The case in which the opposition Botswana Congress Party (BCP) is challenging President Mokgweetsi Masisi’s appointment branched off into a new controversy last week after Chief Justice Maruping Dibotelo overturned the High Court’s random Case management System.
There was panic at the government enclave and the High Court on Thursday 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 favor of oppressed or underprivileged groups, including criminal defendants and workers unions.
Chief Justice Maruping Dibotelo on Friday however stepped in and overrode the CMS choice, appointing the more executive minded Justice Barnabas Nyamazabo and Justice Tebogo Tau to make up a three judge panel including Justice Motswagole.
This is not the first time the High Court has decided to veto the CMS choice after the computer system had picked a progressive judge to preside over a case involving the presidency.
Former High Court judge, Key Dingake was in 2009 replaced by a three-man bench in a case filed by the late Gomolemo Motswaledi challenging his suspension from the Botswana Democratic Party by former President Ian Khama.
In one of him many liberal landmark judgement, Justice Motswagole in 2013 issued a judgement that stopped short of scrapping the death penalty in Botswana. The judge questioned the constitutionality of the death penalty and was explicit that convicts accused of murder without extenuating circumstances are denied justice. Justice Motswagole scrapped Section 203 of the Penal Code which prescribes death penalty.
The judge pointed out that the problem with section 203 is that it does not afford the persons convicted of murder equal treatment and equal opportunity, and it seriously undermines the individualisation of the enquiry on the imposition of the ultimate penalty by excluding well known sentencing principles and usual mitigating factors. His decision was however overturned on appeal.
In another brave judgement, Justice Motswagole last year nullified the unilateral decision by Government to award salary increment to non-unionised employees and those who are not admitted into the Public Service Bargaining Council (PSBC).
Justice Motswagole ruled in favour of the Botswana Federation of Public Private Parastatals Sector Unions (BOFEPUSU) stating that Government acted unlawfully by unilaterally adjusting the salaries of the civil servants by three percent on March 30, 2016.
In another courageous judgement, Justice Motswagole decided against the ruling Botswana Democratic Party, resulting in the party not fielding a candidate in a Francistown by-election.
Justice Motswagole’s liberal bent is however expected to be neutralised by a more conservative Justice Nyamazabo, who was one of the first three judges to apologise and withdraw their signatures from the controversial petition by High Court judges against Chief Justice Dibotelo.
Justice Tebogo Tau is also believed to be executive minded and is remembers for her ruling in which she dismissed with costs a case in which four high court judges challenged former President Lt Gen Ian Khama’s decision to suspend them from the bench. The four judges Oagile Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang also wanted the court to declare invalid the decision by the President to appoint a tribunal to investigate their potential removal from office. Curiously, when Justice Tau was assigned the case by the High Court CMS computer, the Chief Justice did not use his prerogative to empanel the high profile case.
Sunday Standard has established that the BCP will on Monday 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.