All manner of commentary finds expression on social media but it’s one thing to make an unrestrained comment on Facebook, quite another for that comment to be repeated in parliament.
Following the recent appointment of Justice Tebogo Tau as Court President of the Court of Appeal (CoA), a lawyer is supposed to have objected to this appointment with a Facebook post that said the following: “Go nna Mokalaka o tsena mo judiciary ke matlhotlhapelo ka fa tlase ga puso ya ga Mokgweetsi Eric Masisi.” The statement, which essentially alleges anti-Kalanga bias by Masisi against those in the judiciary, would certainly have been made in English but the Leader of the Opposition, Dumelang Saleshando, translated it to Setswana because he was presenting his motion in the latter language.
The Maun West MP said that historically, the most senior (and presumably most experienced) judge in a judicial arm is the one who is always appointed Chief Justice. He made reference to the appointments of Justices Moleleki Mokama (by President Sir Ketumile Masire), Julian Nganunu (President Festus Mogae) and Maruping Dibotelo (President Ian Khama) as having followed that tradition. He said that when Dibotelo retired in 2018, the most senior judge, Justice Abednico Tafa, was overlooked in favour of Justice Terrence Rannowane. Similarly, when Justice Ian Kirby stepped down, the most senior CoA judge, Justice Isaac Lesetedi, was overlooked in favour of Justice Tau. Both Tafa and Lesetedi are Kalanga and Saleshando sees sinister tribalistic motive on the part of the person who appointed Rannowane and Tau – President Mokgweetsi Masisi.
“Some suspect that he makes these appointments along tribal lines, persistently shunning a particular tribe,” Saleshando said.
In another dimension, he characterised these appointments as the initial phase of a future favour-trading enterprise: those who “jumped to the head of the queue” ahead of those who had been waiting all their lives, will one day have to “repay” Masisi’s favour by making judicial decisions that favour him.
“There is no free lunch,” Saleshando quipped.
In his judgement, that is already happening and he referred to a recent High Court case that Rannowane reassigned. The case is one in which former president Ian Khama stands accused of unlawful possession of arms of war. Originally, the case had been automatically assigned a junior judge by a computer system. However, upon Rannowane’s intervention and on the basis of the status of the accused person, the case was reassigned to a senior, presumably more experienced judge. Saleshando said that Rannowane’s actions were improper because “justice should know no status in life.”
The allegations being made against Masisi are a throwback to 2001 when, in an ironic sense, the same judiciary was accused of being biased in favour of the Kalanga. At the time, Mogae (who as a Motalaote is a Kalanga kin) was president and Nganunu, a Kalanga, was the Chief Justice. Around that time, emerged Pitso ya Batswana, an association that defined itself around preservation of Tswana cultural rights. PYB epically fell out with the Society for the Promotion of Ikalanga Language (SPIL), which had been long established as a Kalanga cultural rights association. The two associations had been feuding over the repeal of sections 77, 78 and 79 of the constitution and the judicial appointments was among the many issues that they couldn’t find common ground on.
The tribal composition of the turn-of-the-century bench was outlined in rich detail in a leaked document whose contents were published in The Voice. The paper listed the names of Batswana lawyers who qualified to be judges but were persistently overlooked as well as names of Kalanga lawyers who had made it to the bench. The result was a long-running P850 000 defamation case between former High Court judge, Mpaphi Phumaphi and the document’s author, former Mmegi Managing Editor, Metlhaetsile Leepile. The case only ended in February this year when the CoA upheld a High Court judgement that cleared Leepile of any wrongdoing.