Chief Justice Forum Shopping attempts exposed
An attempt by Chief Justice Terrence Rannowane to move a case in which he is a party to, from Maun to Gaborone, has left him with an egg on the face.
This came after attorneys for Justice Gabriel Komboni interdicted him through the Maun High Court where they challenged the legality of his instructions to transfer the case to Gaborone and to be heard by a panel of three judges.
Justice Komboni of Gaborone High Court has taken the chief justice to court seeking an order by the court ordering and directing that the chief justice is interdicted and restrained from executing his decision to transfer the Applicant (Justice Komboni) from Gaborone High Court to Francistown High Court, pending the outcome of a review application to be filed.
In the case 1st respondent is Chief Justice Rannowane and the 2nd Respondent is the Judicial Service Commission (JSC) a body established in terms of the Constitution of Botswana, whose mandate includes the provision of oversight of administration of justice in the Higher Courts in Botswana.
Maun High Court Judge Professor Bugalo Maripe on Wednesday granted a rule nisi returnable on December 1st 2022 interdicting and restraining the chief Justice from executing his decision to transfer the matter from Maun High Court to Gaborone High Court.
The court also declared that the Chief Justice’s decision to appoint Justices Dr. Godfrey Radijeng, Tshegofatso Mogomotsi and Ookeditse Maphakwane to preside over the matter between Justice Komboni and Chief Justice undermines judicial independence and is inconsistent with Section 10 (9) of the Constitution.
In a letter dated 21st November 2022 by Collins Chilisa Consultants written to Maun High Court Judge President Godfrey Nthomiwa, attorney Mboki Chilisa revealed that they are in receipt of a letter from the Chief Justice, a party to the proceedings authored to Justice Nthomiwa.
He explained that they have since written to the Chief Justice advising that his (chief justice) instruction is illegal. The chief justice as a Judge has no authority to remove a matter properly allocated to another Judge of cognate jurisdiction, said Chilisa who called on Justice Nthomiwa not to comply with “patently unlawful instruction.”
Chilisa has revealed that they are dismayed that the Chief Justice Rannowane would want to exercise authority in respect of the establishment of a panel and decide who should form part of the panel. He said this conduct in their respectful view, is patently illegal because the Chief Justice is clearly conflicted.
“It is with greatest respect, improper for the Chief Justice to exercise authority in a matter in which the exercise of powers by him is being challenged. You have previously indicated in response to a complaint raised by the law firm of Duma Boko and Company about registration of a matter filed in Maun, in the case of Dumelang Saleshando and another v. Duma Boko N.O and Umbrella for Democratic Change - CASE NO. MAHMN-000043-22, where all the parties were based in Gaborone indicated that there is nothing wrong with filing it in Maun. We do not understand what the difference between this matter and the last matter is. As you are clearly an interested party, we will wait to get direction from the presiding Judge as to how to proceed,” Chilisa said in a letter to the Chief Justice served on Monday this week.
Chilisa explained in the letter copied to Justice Nthomiwa, Deputy Registrar (Maun), Collins Newsman and Company acting on behalf of Attorney General and the JSC Secretary, that if need be, an urgent application will be filed to review and set aside the empanelment and transfer of the file to Gaborone. The attorney argued that the exclusion of the Judge who had been allocated the matter raises concern the Chief Justice’s motives for constituting the panel in the manner that has set it up.
Chief Justice Rannowane has in July this year rejected a request by Duma Boko and Company lawfirm that their case be heard in Gaborone since all parties including attorneys reside in Gaborone and all affidavits were sworn and executed in Gaborone.
In his response the Chief Justice said, “litigants have a choice of forum as to where they register their cases. My advice to you is that since you are aggrieved by the registration of the above case at the Maun High Court Division you may, if so inclined, move an application before that court and motivate why the case should be transferred to the Gaborone Division of the High Court."
Justice Komboni in his founding affidavit said he was in terms of letter of appointment dated 9 July 2018, appointed as a Judge of the High Court of Botswana to be stationed in Gaborone following his acceptance of the offer on 11 July 2018.
“On 1 November 2022, I received a message at around 8am through my personal assistant that the Chief Justice was desirous of meeting with me, the purpose/agenda of the meeting was not communicated to me or my personal assistant.
“Upon meeting the Chief Justice on 1 November 2022, he advised me that he decided to transfer me to Francistown with effect from January 2023 in order to take up Judge Nyamadzabo's workload and for the latter to transfer to Gaborone.
“The need for Judge Nyamadzabo to be transferred to Gaborone was sought to be justified on the basis that he needs to be in Gaborone in order to assist in the preparation for elections, having been recently appointed Chairperson of the Independent Electoral Commission,” Justice Komboni said.
According to the Judge, as he was in shock, he did not immediately protest the decision. "Furthermore, I could not fully apply my mind to the decision of the 1st Respondent (Chief Justice) on the basis that I was under pressure to commence a murder trial the same morning at 9am," he said, adding that after adjournment of the trial and having gathered his thoughts, he telephoned the Chief Justice in the late afternoon of 1 November 2022 seeking audience in respect of his decision to transfer him to Francistown. “The Chief Justice in response indicated that he can only afford me 10 minutes.
At the meeting with the Chief Justice, I informed him that the transfer would destabilise my family and personal life. The Chief Justice insisted that prior to his appointment as Chief Justice he had been transferred numerous times and he never resisted.
“Upon realising that the First Respondent was not willing to hear and consider my representations, even before I concluded, I requested the Chief Justice to communicate his decision in writing and I was immediately informed that the letter of transfer was ready.”
According to Justice Komboni, he immediately delivered a letter to the Chief Justice on 2 November 2022 wherein he advanced reasons as to why he held the view that the Chief Justice's decision was unlawful and therefore enforceable.
He explained in the affidavit that subsequently, the Chief Justice responded to his letter dated 4th November 2022, stating that his decision to “transfer me still stands, and that he had noted my refusal to obey his purported lawful instruction and therefore he was going to refer me to the 2nd Respondent (JSC) for appropriate action.
“The decision to transfer me is Illegal as the Chief Justice has no legal authority to transfer any judge of the High Court. The transfer of a judge from one locality to another is an issue that falls squarely within the domain of the Judicial Service Commission.
“The duty to enhance the operation efficiency within the administration of justice does not extend to setting out the conditions of service of High Court judges and unilaterally varying the same. A transfer from one station to the next is clearly a variation of the terms of appointment and does not fall within the purview of the First Respondent's powers.
Even assuming that the Chief Justice has authority to transfer a judge of the High Court, his decision is irrational as it is not in any way intended to enhance operational efficiency within the administration of justice, but it is rather intended to bring to bear Justice Nyamadzabo's influence in the elections through the Independent Election Commission. It is not clear what the interest of the Chief Justice is in the running of elections in the country,” Justice Komboni averred.
He pointed out that the Chief Justice has no statutory duty to oversee the running of elections or to assist in availing resources from the administration of justice for that purpose.
Furthermore, Justice Mosojane stationed in Francistown for many years served as Chairperson of the Independent Electoral Commission and oversaw elections without the need to be present in Gaborone, he said, adding that his selection as the person to be transferred to Francistown also seems arbitrary.