‘AG, DIS want a ban on me’
Mpho Mokwape | Tuesday August 27, 2024 10:09
Justice Kebonang recently recused himself from a case involving the DIS and former top investigator of Directorate on Corruption and Economic Crime (DCEC), Tsholofelo Bareetsi, who is suing the State for defamation. In a detailed judgment in which Justice Kebonang states his reasons for recusal, he says he worries about his safety especially against the alleged government 'mouth piece', Francis Museveni. “I have decided to remove myself from this case to protect myself from the DIS onslaught that would no doubt follow, benefit AG and DIS. I have no energy to participate in it or subject the respondent to it,” he said.
Justice Kebonang explained that although there is no legal basis for his recusal and that the application is merit-less, the fear he has of the DIS is not without basis nor is it an unreasonable one. In the judgment, he reveals that reporting the DIS to the police has been the catalyst for the conduct of the AG and the DIS. “The grounds for the request for recusal, as set out in Grenorrah Begane's affidavit, the Chief State Counsel, filed on behalf of the AG and the DIS, is that the complaint I filed not only brought into question the integrity of the DIS and the AG but also suggested that I considered the AG and the DIS as “threats to my judicial position' and 'at worst I see the DISS as potential killers'', he further said. He stated that for those reasons, they contended that they have reasonable apprehension of bias and that in support of the application for recusal, the AG and the DIS filed a supporting affidavit from the Botswana Police Service (BPS), an institution that is or was to investigate the complaint he had filed. The judge pointed out that it was clearly evident that the complaint filed will never be properly investigated as the police have shockingly taken sides with entities they were to investigate. “Talk of institutions being compromised! Coming back to Begane's assertions, he contends that as soon as I reported the DIS and highlighted the Attorney General's involvement in the DIS criminal scheme, I lost jurisdiction to preside over all cases involving either the DIS or AG,” he said.
He stated that the application was framed in such a broad manner that it amounts to a standing recusal application on all matters involving either the AG or the DIS, which was unfortunate as each case must turn on its own facts and circumstances. Justice Kebonang noted that from the onset when the particular case was allocated to him, none of the parties objected to his presiding over it and that post the filing of his complaint against the DIS and the AG, both the AG and the DIS have appeared before him on other cases and in none of them have they sought his recusal. “They now appear to have changed their minds and now seek that I should not preside over any matter involving them as they do not trust that I will objectively adjudicate over them. The thrust of Begane's complaint as I understood it, is that I should not really have reported the DIS and the AG to the police but should have lived with their threats and potentially unlawful conduct. To say that this proposition is startling is an understatement,” said the judge. He noted that it simply shows how citizens have become collateral when it comes to the DIS and how government institutions are willing to aid in the DIS criminal conduct. “Through its Francis Museveni Facebook page, it has subjected numerous people to ridicule and hate. In its last onslaught against me, it declared that I would be 'dead in two months.' The perpetrators of this criminal syndicate remain in office and out of reach while the country suffers tremendous psychological harm. My complaint and of many others against the DISS should not be minimised. It is wrong to do so,” he said.
On alleged bias of Kebonang cited in recusal application
The judge stated that the threshold to prove bias is high and the onus is on a party seeking the recusal or disqualification of a judge to meet the threshold and that allegations of judicial bias will have to overcome the strong presumption of 'judicial impartiality' for the application to succeed. He explained that as the DIS and the AG correctly point out, a judge faced with an application for his recusal must not be unnecessarily sensitive to it because at the end of it, he is merely a referee to the dispute and must enjoy the confidence of those who appear before him that he would not be hostile or biased against either of them. “Equally a judge must not be quick to recuse himself for his oath of office as it requires that he must act and discharge his duties dispassionately and without fear or favour,” he said. According to Justice Kebonang he explained that in the application before him, the DIS and the AG have not pointed to anything about my conduct or management of the case that suggests or would suggest a pre-disposition or lack of an open mind,' he said.
Furthermore, he said the only issue that appears to disqualify him in the eyes of the applicants from presiding in the matter is the fact that he is a complaint against them with the police. “I am not sure whether their fears are justified. They have succeeded in getting the police on their side. By providing an affidavit in support of the recusal application, there is no longer any pretence by the police of their neutrality or impartiality. The complaint filed is as good as dead,” he explained. Justice Kebonang said as a judicial officer but more importantly as a citizen, his safety should not have to be something he worries about from another government department even as they accept that times have changed and that the DIS has become a principality that is both unrestrained and unaccountable. He emphasised that in the case, the responsibility was on the DIS and the AG to provide compelling evidence of his alleged bias and partiality and that they needed to show that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that his ability to conduct himself in an unbiased and impartial manner had been compromised by his complaint to the police or show that he had conducted himself in the pre-trial conferences in a manner that raised an apprehension of bias. “They have not shown either that I have a personal relationship with the respondent or that I have conducted myself in a manner that suggests pre-disposition. Their request as I see it, is really an attempt at forum shopping. It is based on their subjective views about themselves and speculation about impressions that may or may not have been formed,” he said.
Justice Kebonang noted that no cogent or compelling grounds were identified upon which a person reasonably informed of the relevant facts, viewing the matter realistically and practically and having thought the matter through, would conclude that he has conducted himself in a manner which raises a reasonable apprehension of bias or lack of objectivity toward the applicants and the issues raised in the litigation. Moreso, he said the strong presumption of a presiding judge's impartiality or objectivity cannot be overcome by speculative assumptions. In conclusion, Justice Kebonang said the DIS and the AG have simply not met the high burden of demonstrating a reasonable apprehension of bias based on his conduct, nonetheless he is recusing himself for his own safety. Meanwhile, in the case that Justice Kebonang recused himself from, the former DCEC top investigator Bareetsi slapped the State with a defamation suit. Bareetsi claims the state lied about him protecting high-profile accused persons who the state believed threatened national security. Bareetsi, in his lawsuit seeks damages worth P1 million as he accuses the State of lying and harming his reputation as an investigator.