As the story of Executive arm of government’s real or perceived influence over the judiciary grows legs by each passing day, commentary on the same becomes endless and inevitable. It is so compelling not to ignore even if one wanted to ignore it for a moment because it is at the core of our democracy and the Rule of Law. One would have expected President Masisi as the sole appointing authority of the Chief Justice of this Republic, to have at the very least issued a press release with respect to the raging allegations by Justice Gaolapelwe Ketlogetswe to the effect that the Chief Justice Terrence Rannowane attempted or indeed influenced him to rule against Hon Dr Thapelo Matsheka. Instead, the President’s office would find it necessary to issue a press release in which it addressed the issue of the Permanent Secretary to the President’s utterances where she is alleged to have trashed amongst others, the former President Ian Khama’s naming of ministries. It appears the President is treating this highly sensitive matter which essentially borders on the circumvention of the Rule of Law and the Executive real or perceived overreach over the judiciary.
This is neither the first nor the last time the President’s office perceived if not real propensity to become tone-deaf to matters of governance in particular to high profile matters like the one under discussion whose resolutions lie at the door step of that office. Our system is wired in that fashion. Those who follow high profile matters will readily and vividly remember how the President’s office literally threw the suspended Director General of the Directorate on Corruption and Economic Crime (DCEC) Rre Tymon Katlholo under the bus when another State institution-the Director General of the Directorate of Intelligence and Security (DIS) Rre Peter Magosi attempted to intrude into the mandate of the former organisation. Notwithstanding the numerous appeals Rre Katlholo would have launched with the President’s office with regards to the said intrusion, the silence was deafening until the frivolous and vexatious suspension was concocted. As I write, Rre Katlholo remains suspended with the promised swift disciplinary proceedings against him to be commenced.
In the same vein, the President’s office is mute on the allegations laid by Ketlogetswe J against the Chief Justice. For all it takes, the matters of Rre Katlholo and Ketlogetswe J are the core of the Rule of Law with respect to firstly dealing with corruption irrespective of who is implicated and secondly, determining legal matters before judicial officers without any outside interference and/or influence. Given that the President’s office acknowledges the potent manner corruption negatively impacts our daily lives in more ways than one, and the irreparable harm allegations against the Chief Justice stand to cause the judiciary, prompt action should have been the earliest priority.
It is common cause both the Chief Justice and Ketlogetswe J have written the President with regards to the alleged interference. I have previously wondered why the two learned judges did not direct their letters to the Judicial Service Commission (JSC) because that is where judges’ matters are processed as the point of first instance. The President’s office could very well be hiding behind the fact that the letters for and against the complaint have been un-procedurally so routed. This notwithstanding, it should not be such a big deal because the JSC is populated with persons directly appointed by the President and who should be able to know what they should do in such circumstances. That said, the undeniable fact is that Ketlogetswe J has raised a complaint and that more crucially if not importantly, such complaint must be processed expeditiously to find whether or not it is meritorious. It is very important to find out whether Ketlogetswe J is throwing mud at the Chief Justice as an attempt to tarnish his name and standing to portray him as not worthy of the position he holds, or whether the latter indeed tried or in fact influenced the former to rule against Dr Matsheka.
The stumbling block to the President’s inability or unwillingness in dealing with Ketlogetswe J and Rre Katlholo’s matters could very likely lie at the President’s involvement in one respect or the other. If this was not the case, he would have long acted with precision. With respect to both instances, the line minister whose name is mentioned repeatedly therein, and that is Minister Morwaeng, is the President’s right hand man who would take the bullet on his behalf come rain or sunshine. As a consequence, he would not have approached Ketlogetswe J without the concurrence of his principal. Whether by coincidence or design, it appears from Ketlogetswe J’s letter to the President that Minister Morwaeng may have had a conversation with the Chief Justice with respect to the outcome of Dr Matsheka’s matter. For ease of reference, Ketlogetswe J says in his widely published Confidential letter to the President at paragraph 16 that ‘….Fortunately, Your Excellency, I do not have any memory lapse issues. I know the Honourable Chief Justice spoke about the issue, and that is when I started joining the dots between his concerns over security, the sustained question whether I was going to release Dr Matsheka and its alleged likely embarrassment to Your Excellency, though I did not know how, the irrelevant issue of Judges’ 4 % and connection of all these issues with the call from Honourable Morwaeng the previous night. The final connection came in when I got a message from Honourable Morwaeng, and later his call. Then I knew we had a big problem in our hands that needed Your Excellency’s anxious and urgent attention. I lodged this complaint’.
On the basis of the foregoing and importantly should this be the true sequence of events, it puts the President’s men in the whole allegation that pressure of sorts though not expressly stated, may have been exerted on Ketlogetsewe J to rule against Dr Matsheka and prolong his unlawful detention. This will without any shred of doubt, place resistance of sorts on the President since the circumstances appear to render him as such not to be too eager to crack the whip lest he places himself in a precarious situation. If the implicated individuals were not in the inner circle of the President some would argue and may be justifiably so, it goes without saying action would have long been taken against the Minister because such does not require any process. He is simply fired. As for the Chief Justice, a tribunal would have long been established to find out if indeed or not he tried to subvert the Rule of Law during his telephone conversation with Ketlogetswe J.
I argue very strongly and without flinching that the President is treating Ketlogetswe J’s complaint as trivial and of no consequence and by extension hoping Batswana will in the process quickly forget it. As someone who ascended the office on a ticket of transparency, accountability and the Rule of Law, it has emerged this was all deceitful if not populist. The President is vigorously pursuing a dangerous model of selective justice in which The Rule of Law coupled with its attendant imperatives and seemingly, has eyes popping out when it should be applied to those deemed errant and close very quickly when the same errant group should be subjected to the same. But one thing remains: the President may have for now thrown Ketlogetswe J and Rre Katlholo under the bus but, their issues will remain live until uncontaminated truth is established to vindicate or implicate the implicated. In the meantime, the judiciary continues to lose trust and confidence in the eyes of those it was meant to serve as the last line of defence. Equally so, our democratic credentials remain trashed in the eyes of the international community. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Let us continue to guard as Covid-19 pandemic because it is still in our midst.
