No Key, No Justice!

SHARE   |   Monday, 15 January 2018   |   By Eddie Mdluli
No Key, No Justice!

The news that Judge Dingake was about to leave the Botswana bench to take up an appointment as Justice of the Supreme Court of Papua New Guinea in the South Pacific did not surprise many of us who have followed his trail blazing record in the service of the law. Papua New Guinea's gain is our loss. They discovered our diamond and snatched it from us. Judge Dingake holds a PhD in Constitutional Law from the premier University of Cape Town and his career straddles legal practice, academia and the judiciary. As a lawyer he has saved many people from the hangman's noose.  His charismatic oratory and extraordinary intellect made him an instant celebrity. He made a name for himself in cases of constitutional law and human rights. It was Justice Dingake – then a practising attorney – that some years back argued that the Industrial Court was not a court but a Tribunal given its composition and the manner of appointment of its judges. He made this argument in the course of persuading the Industrial Court that it had no power to order workers who were on strike to go back to work. He had sought to persuade the court that its order directing workers to report to work amounted to forced labour. Although he lost the case at least one Justice of Appeal was sympathetic to his arguments and cautioned the legislature to be careful in establishing courts. Judge Dingake's innovation and courage are legendary. I will never forget a time when, some years back, as a law lecturer, at the University of Botswana  he took up the cudgels on behalf of the student body,   in court, when the University was closed - seeking an order reversing the decision of the University Council to close the University. This was the very epitome of courage. I am actually informed by those who were close to the action that he and two of his colleagues Moeletsi and Molatlhegi were asked by the Dean to withdraw from representing the students and they refused risking to be fired. Dingake was the lead Counsel for the students!
As a result of his courage and fearlessness he was adulated as a champion of the underdog. He fought countless battles to protect the rights of students, women and workers. He once successfully challenged the regulations of Molepolole College of Education (MCE) which sought to exclude female students who fell pregnant from continuing their studies. Judge Dingake argued that to the extent that the College Regulations only targeted female students, not male students who made them pregnant same, were discriminatory against female students. The Court of Appeal agreed with him. As a Judge one simply has to read his countless decisions in the Botswana Law Reports to realise the impact they had in the society. He was a game changer. My friends who are lawyers inform me that one of the primary measures of greatness of a judge is the impact judge's decisions have on society at large. History would struggle to record his best decisions because there are many. They range from gender justice, child custody cases, powers of parliament, rights of single fathers and natural justice in the church. Lawyers say if there is any criticism against his judgements it is that sometimes they read like academic pieces! He tended to be forward looking and to buck against prevailing trends. One lawyer said to me: "Key was dangerous in the eyes of the establishment, not just because of his indisputable intellect but because of his dignified and stubborn courage".  He is regarded by many of his peers that I have spoken to as fearlessly fair - some going so far as saying, in relation to his eminent departure: "No Key, no Justice".
He is an acknowledged visionary, possessing extraordinary insights that allow him to transcend his time and articulate a far reaching purpose of law grounded on justice. I know of no Judge in our time who can claim such public adoration and affection as Judge Dingake. I followed him way back before I even imagined that I would one day have coffee at his house two decades ago. I attended all his court cases against the Government sometime last year, with the other three good judges, except for one court case during which I had unfortunately travelled out of the country.
Fare thee well my Lord. You will return much more well-rounded and richer! Fly the national flag in the Pacific and make us proud. Let that Key unlock the good name of Botswana to the world. Though this is not an obituary my eyes are full of tears and I shall stop right here.

Eddie Mdluli
Jackalas No 1



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