Wednesday, October 28, 2020

Chief Justice courts controversy in BMD/UDC case

Chief Justice, Terence Rannowane has sparked controversy by appointing Justices Tebogo Tau, Bashi Moesi and Tshepo Motswagole to hear the case in which Botswana Movement for Democracy (BMD) is challenging its expulsion from the Umbrella for Democratic Change (UDC).

Ramalepa Attorneys acting for the BMD On December 7th filed an application for a judicial review of the decision by the UDC to expel the BMD. Together with the court proceedings the attorneys wrote to the Chief Justice requesting that he acts in accordance with the provisions of the High Court Act and appoint a full panel of judges to hear the case.

Despite the court process having been issued on the same day, December 7th, the BMD did not to serve the application on the UDC and its attorneys until it had received a response from the Chief Justice on its request to empanel a full bench. Court documents reveal that the Chief Justice consented to the BMD request on December 13th, and that the UDC was only subsequently served with the application on the morning of December 14th.

Court papers reveal that the computerised case management system selected Justice Motswagole  to be the presiding judge, but in a break with norm and common practice the Chief Justice did not wait for proof that the application and the request to empanel a full bench had been served on all parties to the litigation, nor was the matter placed before Justice Motswagole for the BMD to apply, formally for the case to be allocated a full panel.

The Sunday Standard can reveal that in recent consultations between the Chief Justice and fellow High Court judges, it was agreed that the process for empanelling judges and how they are appointed to the panel required greater transparency. The Chief Justice and High Court justices resolved that amendments would be made to subsidiary legislation that would ensure judges were appointed to hear cases only through the computerised case management system. In spite of the resolution by the judges, it has not been implemented. 

Investigations into past cases involving disputes between members of political parties, and internal conflicts within political parties by the Sunday Standard reveals that the only case that resulted in empanelling a full bench by the court was the “Motswaledi case.” In that case the need to empanel a full bench arose when former president Khama invoked presidential immunity under section 41 of the national Constitution. The court was required to determine question of law relating to the national constitution and not only issues arising from the party constitution. Other cases of conflict between political parties and their members, even those relating to prominent personalities and issues of expulsions from political parties have not, in the past been heard by a full panel of judges.

BMD in its request for a full panel argued that the case has been the subject of “public discourse”, that it is “not only political” but “complex” and “emotive” and “much anticipated.” By agreeing to empanel a full bench without allowing the UDC and its lawyers to make representations the Chief Justice may have given the impression on the application that may impact on the case itself, argued a lawyer reached for comment by the Sunday Standard, “Our courts, and courts in other jurisdictions have repeatedly ruled on the courts are in general reluctant to interfere with internal disputes of political parties, certain relief are not available to litigants, such as reviews, because they involve interests of private law and not public law, by making a determination that this matter invokes consideration of public law and interest, without having the benefit of hearing from both sides, the court may have created an impression that could have been avoided if there had been openness and transparency in the process of empanelling,” argued the attorney on request from anonymity.  

The High Court Act provides that cases shall be heard by a single judge but that the Chief Justice may determine such other number of judges to hear a case, the Act does not provide the circumstances in which he is authorised to do so. The controversy arises as to whether the Chief Justice has the authority to personally select the judges to hear a case. As with past cases, most recently with the Botswana Congress Party’s (BCP) challenge on automatic succession of the presidency in which the Chief Justice has appointed a full panel, controversy has arisen as to how the judges are selected.

Legal experts and proponents for transparency within the judiciary argue that the Chief Justice only has the power to determine the number of judges but no authority to approach judges and personally select judges to preside on cases. They argue that the computerised system should be used to decide the judges once the chief justice has decided to appoint more than one judge to hear a case, “the idea that the Chief Justice has the authority to allocate cases to judges of his choice can create flies in the face of principles of judicial independence and transparency and may create an impression of interference in the judicial process, particularly because there is a system in place that automatically selects judges and only one side was allowed to make representations,” states the lawyers contacted by Sunday Standard.

In his letter to Justices Moesi and Tau dated December 13th, the Chief Justice refers to his and the judges “earlier consultations,” regarding the case. Critically the Chief Justice indicates that the “issues involved in the case are of great public and national interest and warrants an appointment of a panel in terms of Section 6 of the High Court Act (CAP 04:02) Laws of Botswana.”

The Sunday Standard can confirm that the Umbrella for Democratic Change has engaged Bayford and Associates together with Monthe Marumo to lead their defence against the BMD application.

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