Botswana: authorities must uphold independence of judiciary in impending impeachment proceedings against four judges

The ICJ expresses its deep concern at recent developments in Botswana in respect of impeachment proceedings initiated against four judges and their suspension from office pending a disciplinary hearing.

The four judges, constituting one-third of the 12 Member High Court of Botswana, Justices Key Dingake, Modiri Letsididi, Ranier Busang and Mercy Garekwe, were suspended under section 97 of the Botswana Constitution on allegations of misconduct and bringing the name of the judiciary into disrepute.

The ICJ calls on all involved judicial and executive authorities to scrupulously respect the principles governing the independence of the judiciary in their conduct in addressing this serious situation, including in their actions throughout the course of any impeachment and disciplinary proceedings.

On 28 August 2015, the President of Botswana, Ian Khama, suspended the four judges after they, along with the other eight members of the Court, signed a petition directed to the Chief Justice.

The petition had objected, among other things, to alleged poor conditions of service, as well as disparaging comments the Chief Justice was said have made about another judge’s ethnicity and defamatory statements related to corruption.

The petition also advocated for the Chief Justice’s impeachment and was copied to all judges of the High Court.

The Chief Justice and the President took issue with the contents and tone of the petition, alleging it to be disrespectful of the Chief Justice and causing disrepute of the judiciary in the eyes of members of the public.

On the 4th of September 2015, the Law Society of Botswana (LSB) issued a statement in which it condemned the actions taken by the Chief Justice and President against the four judges.

The LSB considered that the case ought to have been resolved administratively rather than through what it said was “selective” impeachment of only four out of the 12 judges, particularly as no prima facie evidence existed that a crime had been committed.

The LSB alleged that “the selective approach in suspending and subjecting to a Tribunal only four (4) of the twelve (12) Judges who had signed the Petition, supported the widely held view that the action was a witch-hunt intended to remove certain Judges and ensure a more Executive Minded Bench.”

On the 23rd of September 2015, the LSB issued another statement following reports that three of the 12 judges had withdrawn their signatures to the petition after the judges had been “offered an ‘amnesty’ against any possible action being taken against them if they retract their association and / or apologise”.

The LSB went on to criticize an amnesty “made only to a select few of the Judges and not all” the 12 judges who signed the petition.

On 24 September 2015, the LSB issued a further statement calling on the Chief Justice to resign or face impeachment after the JSC offered amnesty to three other judges, who had signed or associated themselves with the petition.

The amnesty extended to any possible action being taken against them if they retracted their association and / or apologized. The offer of amnesty was not made to all 12 judges that had signed the petition, and in particular, it was not made to the four suspended judges.

On 28 September 2015, the Impeachment tribunal was to have commenced hearing of the matter, but the four concerned judges instituted litigation against appointment of the Tribunal and their suspension, which litigation is still pending.

Since then, the courts have been irregularly issuing instructions, contrary to proper procedure, through the Registrar of the High Court in the pending litigation, and given that the Registrar is party to the litigation, this creates an inherent conflict of interest.

These developments surrounding this case have raised serious concerns over the independence of the judiciary generally but more specifically the prospects for an independent, impartial and fair hearing for the suspended judges.

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