The Chief Justice, His Lordship Justice Maruping Dibotelo, is reportedly vacating the highest office in the Administration of Justice at the end of this month. Considering how long he has served the legal fraternity by wearing so many hats, it is fair and proper to wish him a happy retirement. He has run his race. The painful thing though is that like the immediate past President who has left Botswana a more troubled country than the one he inherited, the outgoing Chief Justice leaves the other arm of government he led, also a troubled one more probably than he inherited it. During the Chief Justice’s tenure, the judiciary has been in the news for all the wrong reasons-a stain he somewhat allowed to manifest yet he had, so I thought, the wherewithal to avoid. This state of affairs, I am afraid, has become a defining moment for many individuals who would have held and exercised public power in one form or the other yet when they relinquish it, voluntarily or otherwise, it is under a serious dark cloud of controversial decisions in their varied facets.
It will be grossly unfair not to mention that under Chief Justice Dibotelo’s tenure, visible infrastructural developments were undertaken in terms of but not limited to the flagship Gaborone High Court and others as an endeavour to take justice to the people; number of local high court judges fairly increasing though women are still in the periphery; attempts to transform the composition of the Court of Appeal by increasing the number of local judges; establishment of the small claims court; proposed judge to deal with corruption cases though this is yet to be realised; establishment of the case management system to eradicate judge shopping where lawyers would manipulate court processes for preferred judges to hear their cases. Acknowledging these and other compelling achievements and justifiably so, the saying that it is not how you begin but how you end that would define the Chief Justice’s tenure of office.
The trouble in the judiciary perhaps became more evident to us the poor souls at the judicial conference held in Mahalapye in 2015 where judges raised pertinent issues which negatively, they suggested, impacted their judicial functions one way or the other. Among these were that judges demanded continuous training to enhance the capacity of their offices together with their support staff. The Chief Justice was reportedly unhappy with the judges’ concerns whereupon he became ‘combative and confrontational’ to the extent of threatening to destroy their careers and to expose those who had unduly received housing allowances. For me, this conduct by the Chief Justice did not only exhibit utter lack of responsive and responsible leadership expected of him, but that he somewhat hated his colleagues with contempt. Ending someone’s career let alone the one you supervise is no small matter. He also allegedly threatened to ensure that they will never become Chief Justice on the basis that they are not fit and proper to do so. These by no small measure, should have attracted an inquiry on the fitness and properness of him to continue occupying the office of Chief Justice. Subsequently, judges decided to petition him for these and other matters from which as it is public knowledge, some were suspended; some begging cap in hand for forgiveness; some revealing that they were influenced by group thinking while some pledged loyalty to the former President on account that he had removed them from the jaws of being nobodys. The petition to this day and as far as I can recall, has not been responded to whereupon issues raised therein still remain.
Just why the Chief Justice failed to administratively deal with the housing allowance and the petition issues within the confines of his office or at worst at the Judicial Service Commission (LSB) beats me. Some of the judges have not disputed the fact that they unduly received the housing allowance and were prepared to repay it. It was a matter of recovering the money through the readily available government processes and procedures as was the case with Industrial Court judges. As if this was not enough, a confidential audit report titled “Interim Internal Audit Report” and allegedly authorised by the Chief Justice on housing allowance revealed that some judges who had also unduly received it were not reported to the police as were the others who were suspended. The Law Society of Botswana amongst others, felt this was selective and malicious act by the Chief Justice.
The Chief Justice, in his capacity as the Chairman of JSC, has had running battles with the Law Society of Botswana on many fundamental issues which due to space constraint, I cannot mention all herein. However, notable among these is the manner of appointment of judges as in the case of the self-generated controversy in the Justice Motumise appointment. The LSB issued a statement in this regard titled ‘Statement of Litigation-Appointment of Judges’ dated 30th March 2015 and signed off by its then Vice Chairman.
Recently, Draft Judicial Service Regulations and Application for Appointment as a Judge of the High Court were pronounced. While on the surface these proposals look genuine, it would appear that there is more to them than meets the eye. Those who apply for judgeship will for example, be vetted by the executive friendly DIS for a number of questionable personal details like political background of the would-be judges which in my view, is a ploy to disqualify deserving candidates on account of their political lineage. It is not clear to me whether all critical judicial stakeholders were involved and endorsed these proposals.
Maybe as a last parting short, the Chief Justice is reported to have ‘unlawfully’ added two judges to hear the BCP case challenging the constitutionality of Rre Masisi’s ascendancy to the presidency. It is argued by those who know that while the Chief Justice can increase the number of judges to hear any matter under the High Court Act, he does not have the authority to personally choose such judges. If this argument is valid, it could be argued, rightly or wrongly, that the Chief Justice added these two judges ‘to facilitate a preferred outcome’ of the matter. I am saying this in the context of the perceived or real acrimony in the overall judiciary narrative. No offence is therefore intended.
Particularly after 2015, the executive sphere of influence in the judiciary has substantially increased. Like I have alluded to above, the executive unnecessarily played a prominent role in the housing allowance matter. This was a purely internal administration of justice matter which the Chief Justice should have dealt with and resolved without allowing the intrusion of the executive arm of government to contaminate it. After the Court of Appeal ruling that the former President appoint Justice Motumise a High Court judge, the former President grudgingly did so after a long wild goose chase. This was borne out of the attitude and may be the ‘false impression’ of the former President that no arm of government could or should direct him on whatever matter.