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On the morning of 1 November, Botswana’s judge Gabriel Komboni was told by his personal assistant that the Chief Justice, Terrence Rannowane, wanted to see him. When he arrived in the CJ’s office, he was told that the CJ had decided to transfer him to Francistown with effect from January.
The reason given, according to Judge Komboni, was that he was needed to take over the workload of another judge, Barnabas Nyamadzabo, who was sworn in as chair of the independent electoral commission three months ago. Further, the CJ said, Judge Nyamadzabo needed to be in Gaborone to help in the preparations for elections.
Now Judge Komboni is preparing a judicial review of the decision, but in the meantime, he asked for an interim interdict barring the transfer from being implemented until the judicial review has been finalised.
According to Judge Komboni, the transfer was not lawful. He said the CJ had no legal authority to transfer any high court judge. That is the responsibility of the judicial service commission (which the CJ chairs).
But even if the CJ had authority to transfer a high court judge, the decision in this case was irrational, said Judge Komboni. That’s because it was not in any way intended to enhance the operational efficiency of the administration of justice. Instead, it was intended to enhance the influence of Judge Nyamadzabo in his election work.
It wasn’t clear what interest the CJ had in the running of elections, said Judge Komboni. He has ‘no statutory duty to oversee the running of elections or to assist in availing resources from the administration of justice for that purpose.’
A previous head of the IEC had overseen elections ‘without the need to be present in Gaborone’ and had served both as a judge and as chair of the IEC from Francistown.
Furthermore, there were several vacancies on the Gaborone high court, and the selection of himself to be transferred to Francistown seemed arbitrary, said Judge Komboni.
Next, he says he was not consulted prior to the decision that he should be transferred. He was simply informed of the CJ’s decision. None of the ingredients for a ‘meaningful consultation’ were complied with and ‘any alleged consultation was therefore a sham’. The rules of natural justice were breached, he concluded.
Judge Komboni further pointed out that he has a number of part-heard trials and ongoing application matters plus trials scheduled for 2023. Many of the matters involved litigants who are represented, and re-hearings from scratch would involve significant cost implications, he said.
‘I have taken an oath to uphold the rule of law and I would, in my respectful view, be acting inconsistently with my oath of office to abandon the part-heard matters so that the chairperson of the independent electoral commission, who is non-executive, can move to Gaborone.’
Then he briefly mentions the difficulties posed by the transfer at a personal and family level and adds that it was clear the transfer was ‘arbitrary, not in the public interest and gave well-grounded apprehension of harm.’
He says the CJ also told him he will refer him to the judicial service commission since he has refused to comply. Judge Komboni says this is not correct: he did not refuse to obey an instruction; he expressed his disagreement with the transfer decision and tried to persuade the CJ as to its unlawfulness in the hope that he would reconsider.
‘As you are not prepared to reconsider the instruction,’ said the judge, ‘it is my intention to apply to court to have it reviewed and set aside. I will abide by whatever the outcome of the review is. It follows there is no need nor is there any basis for a referral to the JSC.’
The latest development in the story is a decision by Judge Bulago Maripe on Wednesday, agreeing to grant an interim order restraining the CJ from carrying out his decision ‘to transfer the matter from Maun high court to Gaborone high court.’
Further, says the order, the CJ’s decision to appoint three named judges to preside over a case involving an aspect of this litigation ‘undermines judicial independence and is inconsistent with the constitution.’
Whether there is an ulterior motive behind the CJ’s order for this transfer remains to be seen, but at one point in the documentation Judge Komboni says it appears to him that the CJ is intent on getting rid of him.