The five court of Appeal judges who are presiding over the former President Ian Khama and the Balete appeals may in the coming weeks find themselves on trial by the court of public opinion.
While the five judges are expected to make judgements based on the facts before the Court of Appeal, they on the other hand will be facing reputational justice.
Reputation is the currency in the court of public opinion and loss of reputation is the penalty it imposes. So far, the court of public opinion has already ruled that Kgosi Mosadi’s reputation is beyond reproach: “The federation notes the response of the Office of the President to Kgosi Mosadi’s allegations. Notwithstanding the contents of the response and with due regard for the integrity and authority of Kgosi Mosadi, we believe that indeed there cannot be smoke without fire.
“Thus, in the view of the BFTU, the allegations raised are so far too serious and they paint a picture of a banana republic”, states a press release from the Botswana Federation of Trade Unions.
How does the five judges’ reputation stack up?
In his letter in which he is asking the five judges to recuse themselves, former President Lt Gen Ian Khama makes reference to letters by Justice Gaolapelwe Ketlogetswe (first published by Sunday Standard) to President Masisi the contents of which raised complaints about Chief Justice Terrence Rannowane’s attempts to influence Ketlogetswe’s decision making in a case involving Lobatse legislator Dr. Thapelo Matsheka.
Rannowane also forms part of the five-member panel presiding over the Balete case. Other judges in both cases involving Khama and Balete have not been without their fair share of controversy over the past few years.
While nothing points to any concerns about her judicial integrity Justice Tau’s appointment as Judge President of the Court of Appeal by President Masisi came as a surprise to many, not least because of her relative inexperience.
Many thought there were (at least) half a dozen a more experienced judges like Monametsi Gaongalelwe, Abednego Tafa, Zibani Makhwade, and Isaac Lesetedi.
Many within the legal fraternity questioned Masisi’s decision, with some viewing Tau’s appointment as a significant decline from precedent set by previous presidents.
Ian Kirby was the first local to take over the position, following the retirement of Patrick Tebutt. Tau was also embroiled in another controversy when the Botswana Congress Party (BCP) challenged President Masisi’s automatic succession in 2018. Then Chief Justice Maruping Dibotelo was accused of overriding the judicial Case Management System to appoint Justice Tau and another to a three-judge panel for the case. Tau was perceived to be executive minded.
Chief Justice Rannowane was also a wild card. His appointment was equally appalling to the legal fraternity, given the pool of more experienced judges that were passed over for promotion.
“… I was a senior judge but you know the position of chief justice is appointed by the President and the Constitution does not say that the President has to look at the most senior judges,” now retired Tafa told Sunday Standard recently.
“Of course, there was that expectation that I might be one of those to be considered. But you know the world over, the President has the prerogative of choosing who they want to be their chief justice.”
The decision to appoint a chief justice on account of seniority is not without precedent. When Chief Justice Moleleki Mokama passed on Justice Julian Nganunu was appointed. He was the most senior Motswana judge at the time.
Upon his retirement Nganunu was replaced by the most senior judge at the time, being Justice Maruping Dibotelo.
It was, therefore, only natural that Rannowane’s appointment would come as a shock to many. He has received more than his fair share of criticism recently over allegations of bias towards the executive. Only a couple of months before the Justice Ketlogetswe bombshell, Rannowane was criticized heavily by the law society for manipulation of allocation of cases.
The Chief Justice is on record seeking to justify allocating a politically sensitive case, during court vacation, concerning the issuance of search warrants, to Justice Chris Gabanagae, even though he was not the vacation judge, on the basis that the matter required a senior judge.
Justice Singh Walia is on both panels for the Khama and Balete matters. In 2015 he was reported to then Chief Justice Dibotelo and the Judicial Service Commission (JSC) for judicial misconduct. Walia was again accused of conflict of interest following his involvement as part of a panel of CoA judges in a case that pitted African Alliance and two of its former employees, former CEO Don Gaetsaloe and Moarabi Mariri, a Senior Sales Executive. African Alliance was represented by Armstrongs Attorneys where, the two former employees argued, Walia used to be partner and that his wife also worked for the law firm.
The Directorate on Corruption and Economic Crime (DCEC) once confirmed to Sunday Standard they had launched an investigation against Walia following allegations of conflict of interest.
Another member of both panels is Justice Mercy Garekwe. Her promotion to the CoA by President Masisi was also met with criticism by some more experienced judges who felt they were being overlooked.
Many questioned the timing of her appointment, coming on the back of a series of embarrassing court loses against the government. Sunday Standard has it on good authority that lawyers acting for Khama in the current appeal relating to DIS search warrants had asked that Garekwe recuse herself from the matter citing alleged personal and business relationship with spy boss Peter Magosi and the DIS.
