Judge accuses CoA president of patronage
Sharon Mathala | Monday October 24, 2022 06:00
Justice Motswagole in his intension to sue has cited President Mokgweetsi Masisi, Chief Justice Terrene Rannowane, Court of Appeal (CoA) Justice Tebogo Tau and the Attorney General (AG).
Justice Motswagole cites an unfair system when it comes to selecting judges to sit for appeal cases.
The judge further accuses the Judge President of inviting only certain judges of the High Court to sit on the Court of Appeal to the total exclusion of others, without following a fair and objective process that ensures that every judge of the High Court has equal chance.
In the past, the Judiciary has been accused of placing ‘pro government’ judges to preside over ‘controversial’ and politically exposed persons (PEP) cases and rule in favour of government.
Following complaints of forum shopping when it comes to allocation of cases, the judge has spoken out. “The discriminatory and unfair process of inviting a select few based on patronage and irrelevant factors is arbitrary, offends the principles of fairness and transparency and is tantamount to unlawful suspension of members of a court,” reads the judge’s intent to sue, which he says he has been a victim of the discrimination.
The judge further accuses Justice Tau of violating Section 9 of the Court of Appeal Act; “The President of the Court of Appeal has, contrary to Section 9 of the Court of Appeal Act, transformed this illegal practice into a rule of procedure by enactment of Rule 3, Sub-rulers 1 and 9 of the rules of the Court of Appeal, under statutory instruments number 172 of 2018.” Justice Motswagole in his court papers states that he is of the view that the rules, he terms offensive, should be struck off; “any systematic exclusion of members of the court is ultra vires Section 9 of the Court of Appeal Act and Section 99 of the constitution of the extent that the Court of Appeal is constituted of members of equal worth and jurisdictional power.
The said enactment is consequently liable to be struck off.” Justice Motswagole further advises against nepotism and patronage. “Sections 4 and 5 of the Public Service Act, CAP 26:01 list the Judiciary as part of the government structure in Botswana. Section 7 of the Public Service Act enjoins every appointing authority or supervising officer when dealing with human resources matters to prevent nepotism and patronage.” The judge continued: “This very act of bad administration is directly contrary to and in frustration of clearly expressive legislative and constitutional intention and policy objectives and values and consequently unlawful.” This scandal follows another where Judge Gaolapelwe Ketlogetswe also expressed worry over the other developments within the Judiciary. It remains to be seen if President Mokgweetsi Masisi will act on this latest development.