The Administration of Justice was over the weekend thrown into the limelight for all the wrong reasons after it emerged the Registrar of the High Court had issued a warrant of remand on the person of the erstwhile Director General of the Directorate of Intelligence and Security Services (DIIS) Rre Isaac Kgosi. This after Motlhabi J had delivered a judgement on an application by the Directorate of Public Prosecutions where it sought two fundamental reliefs: firstly, to order that Kgosi be held in custody for 14 days and secondly, to remove the Magistrate of first instance from further dealing with Kgosi’s case. According to the judgement, Motlhabi J did not grant the first relief but granted the second one. Following the conclusion on the DPP application by way of delivering the said judgement, security agents believed to be from the DIIS followed Kgosi and arrested him at the offices of his lawyers who looked puzzled at the arrest because they believed there was no such order from Motlhabi J.
Aggrieved and justifiably so by their belief that their client was unlawfully imprisoned, Kgosi’s lawyer spent the weekend in the High Court trying to get clarification from Motlhabi J whether he had ordered in his judgement that Kgosi be imprisoned. At the end of the weekend, Motlhabi J informed Kgosi’s lawyers that he never ordered him to be imprisoned. Buoyed by this clarification, Kgosi’s lawyers would successfully secure a liberation warrant for him to be released from custody. The question that should emerge is why was Kgosi imprisoned in the first place yet the judge never ordered him to be so imprisoned.
It is a legally held principle if I could call it, that imprisonment of anybody should be through the explicit order and direction of a judicial officer in this instance, Motlhabi J. It should be stated that Motlhabi J’s judgement elicited so many interpretations for and against it. May be, and just may be, the Registrar ‘thought’ the judgement meant Kgosi should be imprisoned. But the Registrar is no ordinary officer of the High Court who would think about judge’s judgements and orders. She/he is a very senior person very fully versed in matters of law. The Registrar would presumably and as a matter of course, be signing warrants of arrest and remand on a daily basis which do not elicit contest of some sort like the one in question. In fact Motlhabi J himself is the immediate past Registrar of the High Court who served in that position for a fairly long period. If the Registrar was not sure about the status of Kgosi following the judgement, she/he should have approached the judge to confirm or not if the judgment ordered him to be imprisoned. This would be informed by the far-reaching consequences of enforcing an order the judge would not have so made. One of the far-reaching consequences would be the fact that Kgosi’s fundamental right to liberty, guaranteed by the Bill of Rights as enshrined in the Constitution, would be compromised and by extension seriously violated for no good cause. With the foregoing in mind, it is not within the realm of legal thinking that the Registrar of the High Court would have signed the warrant of remand on Kgosi when Motlhabi J had not so directed. It is simply just not tenable.
It should be borne in mind that there is a central player in the Kgosi matter. And that is the DIIS. It a widely held view that this institution has assumed the role bigger than that of the DPP wherein it is its way or the highway. I have always held the position that the mandate of DIIS is to provide behind-the-scenes intelligence information to the DPP, DCEC, the police and other organs of the State. But regrettably and at great cost, the DISS has assumed a leading role over these institutions. There are allegations that the DIIS was involved in one way or the other in the forging of the Palapye Magistrate’s signature to secure an arrest warrant on Kgosi at the Sir Seretse International Airport back then. With respect to the current remand warrant, there is a view that the Registrar was, or may have been coerced by DIIS to sign it. This on the premise that the intelligence agency is running roughshod over everybody and every institution. Also, the acrimonious relationship between him and the DIIS is well documented. If this view is correct, it should go without saying that the same conduct would have obtained in Kgosi remand warrant. I am however not suggesting by any stretch of the imagination that the DIIS coerced the Registrar. It inevitably brings the question of why if so, public officers in positions like that of the Registrar of the High Court would succumb to outside influence in implementing the mandates of their offices.
Not all high ranking senior public officers succumb to outside pressure and influence. One such is the Director General of the DCEC Rre Tymon Katlholo. One vividly remembers him standing against the recent decision that sought to transfer some of his officers wherein he argued justifiably in my view that such decision would affect his institution negatively as it would comprise the investigation of corruption cases. Some in his position would have been too afraid or terrified to speak out. But then there would be some who even if they verily believed they are pressured to undertake an unlawful decision, they are just too terrified to resist pressure. Some would be considerate of the fact that if they resisted such pressure, they could lose their positions and by extension income to sustain themselves and their families. The sad part of this is that when all does not go well, one is left on his/her own. That is why Kgosi’s lawyers suggested the Registrar was being thrown under the bus when it became evident the judge never ordered his imprisonment. It becomes an unbearable or bearable catch 22 situation depending on how the affected individual views it. The above cannot be divorced from the political discourse in the country.
The politicisation of the public service is something on the lips of some in the country. There are those who feel all is well while some feel the service is politically contaminated. As a consequence and on the latter proposition, public service appointments are no longer based on merit but on patronage. This patronage the view holds, renders some senior public officers’ loyalty to the Constitution significantly replaced by loyalty to political leadership. It should be fair to say these two propositions have existed before the installation of the current administration where loyalty to the political leadership took precedence over the Constitution. It appears it is the challenge the country will live with unless and until the political leadership cause a fundamental paradigm shift to the status quo.
When all is said and done, I am still waiting to know under whose order, the Registrar of the High Court derived the authority to sign a warrant of remand that condemned Kgosi to the Gaborone Maximum Prison for three days the result of which was to deny him the guaranteed right to liberty as enshrined in the Bill of Rights of the Constitution. By any measure, the denial of this right to Kgosi is a very serious thing whose consequences have far-reaching consequences. One of these is that Botswana will be viewed here and elsewhere, as a country hell-bent on trampling on one of the most important basic human rights in a democracy. About three weeks ago or so, Botswana appeared before the 133rd session of United Nations Committee on Human Rights in Geneva, Switzerland where the country was grilled by a committee of experts on various human rights issues. On the backdrop of this, the Kgosi issue would further damage Botswana’s credentials on human rights. In the circumstances, I hold the view that the Administration of Justice issues a public statement to explain why Kgosi was unlawfully imprisoned. Tomorrow it will be me and you who may not have the privilege of hiring top legal minds to secure our releases from unlawful imprisonment. I am prepared to be persuaded otherwise as always. Judge for Yourself!
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