The case in which the Botswana Congress Party (BCP) is challenging the legality of President Mokgweetsi Masisi’s ascendency to the presidency branched off into another twist on Monday with Justice Tshepo Motswagole recusing himself from the proceedings of the case.
On Monday the Gaborone High was to start the proceedings at 9am but Motswagole who was expected to preside over the case with Justices Tebogo Tau and Barnabas Nyamadzabo informed the Court that he was recusing from hearing the case.
Motswagole recused from the case because he had at some pointed formed an opinion on the case while he was still an employee of the Attorney General Chambers in 2008. A former employee at the Attorney General told The Telegraph outside the court described Motswagole as a principled judge.
According to our source, Motswagole at the time (2008) believed that the State was in the wrong. This means the case will be delayed further as another judge should be roped in to join Tau and Nyamadzabo.
The case has attracted controversy from the beginning. The former Attorney General employee explained that apart from the fact that Motswagole gave his former opinion as one of the reasons for recusing himself from the case, he could have been peeved by Chief Justice Maruping Dibotelo’s decision to allegedly overturn the High Court’s random Case management System.
“He is not only one of the most independent judges but principled as well. So the decision by the Chief Justice must have also rubbed him the wrong way or does not want to associate himself with something that he believes is unethical,” said the source.
The latest development comes a day after The Telegraph’s sister publication, Sunday Standard broke a story on Sunday detailing how there was panic at the government enclave and the High Court last Thursday High after the court’s random Case Management System assigned Justice Tshepo Motswagole to preside over the high profile case.
The High Court Case Management System was put in place to prevent judge shopping by lawyers who try to game the system by pairing their cases with judges they believe are friendly to their cause.
The computer assigned the high stakes case to Justice Motswagole who is believed to be the most independent minded and progressive judge in the country. Justice Motswagole who has never shied away from speaking truth to authority has issued landmark rulings in favour of oppressed or underprivileged groups, including criminal defendants and workers unions.
Chief Justice Maruping Dibotelo last Friday however stepped in and overrode the CMS choice, appointing Justice Barnabas Nyamazabo and Justice Tebogo Tau who are perceived to be executive minded to make up a three judge panel including Justice Motswagole.
The BCP was expected to lodge a formal complaint against the Chief Justice’s appointment of justices Tau and Nyamazabo to the panel. The BCP is reported to be unhappy that the Chief Justice hand-picked the two judges instead of leaving the appointments to the random CMS. But BCP lawyer Martin Dingake and Attorney General Abraham Keetshabe were on Monday told that Justice Motswagole has recused himself from the case.