Perhaps the most unusual case to ever come to the Court of Appeal (CoA) ended last Friday with former president Ian Khama winning against the Directorate of Intelligence Services (DIS). As the case came before the Court, Khama’s lawyers, Unoda Mack told a five-judge panel that his client would not participate in the case because he (Khama) had been reliably informed that an ostensibly unfavourable judgement had already been written and that the submission by lawyers on both sides was a mere formality.
“Ostensibly unfavourable” because why would Khama be opposed to a favourable judgement? And why would the Court engage in chicanery he alleged if its conduct was above board? With regard to the non-participation, a CoA judgement written by Justice Lakvinder Walia and assented to by Justices Tebogo Tau and Isaac Lesetedi says that “Mr. Mack was unwilling to provide any further detail and was reticent on the question of the meaning or effect of not participating in the appeal.” The judgement adds that non-participation didn’t mean withdrawal of the opposition or “voluminous” pleadings and heads of argument that Khama’s lawyers had filed. Ahead of the judgement being handed down, Sunday Standard asked Khama whether he would accept the legal validity of such win. The response was as brief as it was unrevealing.
“I would be advised by my attorneys on that one,” he responded. He has prevailed but his victory is a Pyrrhic one because in recognising his win as legally valid, he has implicitly re-validated judges and a process that he had earlier sought to invalidate through the allegations that he made. In recognising his win as legally valid, Khama has communicated the message that the court system is only fair if it works in his favour. While he won the court case, the former president lost the public relations battle that he was engaged in with the government and that loss has far-reaching implications. Khama has alleged impropriety (interference in the judiciary) on the part of his nemesis and successor, President Mokgweetsi Masisi. If Masisi had indeed interfered, that would have been for the express purpose of ensuring that Khama lost and that was how Khama interpreted the president alleged interference.
Ironically, Khama’s victory creates a problem for him because his ability to claim political interference in the judiciary in the future has been desperately compromised. Conversely, it strengthens the state’s hand in a hypothetical scenario in which it may want to interfere in operations of the judiciary. There is a tough question that only Khama himself can answer: how did a judgement that was allegedly unfavourable last month turn favourable this month? There is only way that could have happened – if it was rewritten. Having alleged what he did, Khama will now have to explain how that happened. Only he can provide that explanation because he was “reliably informed” that the judgement had already been written. Judgement day was itself as unusual.
A day prior in the dead of night, DIS agents swooped on Khama’s official residence and searched it well into Friday. The searching of this residence was itself the matter of contention before the Court of Appeal. Hours before the judgement was handed down, DIS made an application to withdraw its case but the Court rejected such application. A bareknuckle fighter, Khama was balling his fists for a battle that would have followed his loss. Already he had quoted two cases of alleged judicial interference that involve the executive arm of government. He would certainly have reminded members of the public, both domestically and internationally about the latter cases. The issue is much more complex but his mere stature would lend credibility to the allegations he would have repeated.
