Botswana Federation of Public Sector Unions (BOFEPUSU) has written a letter to President Ian Khama to remove the three High Court judges who wrote to the Judicial Service Commission (JSC) apologising for supporting the four suspended high court judges. In a letter dated 2nd of October 2015, BOFEPUSU through its Deputy Secretary General Ketlhalefile Motshegwa said they are of the view that the three judges Kholisani Solo, Barnabas Nyamadzabo and Bengbame Sechele of the High Court have acted in a manner which gives rise to the question of their removal under section 97 of the Constitution of Botswana and, thus, ought to be investigated under the said section.
BOFEPSU called on Khama to invoke the powers vested in him by the Constitution to set up a Tribunal to investigate the said judges’ fitness to hold judicial office. In their argument BOFEPUSU said the three judges, who had earlier with other eight judges, written a letter to the JSC on the 17th of August 2015 titled "Leadership crisis in the judiciary" are not fit to hold judicial office. BOFEPUSU said that Judge Solo’s conduct by disassociating himself with each and every word constitutes misbehavior which warrants removal as a judge under section 97 of the Constitution.
“A judge who expresses his loyalty to the appointing authority and the Chief Justice (CJ) instead of the Constitution is, in our considered view, not fit to hold judicial office and ought to be removed as such,” reads part of the letter. It is reported that Judge Solo in his letter to the JSC expressed his loyalty to the Chief Justice and the appointing authority who he alleges stood for his appointment when he was in a moment of despair. BOFEPUSU called on Khama to constitute a Tribunal which will question Judge Solo and what he meant when he said that President Khama stood by him during his appointment when he was in a “moment of despair”.
BOFEPUSU said the Tribunal and indeed the public at large would like to know what this moment of despair was and whether or not in view of that moment, he was a proper candidate for appointment as a judge in the first place. “On the face of it, the conduct of Judge Solo in pledging his loyalty to you and the CJ is in breach of Chapter 2 (judicial independence) and Chapter 3 (judicial integrity) of the Judicial Code of Conduct (“the Code”),” said BOFEPUSU.
On Justice Nyamadzabo, BOFEPUSU said that should Khama constitute the Tribunal, he (Nyamadzabo) must advise it on what he meant by being “caught up in the group think which often results in poor quality decision making.” They said that he must show why he mysteriously turned around to withdraw his participation without a valid reason and to demonstrate that he is fit enough to be a judge of the High Court of Botswana.
Judge Sechele, according to BOFEPUSU, must also explain his mysterious retraction of serious allegations of and concerning another judicial officer. They said that the letters purporting to withdraw the allegations against the CJ are vague as there are no explanations on why the very serious allegations were made and communicated to the JSC and the CJ. “Judicial officers cannot just make scathing attacks on another judge and purport to withdraw same without taking the JSC and/or the public into their confidence,” wrote Motshegwa.
He added that the three judges must tell the JSC and the public why they made the serious allegations and why they are withdrawing the same in sufficient detail to enable the public to determine whether or not they are not compromised. Anything less would be in violation of the requirement relating to the integrity of a judicial officer, reasoned the federation. BOFEPUSU’s call on the removal of the three judges follows that of Botswana Public Employees Union (BOPEU) who threatened to take Khama to court if he does not remove the three judges.
Asked what action they will take, should Khama not heed their call, Motshegwa said that they will cross the bridge when they get there. “We want to give the President the benefit of the doubt. It won’t be right for us to come up with another alternative,” he said. In a letter leaked to the media in August the three judges and eight others addressed a letter to the JSC in which they accused Dibotelo of his avowed intention to destroy careers and his persistent divisiveness characterised by gossip, for instance pitting one judge against another, magistrate against magistrate.
Dibotelo, who reported the judges to the police for being paid housing allowances while they were staying in institutional houses, was also accused of his propensity to spread slanderous and defamatory comments about everybody and persistent tribal and racist remarks about judges including those in the Court of Appeal. The letter, which was addressed to JSC and Khama, also called for the impeachment of the Chief Justice.
In response Khama suspended Justice Dr Key Dingake, Justice Modiri Letsididi, Justice Mercy Garekwe and Justice Rainer Busang, saying they were disrespecting the Chief Justice. He then constituted a Tribunal to investigate the four judges’ fitness to hold office. The four judges took Khama to court calling for the suspension of the tribunal, saying that it is unconstitutional.
Judge Tebogo Tau is expected to deliver judgment on the case next week Tuesday after the two parties made their arguments last Monday.