The latest edition of the Economic Freedom of the World Index shows that the ugly public battle between former Chief Justice Maruping Dibotelo and President Ian Khama on one side and 12 High Court judges on the other dragged down Botswana’s score on judicial independence.
When the battle began in 2015, Botswana’s scored 5.94 for “judicial independence” and 5.87 for “impartial courts.” The battle dragged on for two years, ending in early 2017 when the suspension of the judges was lifted. The score the index awarded Botswana for 2018 demonstrates the damage that had already been done: the country scored 5.91 for “judicial independence” (the lowest it has been since 1980) and 5.56 for “impartial courts”, the lowest since 1990.
The judges had signed a controversial petition that was critical of Dibotelo’s stewardship of the judiciary and four (Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang) were suspended. There was dissension in the ranks as the other eight judges apologised and withdrew from the petition.
The charge against the four judges was that they had drawn housing allowance they were not entitled to. President Ian Khama suspended them and Dibotelo reported the matter to the police. The four judges challenged their suspension at the High Court. In the course of this saga, it emerged (through a leaked audit report) that some other judges had done the exact same thing that the quartet was suspended for with no punitive action ever taken against them.
The suspended judges asserted that their suspension was not motivated by the housing allowance issue but rather their role in a petition against Dibotelo. Titled, “Leadership Crisis in the Judiciary”, the petition alleged that among other failings, Dibotelo had threatened to destroy the careers of the petitioners and that his “intense belief in witchcraft” had strained his personal relations with judge colleagues and other members of staff.
“He persistently says that his traditional doctor informs him that judges and members of staff are bewitching him and that this rainy season lightning will strike with catastrophic effect,” the August 2015 petition reads.
Another case that is sure to have affected Botswana’s score on “judicial independence” relates to the appointment of Omphemetse Motumise to the bench. While the Judicial Services Commission had recommended that Khama should appoint Motumise to the bench, he chose not to. Khama’s decision precipitated a two-year saga that ended with a Court of Appeal ruling that a JSC recommendation didn’t give the president any discretion. Only then did Motumise join the bench. The Motumise saga happened about the same time as that of the suspended judges.
For a country like Botswana that wants to diversify its economy by attracting foreign investors, the Economic Freedom of the World Index is very important. Before investing their money in foreign jurisdictions, investors want to know about how such countries perform in terms of judicial independence and impartiality of the courts and refer to reports such as the Index.
Given the role that he played and the power that the constitution concentrates in the presidency, Khama is largely responsible for the dismal score in the latest report. Ironically, the former president recently lamented the decline of the rule of law under the “regime” of his successor, President Mokgweetsi Masisi.