As four High Court judges Dr Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang dorn their judicial robes and return to work soon, there is growing concern in different quarters over the apology they tendered to President Ian Khama and the deal they have entered into. More questions than answers are raised by the deal brokered by the parties, who before Tuesday were sworn enemies in the hallowed halls of courtrooms. A review application launched by the quartet gave birth to numerous interlocutory applications, which they lost with huge legal costs. The standoff goes back two years ago to August 2015, when the quartet was slapped with suspensions. The apology statement signed by Secretary to Cabinet, clearly points to the involvement of the Executive arm of government. The Law Society of Botswana (LSB) has expressed disappointment at the apology. Its chairman, Kgalalelo Monthe, said the Council of the LSB is of the view that the judges did not need to go cap in hand to apologise to the Executive, especially the President. "Those judges never offended the President. The judiciary is utterly contaminated so much it begs the Executive for favours e.g. a pardon for a crime they never committed. Once judges -the last bastion of people who can stand and defend a principle- do that, apologise to the executive, what about ordinary members of society?" he asks a rhetorical question. Monthe said begging for forgiveness from Khama and the Executive has removed any semblance of independence, impartiality and doing their work without fear or favour in the judiciary. It is worrisome, he sums it up. According to LSB the judiciary in Botswana is now in the mud because the apology continues to erode ordinary public confidence in it. But we also need to ask, what sort of government would want judges to apologise to the Executive? asks Monthe. "I’m dumbfounded! A free, independent and robust judiciary is now a distant memory. It is dead. It is unpardonable for a serving Judge with an independent mind to go cap in hand to the Executive to tender an apology for a wrong s/he never committed. An apology opens up a possibility of the Executive extracting a pardon from the remaining judges who were not suspended. They too must be worried about this apology," he observes. He quickly adds that perception is greater than reality, and therefore it would take many years for the judges to try to restore public confidence. Monthe fails to understand the motive behind the apology, "because Khama is a lame duck President on his way out". It boggles the mind why the four judges would cry for pardon and declare allegiance with a regime on exit, he ponders. "We suspect they wilted under the many costs awarded against them in their several interlocutory applications. But we never expected that they would collapse completely like they did. There is a disconnect. In the fight for principle they could have reached out to the public about what was happening if they needed help," Monthe proposes. Monthe reiterates that the selective treatment of the judges, despite that they were accused of the same crime with others, will always raise eyebrows. He said overpayment happens all over the world but there are always accounting systems to address that. It can never be right that the judges were reported to the police for a minor administrative lapse, and later suspended when they complained about unfair treatment, he said. "A petition against a supervisor or employer is a right protected by the constitution, and that is the case in every workplace. It is not an offense that attracts punishment. A chief justice is a first among equals who should be equipped with instruments for proper corporate governance dictates. This matter should have been handled differently without bringing the judiciary into disrepute as it has done," he said.
'We are broke'
In a telling revelation Justice Letsididi says they succumbed and apologised because they had run out of funds to finance a legal battle against Khama. "From day one we were always fighting with our backs against the wall. The loss of our interlocutory applications with costs, including those we ought to have won, was always going to be a game changer. The lack of financial support was a major hindrance. Ultimately we realised the legal route was never going to bring positive results," he posted on social media. In a statement on Tuesday titled Judges Apologise to His Excellency the President and the Chief Justice, Carter Morupisi – the Permanent Secretary to the President – said on their own volition the judges had approached the President to apologise for their previous actions, which had resulted in their original suspension. Khama in turn agreed to lift the suspension from duty of the four Judges of the High Court and recalled the Tribunal established to investigate their conduct. According to Morupisi, the four judges subsequently agreed to a set of settlement proposals put forward by Khama. "That as a demonstration of reconciliation and willingness to overcome past events and move forward they withdraw their letter of 12th August 2015 to the Chief Justice, which had been copied to all Judges, including the allegations made therein; together with the further allegations made in the petition dated 17 August 2015, that had been addressed to the Judicial Service Commission. That they further withdraw their review case, which was pending before the High Court," wrote Morupisi, adding that the modalities of the assumption of duties by the four Judges will be made by Dibotelo. When the standoff started the AoJ denied that the suspension was over housing allowances. Instead they insisted that the judges were suspended for "misbehaviour" as captured in the petition and the letter they wrote to JSC complaining about Dibotelo's selective treatment when many other judges were similarly circumstanced on the housing allowance issue. Now Morupisi says, as part of their pardon, the judges have to offer to arrange terms of repayment of Housing Allowances that they had inappropriately received in the past. Despite denial by government, clearly the housing allowance issue was at the centre of the suspension after the four judges were reported to the police. The judges had, through a review application in court, sought to quash Khama's decision to appoint a tribunal to investigate them for possible dismissal, suspend them and withhold their car benefit during suspension, and the decision of JSC to report them to the police. The main application was never argued in court as the quartet launched numerous interlocutory applications to counter attempts by the state to frustrate their case. They lost all, with costs. The final nail was hammered in a month ago (February 2017), when in one week the court of appeal (CoA) and the high court dismissed two separate applications filed by the four judges, and another filed by LSB seeking to be admitted as friends of the court. CoA dismissed with costs the application for judges Leatile Dambe, Singh Walia and Zibani Makhwade to recuse themselves from the case. At the high court, the quartet was challenging the authenticity of court records of previous sessions as submitted by the Registrar.
Justice Solo, Nyamadzabo apology
LSB and public sector trade unions have been leading a public campaign calling for the removal of judges whose conduct raises questions about their fitness/ability to hold office. The controversial 2015 petition signed by 12 judges against the Chief Justice was wrought with controversy from the onset. Justices Professor Kholisani Solo, Barnabas Nyamazabo and Bengbame Sechele secretly withdrew their signatures and apologised to Khama and Dibotelo. Judge Nyamazabo said his decision to sign the petition was influenced by 'group think'. Khama removed Prof Solo from office on January 11 based on a report of a tribunal – made up of Judges Monametsi Gaongalelwe, Terrence Rannowane and Tebogo Tau – appointed to investigate his medical condition. The removal of Solo came amid growing calls inside and outside the legal fraternity for his removal after details of his apology, pledging allegiance to Khama and revealing that he remains indebted to Khama who came to his rescue during a moment of despair. Ever since the apology letter was leaked, Solo's reputation was on the line. In January 2016, Solo was cornered by attorney Sidney Pilane and forced to recuse himself from a case of unfair dismissal involving an Airport Operations Officer and his employer - CAAB. Pilane questioned his impartiality as an adjudicator in cases where the appointing authority, who is also the head of Executive, has an interest.
Between a rock and a hard place
Analysts agree that yes the judges apologised. They then submit that the nature of the apology was to the extent that it brought the judiciary into disrepute. Why was the apology given to Khama? Was the Chief Justice part of it? Also, the suspension was a result of a petition which was filed by 12 judges. Four initially withdrew and now these four have also withdrawn after being pardoned. That means four judges still have a valid petition. Have these other four been made to withdraw? Not according to the apology statement. Also since the remaining four have not withdrawn according to what information has been given to the public, is the JSC going to deal with the petition even if to say it has been considered unmeritorious? How then does Khama intervene on behalf of the JSC? This raises greater questions in respect of the independence of the Judiciary and the JSC. Was the JSC part of the settlement discussions? Now the CJ part of them, as the apology could only have been given to him. There was nothing to apologise to Khama for. Another issue, having appointed a judicial tribunal to investigate the Judges on what basis does Khama cancel it. Office of the President will argue that as the appointing authority he has the power to dissolve it under the Interpretation Act. But this answer flies in the face of Judicial independence as then the Executive can use this mechanism to extract exactly these sorts of concessions from the Judiciary. An ominous sign for Judicial independence. Critically also, the JSC filed a criminal complaint against the four judges with the police. Has this been withdrawn? If it has then by whom? Khama? It cannot be because that raises issues of separation of powers as well. Khama was not a party to the criminal case. That was between the JSC and the Judges. So did the JSC withdraw it? There is no mention of it in the apology statement. If it was withdrawn and such was done on Khama's instructions then the independence of the Directorate of Public Prosecutions (DPP) is non-existent as they have the sole power to institute or stop criminal investigations, subject of course to the power of the Attorney General (AG) in matters of national importance, which this would clearly be. But then was the AG involved in this settlement? That is not disclosed? One would therefore have to assume the acting AG was not involved, which in turn means that Khama is now assuming the powers of the DPP and the AG. The statement also raises another interesting issue. it says the judges have agreed to repay the housing allowance. Ok, but what is the amount that they must repay? The audit report which sets out the amount is being challenged by Justice Monametsi Gaongalelwe. So does this settlement include a recognition that the amounts are correct and does it therefore impact Gaongalelwe's case? In my view these issues are interlinked. Khama was being driven into a corner with the litigation. On one hand he sought to protect the Chief Justice against the criticism by judges under his supervision and on the other he did not want to discredit a CoA judge. He was caught between a rock and a hard place.
The political aspect
On a different reflection, some legal experts and political observers opine that Khama is leaving office in April 2018 and is obviously concerned about his legacy and the future of the political party he leads, the ruling Botswana Democratic Party (BDP). The fight with the judicial officers is giving legitimacy to complaints, both within his party and from outside as to his intrusions into the Judiciary. He would not want that as a personal legacy. So the quick fix solution. This is so, because in October 2015 -just three months after the issue spilled into public space- Molokomme tried to reach the same settlement between Khama and the four judges, a proposal the Judges were amenable to but the president refused to give an undertaking to withdraw the Tribunal. What has changed since then? What has made SKI agreeable now to terminate the Tribunal? Party factionalism and questions over succession? BDP relies on the popularity and good will of people to the Khama name. The continued standoff with the Judges undermines that good name; that is easy enough to ascertain with the public criticism of the role played by Khama in suspending the judges in the first place. In order to seek to restore that image the BDP needed to clear the air with the judges. Hence, the intervention of cabinet as demonstrated by the apology statement being issued by its Secretary who is identified as such. The battle with the judges had ceased to be legal, it had become increasingly political. For example, MP Edwin Batshu's statement in Parliament last year that the Industrial Court judges who fell into the same category as the four suspended judges, is indicative of the disagreement in the ruling party over the handling of the matter. Why treat judges differently? A crime is a crime no matter who commits it and what ministry they fall under. All in all this solution undermines the integrity of the judiciary and it is worrying.