource policies during the financial year 2022/23, 2023/24 and 2024/25.
The government argued that its proposals were premised on affordability and sustainability adding that it was important to underscore that the review of salaries and conditions of service for public officers was taking place at a time when there were uncertainties both in the global and domestic economies.
“Furthermore there is need to ensure that any collective labour agreement that is concluded does not breach the fiscal deficit target of 4% of GDP,” the proposal paper stated. The proposal paper further indicated that beyond salary adjustments, the Government of Botswana is of the view that a more comprehensive consideration “must be taken on the issue of remuneration in the public service by embracing principles such as total rewards compensation which involves taking a fully comprehensive and holistic approach to how our organization compensates employees for the work.”
The proposal paper also noted that, “Clearly, the increase in salaries and changes to other conditions of service which have monetary consequences will further increase the proportion of the budget taken by salaries, allowances and other monetary based conditions of services.”
“The consequential effect would be a reduction of the portion that can be used for other recurrent budget needs (e.g. maintenance of assets, consumable supplies such as medicines and books) and for development projects,” the proposal states.
Opposition Botswana Patriotic Front (BPF) National Executive Committee will in no time investigate charges party members worked with the ruling Botswana Democratic Party (BDP) membership to tip the scales in favour of the latter for Serowe Sub-council Chairmanship in exchange for deputy seat in a dramatic 11th hour gentleman’s deal, leaving the ruling party splinter under the political microscope.
In a spectacular Sub-council election membership last Thursday, the ruling BDP’s Lesedi Phuthego beat Atamelang Thaga with 14 votes to 12 for Serowe Sub-council Chairmanship coveted seat and subsequently the ruling party’s councilor Bernard Kenosi withdrew his candidacy in the final hour for the equally admired deputy chair paving the way for Solomon Dikgang of BPF, seen as long sealed ‘I scratch your back and you scratch mine’ gentleman’s agreement between the contenders.
Both parties entered the race with a tie of votes torn between 12 councillors each, translating for election race that will go down to the wire definitely. But that will not be the case as two BPF councilors shifted their allegiance to the ruling party during the first race for Chairmanship held in a secret ballot and no sooner was the election concluded then the ruling party answered back by withdrawing its candidacy for the deputy chair position to give BPF’s Dikgang the post on a silver platter unopposed.
BPF councilor Vuyo Notha confirmed the incident in an interview on Wednesday, insisting the party NEC was determined to “investigate the matter soon”. “During the race for the Chairmanship, two more BPF voted for alongside the ruling party membership. It was clear Dikgang voted alongside the BDP as immediately after the vote for Chairmanship was concluded, Kenosi withdraw his candidacy to render Dikgang unopposed as a payback,” Notha added.
As for the other vote, Makolo ward councilor will not be drawn for the identity preferring instead to say: “BPF NEC will convene all the councilors to investigate the matter soon and we will take from there.” Notha will also not be drawn to conclude may be the culprit councilors could have defected to the ruling party silently.
“If they are no longer part of us they should say so and a by-election be called,” was all he could say. As it stands now, the law forbids sitting Councilors and Parliamentarians from crossing the floor to another party as to do so will immediately invite for a new election as dictated by the law. Incumbent politicians will therefore dare not venture for the unknown with a by-election that could definitely cost their political life and certainly their full benefits.
Notha could also not be dragged to link the culprit councilors actions to BPF Serowe region Chairperson Tebo Thokweng who has silently defected to the ruling party and currently employed by the party businessman and former candidate for Serowe West Moemedi Dijeng as PRO for the highly anticipated cattle abattoir project in Serowe.
“As for Thokweng he has not resigned from the party but from the region’s chairmanship,” he said. WeekendPost investigations suggest Thokweng is the secret snipper behind the recruitment drive of the votes for the elections and is determined to tear the party dominance in Serowe and the neighbouring villages asunder including in Palapye going forward.
This publication’s investigations also show BPF’s Radisele and UDC’s Mokgware/Mogome councilors are under the radar of investigations for the votes-themselves associated with the workings and operations of Thokweng.
“NEC will definitely leave no stone unturned with their investigations to get into the bottom of the matter. Disciplinary actions will follow certainly,” Notha concluded, underscoring the need to toe the party line to set a good precedent. For the youthful councilor, the actions of his peers has set a wrong precedent which has to be dealt with seriously to deter future culprits.