Former president Ian Khama has contested assertions that he also interfered in operations of the judiciary when he was still president.
“I would want you to give me a single example of interference in the judiciary when I was in office to enable me to answer,” he responded when Sunday Standard pointed out to him that allegations of interference in the judiciary were also made against him when he was president between 2008 and 2018.
For two months now, presidential interference in operations of the judiciary has become a hot topic courtesy of allegations made against Khama’s successor, President Mokgweetsi Masisi. Two cases are cited.
In the first, Justice Gaolapelwe Ketlogetswe at the Lobatse High Court has alleged that alongside Chief Justice Terrence Rannowane, the Minister of State President, Kabo Morwaeng, put pressure on him to award a verdict that favoured the state in a matter that came before him. The matter involved Lobatse MP, Dr. Thapelo Matsheka, who had applied for bail after he was arrested in connection with the ritual murder of an ill-fated primary school student in his constituency. From what the Ketlogetswe alleges, Rannowane and Morwaeng wanted him to reject Matsheka’s bail application.
To be clear, Masisi is personally not directly implicated but Morwaeng’s action are largely interpreted to have been aligned with the president’s personal interests. Matsheka, whom the previous Leader of the Opposition, Dumelang Saleshando, has described as the best finance minister Botswana has ever had, is seen as a threat to Masisi. His arrest occurred against the background of the ruling party’s elective national congress in which Matsheka was deemed to be aiding an anti-Masisi group. The working assumption is that locking him up cut him off from the campaign activities of that group and hobbled its campaign.
Another part of Ketlogetswe’s allegation was that Rannowane has decreed that judges from the northern part of Botswana should not preside over cases in which Khama is a litigant. In addition to politics, Khama is supreme traditional leader of Bangwato, whose tribal territory is the largest in Botswana and home to many more tribes. The latter is believed to give Khama a lot of clout.
Following the Ketlogetswe matter, Khama put out a press release in which he raised general concern about the allegations and how they related to his own case.
“I have cases pending before the courts of law. There has been a rush to the Court of Appeal on every case that I have won to have my victory overturned. We now know how this came about and the real motive behind it. What does it mean Bagaetsho [fellow citizens] for my cases, past and yet to be decided in our courts, when it is indicated that the Chief Justice may have tried to bring influence on my cases so that they can go against me.”
The second allegation of judicial interference has been made by Kgosi Mosadi Seboko of the Balete tribe. Her government and the state have been battling over ownership of a parcel of land in her tribal territory. A High Court judgement bestowed ownership right on the tribe but the state has appealed the judgement. At a press conference that she addressed earlier this month, Seboko alleged that during a meeting that she had with Masisi at State House, the official presidential residence in central Gaborone, the latter told her that he will instruct Court of Appeal judges to make a ruling that favours the state.
Not only has Khama joined everybody else in lamenting allegations about judicial interference, he has also announced that he is boycotting court proceedings of two consolidated cases that he is involved in because of the apparent lack of impartiality. In a press release, his lawyers stated that the former president “has it on good authority and reliable sources that decisions in the consolidated appeals have already been made, adverse to him, and that the hearing of the appeals will be a mere formality.”
In response to Khama’s request for the “single example of interference in the judiciary” that occurred when he was president, Sunday Standard quoted that of him ignoring the advice of the Judicial Service Commission (JSC) in 2010 and unilaterally appointing judges. The JSC had recommended Lizo Ngcongco, Gabriel Rwelengera and Gabriel Komboni, all of whom Khama rejected and made his own choice. Soon thereafter, the Botswana Congress Party released a press statement in which it expressed “deep concern that ever since President Ian Khama assumed the presidency of the country, judicial appointments have been rocked with controversy.”
Khama’s response shows that he doesn’t consider the executive’s dominance of the process through which judges are appointed to amount to political interference. In that regard, he would view the alleged case of Masisi instructing CoA judges to rule in favour of the state as interference but disregarding recommendations of the JSC wouldn’t qualify as such. Interestingly, the argument some have made is that a president can interfere in operations of the judiciary by stacking the bench with judges that he knows will consistently favour the government in his/her rulings.
“The JSC is not a court,” Khama said. “Secondly, it recommends. Thirdly, the decision to appoint or not to appoint based on recommendations is the prerogative of the president.”
What is interesting about the last assertion is that in 2017, a full bench of the appellate court made a conclusive ruling that explicitly contradicts what Khama said. That ruling was made in a case involving Omphemetse Motumise. While the JSC had recommended that Motumise should be appointed judge, Khama disregarded such recommendation. The Law Society of Botswana interceded on Motumise’s behalf and in its ruling, the Court of Appeal set aside Khama’s decision because he had disregarded the JSC’s recommendation and didn’t provide an explanation for doing so. It was on the basis of this ruling and reversal of his decision, that Motumise was appointed to the bench.
