Botswana’s has been sent into a whirl of speculation over who is responsible for what is probably the biggest leak in the history of the country’s judiciary.
It is apparent that last week’s Court of Appeal verdict was leaked to both former President Ian Khama and the Directorate of Intelligence and Security Services (DIS) before it was made public.
This was in a case in which the DIS had appealed a High Court decision denying them a warrant to search State House 4, Khama’s official residence where they believe he has kept multiple illegal firearms and ammunition.
In what is probably the biggest violation of the High Court confidentiality ever, hours before the Court of Appeal could announced its verdict, the two parties to the politically charged legal dispute appeared to have learned through back channels that the judgement had been made in favour of Khama against the DIS.
The apparent leak of the Court of Appeal majority opinion which arose from a split decision stocked growing fears that Botswana’s judiciary is politicized.
Suggestions that Botswana’s judiciary has become politicized are a potential problem for an institution that relies on public credibility and goodwill to be able to enforce its decisions.
The leak of a Court of Appeal verdict is a highly unusual occurrence in Botswana’s judiciary. Local lawyers and other court watchers say they cannot recall a previous instance before last week’s incident.
Hours before the Court of Appeal made it verdict, Sunday Standard published an online story in which a source close to the former President claimed that they had been tipped by a source that judgement had been decided in favour of Khama against the DIS.
Quizzed by the Sunday Standard on the allegations, a few hours before the Court of Appeal delivered the judgement, Khama would not comment on the claims. He however told the Sunday Standard that it was apparent that information about the outcome of the case had been leaked to the DIS.
This was after the DIS proceeded to search Khama’s official residence before the CoA could pronounce judgement. In an interview, Khama told Sunday Standard that, “It is true they went in there last night until now. No search warrant was presented. As the judgement is being delivered today it is surprising that that the DIS did not wait. Clearly they were given prior knowledge of the outcome which is typical.”
In another incident suggesting that the DIS was aware of the Court of Appeal verdict, shortly before the Court of Appeal could deliver judgement, the spy outfit made an attempt to withdraw its appeal. Their attempt was however thwarted by the judge President Tebogo Tau citing public interest.
The apparent leak is a particular blow to the country’s judiciary which for the past few months has suffered an erosion of public trust.
The judiciary suffered a huge setback a few months ago when confidential correspondence between the Chief Justice Terrence Rannowane, Justice Ketlogetswe and President Mokgweetsi Masisi detailing how the independence of the judiciary has been compromised, was made public.
In the weeks leading to the apparent leak, the Court of Appeal seemed to be having difficulties dealing with the controversial case and decised to postpone judgement.
This was after Khama instructed his lawyers not to participate in appeal cases by the Directorate of Intelligence and Intelligence (DIS). The panel led by Court of Appeal President Tebogo Tau resolved to continue with the case and hear oral arguments after Khama’s lawyers pulled out of the Court of Appeal hearing.
The consolidated judgement were scheduled to be delivered on 4th November with other appeal judgement for the October 2022 session. The Court of Appeal however backed off from delivering the judgments.
In a letter addressed to the Directorate of Intelligence and Services (DIS) lawyers Thapelo Attorneys and Khama’s Lawyers Ramalepa Attorneys, the Registrar of the Court of Appeal Nomsa Moatswi indicated that “kindly be advised that the judgments in the above referred matters will not be delivered on the 4th November 2022 as originally communicated to the parties.” The Registrar added that, “Rather the delivery of the judgments is postponed to a date to be advised to the parties, such date being before the commencement of November 2022 Application,” she said.
According to Moatswi’s letter: “The postponement of the delivery of the judgments is necessitated by the need for more time as the matters involved complex matters and the appeals were heard by a full bench of the Court of appeal.”
Sunday Standard has established that the consolidated judgments were scheduled to be delivered on 4th November with all other appeal judgments for the October 2022 session.
In an earlier press statement, Khama’s lawyers stated that, through them, he addressed a formal letter, advising her, among other concerns, that he has it on good authority and reliable sources that decisions in the consolidated appeals had already been made, adverse to him, and that the hearing of the appeals would be a mere formality.
“President Khama requested that a panel of independent judges not affected by these allegations, be assigned to hear the consolidated appeals, so that his reasonable apprehension that he will not receive justice is addressed,” the lawyers said.
The statement says, on the same date, the Registrar of the Court of Appeal responded to President Khama`s letter, advising that the Judge President directs President Khama to deliver formal and properly motivated applications for recusal of judges of appeal ahead of 14 October 2022.
“On 12 October 2022, President Khama addressed another letter to the Judge President, advising her that he is unable to deliver recusal applications because he does not have a panel or list of judges who will sit in hearing of the consolidated appeals,” reads the statement. It says Justice Tau did not respond to this letter. The statement says Khama decided that if his concerns about the apparent lack of impartiality of the panel of judges who will sit in hearing of the consolidated appeals is not meaningfully addressed, he will not participate in a sham of a hearing, when it is clear to him that decisions against him have already been made. The Court of Appeal decided to proceed with the hearing of the consolidated appeals, after considering President Khama`s concerns, and dismissing same.
“President Khama`s legal team respectfully asked to be excused from today`s sitting of the Court of Appeal, after the decision of the Judge President, not to address President Khama`s concerns aforesaid was announced in open court,” the statement says. The lawyers indicated that Khama “has consented to us informing the people of Botswana and all those who are interested in the independence of the judiciary, reasons why the consolidated appeals were heard in the absence of his legal team, because he considers this to be a matter of public interest.”
