Chief Justice accused of forum shopping

| September 7, 2015

The landmark case in which the Law Society of Botswana (LSB) and senior attorney Omphemetse Motumise are suing President Ian Khama for disregarding recommendations of the Judicial Service Commission (JSC) to appoint Motumise to the bench took an interesting twist this week, when fresh allegations of conflict of interest and forum shopping emerged against Chief Justice, Maruping Dibotelo.

Sunday Standard is in possession of a speech, allegedly made by Justice Dibotelo to a Southern African Chief Justices Forum in August, in which he states that he personally set up a panel of three Judges of the High Court to preside over the case filed by the LSB.

“I wish to preface my presentation by informing you from the onset of the invidious position that I find myself in. Recently I set up a panel of three Judges of the High Court to preside over a case filed by the LSB, wherein it is suing President Khama and the JSC, of which I am chairman,” said Chief Justice Dibotelo.

He further explained that the LSB is challenging the decision of the President not to appoint as Judge a candidate who had been recommended by the JSC, and seeking a declaratory order that the President is bound to follow and implement the advice of the JSC. Justice Dibotelo was a lead speaker on a panel to discuss the importance of appointment procedures in ensuring judicial accountability and independence of the bench. Cognisant of the sub judice rule, the Chief Justice said he would avoid making any comments or statements which may be interpreted otherwise.

However, he went on to state that the JSC is of the view that the President’s powers to appoint Judges are executive in nature and therefore not reviewable. Further, said Justice Dibotelo, while the JSC embraces the principle of transparency in the interview process, it is of the view that this must be balanced with other competing interests such as sensitive information relating to candidates’ private and social lives.

The Chief Justice’s speech rubbed lawyers who are representing the LSB and Motumise the wrong way, as they felt that he was directly conflicted and therefore could not appoint High Court Judges to preside over the matter. The High Court had nominated Justices, Lakvinder Walia, Abednico Tafa and Phadi Solomon to preside over the lawsuit against Khama and the JSC. However, Sunday Standard is informed that while the names of other Judges were written by a computer, Justice Solomon’s name was written with a felt pen.

The LSB then wrote a letter to Michael Motlhabi, Registrar of the High Court, enquiring as to what system was used to appoint the three Judges to preside over the case. They were surprised when Motlhabi responded in his capacity not as Registrar of the High Court but as Secretary of the JSC, indicating that the JSC had chosen not to comment on the matter as it was still before the courts. The LSB attorneys responded, reminding Motlhabi that they wrote to him as Registrar of the High Court and not as Secretary of the JSC.

“We never heard from him since,” they said.

What incensed the LSB more was the decision of the Chief Justice not to respond to their enquiries on who set up the panel of three Judges, rather choosing to brief other people who were not party to the matter. They also accused the Chief Justice of conflict of interest, saying he did not qualify to appoint the panel of three Judges as he is party to the matter before court, in his capacity as chairman of the JSC, which is cited as a second respondent in the matter.

“Why was the panel of three Judges appointed by the Chief Justice and not the judicial case management system? In terms of the High Court Act and Rules, the Chief Justice can decide that there should be a panel of Judges, but he cannot appoint the panel, even if he was not party to the proceedings,” they said.

When commenting on the issue, attorney Tshiamo Rantao said his clients were worried by the turn of events in view of the fact that their attempts to engage the Registrar on how the panel was constituted were rebuffed.

“Our clients have made it very clear that they do not doubt the credibility of the Judges, and the matter is not about them personally, but rather the manner in which they were appointed. The issue of forum shopping tarnishes the public’s perception of the judiciary,” he said.

“That the Chief Justice appointed Judges to determine a case in which he as chairman of the JSC has a direct interest is reviewable by law, and our clients are considering the way forward.”

It is not the first time that the issue of forum shopping has caused tremors within the judiciary. In 2013, the Chief Justice was forced to apologise after he accused lawyers of forum shopping, saying his investigations have revealed that they were conniving with some employees of the court to temper with the registration and allocating system to make it possible for particular matters to be allocated to a preferred judge.

“God forbid that those Judges who are said to be sympathetic to the cases of attorneys involved in such sordid practices do not get any benefit or greasing of their hands,” said Justice Dibotelo at the time.

?He later issued a public apology, saying his statements were never intended to impute impropriety on the Judges. ??“To the extent that I was understood to impute that Judges are corruptible I have unequivocally apologized to them and assure the public that they have a corruption free judiciary that is acknowledged for its integrity, independence and impartiality,” he said.

However, he reiterated his earlier stance that forum shopping was a matter of grave concern, saying it cannot be acceptable that clients or their lawyers pick and choose who of the Judges should preside over their cases as that gives the impression that Judges are not independent and impartial. In a telephone interview, Clement Sibanda, spokesperson for the Administration of Justice, said he could not comment on the matter as he had not seen the said speech.

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