There have been calls by some for the Chief Justice (CJ), Maruping Dibotelo, to resign or be removed from office. The reasons given, among others, are that he once accused some judges and lawyers of forum shopping; he has a poor management style; and he has politicized an otherwise administrative issue of the four judges accused of wrongly receiving a housing allowance despite being accommodated in official residences. Since resignation is a voluntary exercise, in this article we consider whether or not the CJ should be removed from office.
In terms of section 97 (2) of the Constitution “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.” The question, therefore, is: do any of the aforesaid allegations against the CJ amount to inability to perform the functions of his office or to misbehavior? We discuss these in turn.
First, inability to perform the functions of his office. The CJ’s functions include judicious adjudication of cases and handing down judgments. In addition, in terms of section 95 of the Constitution, the CJ appoints places where the High Court sits (subsection (4)); “…makes rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it … (subsection (6)) and “…may appoint a Rules of Court Advisory Committee to assist him in reviewing and overhauling the rules made under subsection (6) and to advise on proposals to update and amend such rules.”
Further, in terms of section 103 of the Constitution, the CJ is the Chairman of the Judicial Service Commission (JSC). Presently, there are no allegations that the CJ is unable to perform these constitutional functions. His alleged failures are those based on the judges’ allegations and the Interim Audit Report which is said to have been filed with the court as an annexure to the CJ’s affidavit in the four judges’ case. Neither of these have been the subject of a hearing. Therefore, presently, it cannot be said with confidence and certainty that, judged objectively, the CJ is unable to perform his constitutional functions.
Second, misbehavior. Did the CJ misbehave when he talked about the possible existence of forum shopping? According to a speech delivered by the Chairperson of the Law Society of Botswana (LSB), Lawrence Lecha, at the ceremony of the opening of the 2014 legal year on 4th February 2014, the CJ “…issued a circular that sought to condemn in very strong terms the practice of Forum Shopping with a suggestion that bribery was the root cause.
Does the fact that the CJ spoke against such a malady not demonstrate that he is fit and proper to continue as CJ? Surprisingly, while, at the time, many, including lawyers and judges, criticized the CJ and called for an investigation on whether or not he is fit and proper to continue in office, no one called for an investigation on the truth or lack thereof of the allegations and/or concerns raised by the CJ. Can it be said that the CJ’s allegations, if he indeed made them, were so unfounded that they did not merit an enquiry?
Did the CJ misbehave when he, as alleged by the judges who signed the petition against him, threatened to destroy careers and to ensure that some judges never become CJ and thereby deliberately neglecting to exhaust internal remedies before referring the matter to the JSC? If he indeed said so such would be misbehavior. But, we cannot make a determination in this regard until this allegation is proved.
In terms of the natural justice audi alteram partem rule, to the extent that the CJ has not been given an opportunity to respond to these allegations and be found guilty by an independent body, no one can vouch for their veracity. It would, therefore, be unsafe to rely on the judges’ allegations to seal the CJ’s fate.
Did the CJ misbehave when he reported the housing allowance issue to the police before according the judges the right to an internal hearing? The JSC, through its Secretary, Michael Motlhabi, issued a statement published in Mmegi’s online edition of 14th August 2015 stating that “… the decision to refer the issue of wrongful payment and receipt of housing allowance for an independent investigation was that of the JSC as a whole, taken unanimously in good faith after a lengthy and searching debate. It was not, as suggested, a decision taken by the CJ alone…” Therefore, if this amounts to misbehavior it is the JSC that misbehaved not the CJ.
Did the CJ misbehave when he referred the housing allowance issue to the JSC before according the judges the right to an internal hearing? Though I believe the CJ erred in this regard, I do not believe that such indiscretion qualifies as misbehavior worthy of removal from office. It may be a misapplication of the law, but misapplication of the law is not necessarily misbehavior.
As shown by appeal courts’ reversal of lower courts’ decisions, magistrates and judges misapply the law every day, but they cannot be held to have misbehaved and be removed from office. Besides, we cannot say with certainty that the CJ misapplied the law until the matter is decided by the courts.
In my view, just like the CJ is entitled to a hearing to prove or disprove the allegations against him, he should not have referred the judges’ matter to the JSC before according them a hearing. The findings of an Audit Report can never be a substitute for an internal hearing because those against whom findings are made have the right to respond to the findings.
While the Auditors reportedly fault the judges for failing to notify the employer of receipt of the housing allowance especially that it occurred over a long period of time, the judges allege that they, or at least some of them, notified the employer, but the employer failed to stop the payments and to recover the money already paid to them.
Reportedly, the Auditors also fault the Administration of Justice Department for failing to make monthly salary reconciliations. They also blame the department for failing to issue a casualty return to recover the money from the judges. An independent internal enquiry could have determined liability with respect to this issue.
The enquiry could also investigate whether or not the judges could have used an alternative method to reimburse government. While some people have alluded to the fact that the judges could have paid back the money through the Revenue office, others counter this argument, arguing that the Revenue office cannot receive money in such a manner. This is another matter that an internal enquiry could have determined.
According to Mmegi’s online edition of 24th September 2015, Justice Dr. Key Dingake has deposed to an affidavit in which he states that “…Judge Garekwe denies that she was allocated the government house on 29 January 2014 or occupied the house from February 2014 to August 2015…This is supported by the fact that the Chief Justice was still in occupation of the house in question in February 2014…” This too could have been investigated by the internal enquiry.
In as much as the findings of an Audit Report cannot be a substitute for a hearing, neither can a section 97 tribunal. In terms of section 97(4) of the Constitution, “ where a tribunal appointed under subsection (3) of this section advises the President that a judge of the High Court ought to be removed from office for inability as aforesaid or for misbehavior, the President shall remove such judge from office.”
It is clear that the section 97 tribunal has the force of a court because its decision is final and the President is compelled to follow it. Also, challenging the President’s action in a court of law following the tribunal’s decision is likely to be a futile exercise. In terms of the doctrine of separation of powers, courts are unlikely to review the President’s decision since it is executive action, not administrative action.
According to Mmegi’s online edition of 24th September 2015, Justice Dr. Key Dingake has deposed to an affidavit in which he states that “…the report was purportedly commissioned by the Chief Justice on 4 August; the audit was undertaken from 5 August 2015 to 25 August 2015 and the report was completed on the 1st of September 2015…Therefore, the audit report could not have been the basis of the Chief Justice’s decision to refer the matter to the JSC as he did so on 7 August 2015, only three days after commissioning the audit.
The question is: if the CJ is not being truthful in terms of what informed his decision to refer the matter to the JSC, would this amount to misbehavior? In my view, it would, but in terms of the audi alteram partem rule confirmed by such cases as Masimolole v The Attorney General and Another  BLR 142 (CA), his guilt cannot be pronounced before according him the right to a hearing.
In view of the above, it is my view that to the extent that the CJ has not been accorded a hearing and found guilty of the aforesaid allegations it is improper to call for his removal or resignation. In the same manner that there are calls for the four judges to have been first accorded an internal hearing before referring their matter to the JSC, the police and the section 97 tribunal, the same calls should be made for the CJ. Failing to do so is double standards.
Judges’ security of tenure is entrenched by section 97 the Constitution. To protect this important principle, we should not allow a situation where calls for judges’ removal or resignation are made willy-nilly. To do so would compromise judicial independence since some calls for the resignation or removal of judges or the CJ may be motivated by irrelevant considerations which are inimical to judicial independence.
Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.
The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.
Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.
At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.
Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.
Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).
This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.
In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.
Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?
Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.
POSITIVITY Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.
“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)
We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions. Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”
Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.
Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be. You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”
Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.
When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.
Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.
However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.” “Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)
COMPASSION, MUTUAL LOVE AND RESPECT
Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.
It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.
Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.
Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.
The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.
It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.