Judicial arrogance versus
LETLHOGONOLO LAMONG | Monday March 10, 2025 14:21
The jurisprudential saga surrounding the Carter Morupisi case has finally reached its terminus, culminating in a Court of Appeal (CoA) decision that reaffirms the rigidity of judicial hierarchy and provokes earnest contemplation on the limits of appellate power. In an unprecedented legal peregrination, the High Court (HC) found itself at variance with the CoA. In the stumble and bumble of that ping-pong match, the stage was set for a riveting judicial debate on the scope of legal review, the doctrine of vertical stare decisis, and the imperative of judicial independence.
The CoA’s ultimate disposition, dismissing the HC’s intervention and reinstating a harsher custodial sentence, has been lauded by some as a necessary reinforcement of the apex court’s finality and rebuked by others as an act of judicial absolutism, or more brashly, arrogance, and the apex court’s glaring failure to balance the limits of appellate power, the independence of the judiciary, and the role of perceived bias in judicial decision-making; thus, unwittingly stifling remedial recourse. At the epicentre of this legal dialectic lies the tension between the doctrine of stare decisis and the imperative to ensure that justice is seen to be done. Without mincing his words, in delivering the verdict in a calm tone laced with a subtle air of hauteur, exuding subdued oodles of confidence, Justice Isaac Lesetedi said, “It is only the CoA that can revisit its decisions.” In short, the ruling implies the HC’s decision was ultra vires; it overstepped its authority, making it reversible on appeal. But this raises the question; did the HC truly act beyond its powers by scrutinising the CoA’s ruling? And doesn’t the concern that the CoA might have been swayed by factors outside pure legal reasoning carry weight? While stare decisis mandates deference to the highest court, one would argue that the HC’s venture into the matter was not a mere exercise in foolhardy bravado or childish adventurism in the judicial terrain, but an attempt, however unorthodox, to correct what it perceived as an erosion of judicial objectivity. Indeed, the words of Justice Lakhvinder Singh Walia, lamenting that to let Morupisi “escape with a rap on the knuckles” would not only diminish public confidence in the judiciary but, “also be seen to undermine the Honourable President's stated desire to see an end to corruption,' served as the crux of the controversy, raising legitimate concerns about whether external considerations tainted the appellate ruling. By reaffirming its earlier ruling, the CoA made it clear that no subordinate court can challenge its pronouncements, a stance firmly rooted in legal tradition and generally upheld across common law jurisdictions. However, in the 1932 Burnet v. Coronado Oil & Gas Co, Justice Louis Brandeis of the U.S.
Supreme Court stated, 'Stare decisis is not a universal, inexorable command. The doctrine is not an end in itself but a means to serve justice. When a rule, after being tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, it should be abandoned.” This perspective affirms the judiciary's responsibility to correct past misjudgements to uphold the integrity of the law. Historically, lower courts have driven higher courts to revise outdated rulings, advancing justice. A key example is R v. R (1991), when the House of Lords, now the Supreme Court, overturned the archaic principle that a husband couldn’t be guilty of raping his wife, reflecting evolving views on marriage and autonomy. This landmark ruling rectified a grave injustice and aligned the law with modern human rights standards. The willingness of higher courts to reconsider and, where appropriate, overturn their prior decisions, often prompted by lower court rulings, ensures that the legal system remains dynamic, just, and responsive to societal progress. In Morupisi’s case, the HC's intervention, though unconventional, stemmed from concerns that the CoA’s ruling was swayed by external influence, undermining judicial neutrality. The HC majority argued that the referencing of the president’s wish tainted the decision, breaching judicial independence. This is crucial; public trust in the judiciary relies on the belief that courts remain impartial and free from outside pressures. Given the damning evidence meticulously laid out by the prosecution at every stage of the trial, even a greenhorn judge, still struggling to find his footing on the bench, would have had no choice but to convict Morupisi and send him to carceral confinement. But for the CoA to simply say, “The court considered the law, and it was only upon one sentence that the appellant held onto as a straw to challenge a decision that was clear and not based on outside influence,” while technically accurate, came across as an overt attempt to shield one of their own, and sounded way too cavalier in tone and perfunctorily dismissive. By butchering this golden moment, the CoA effectively drowned in a puddle it created.
The CoA’s failure to address this concern objectively, reflected in its overzealousness to unashamedly pin the burden of Justice Walia’s ill-chosen words on the appellant, was a barefaced act of deflection, and though probably technically appropriate, this unfortunate manoeuvre has to a degree demonstrated the court’s blasé unwillingness to reverse its own precedents when they are found to be flawed. Rather than own up to a very unfortunate statement, the CoA implicitly dismissed this clear lapse as mere obiter dictum, a fleeting misstep that, while regrettable, amounted to nothing more than an inconsequential, harmless error that the appellant should not selfishly capitalise on. This clear reluctance to engage in self-correction is a missed opportunity to reinforce public confidence in the judiciary. A more introspective and progressive approach, acknowledging and addressing concerns about deference towards the executive without veering into the self-serving justification route would have strengthened the legitimacy of the CoA’s decision, even if its previous verdict were still to be upheld. The CoA should have demonstrated humility by taking full responsibility for its legal faux pas, recognising that the true measure of justice lies in its ability to remain untainted by external influences. Undermining public trust is always a grave misstep. By failing to fully reckon with the taint of perceived external influence in its earlier ruling, the CoA arguably overlooked an opportunity to restore unqualified public confidence in its own impartiality. Self-correction is a strength, not a weakness. Had the CoA acknowledged and rectified its error, it could have reinforced its legitimacy and public trust. Where necessary, the CoA should voluntarily reconsider its decisions to demonstrate its full and uncompromising commitment to fairness.
The CoA dismissed Morupisi's claim that Justices Lesetedi and Leatile Dambe should have recused themselves. While I refrain from delving into the specifics of recusal, my focus remains on the core principles of fair and impartial decision-making. Justices typically resist recusal unless there's a compelling legal reason, rooted in principles of judicial duty and procedural integrity. Refusal helps preserve the judiciary's authority, thwart manipulation of courts through forum shopping, avoid unnecessary delays, and creates self-awareness in the psyche of justices with a view to ensuring impartiality is not compromised. It also guards against baseless claims of bias anchored on past rulings or subjective suspicions without material evidence. Recusal applications should be assessed objectively, considering whether a reasonable observer would perceive a real risk of bias. In high-profile cases like Morupisi’s, a judicial panel may help review recusal requests. Warning; while recusals protect judicial integrity, an overly permissive approach would invite abuse and undermine the judiciary’s ability to function effectively. Courts must balance transparency with preventing litigants from using recusal to strategically manipulate proceedings. More constructively, the UK Supreme Court’s ruling in Pinochet established that even the appearance of bias is sufficient grounds for recusal. If a reasonable apprehension of bias, whether explicit or latent, taints a decision, the integrity of that ruling is necessarily called into question. The HC, while overstepping its conventional bounds, was driven by a noble pursuit; the safeguarding of judicial impartiality. In this case, the rigidity of stare decisis has, perhaps, triumphed over the flexibility that true justice sometimes demands. The law cannot be relegated to a callous instrument of order, it is an inanimate but compassionate guardian of fairness. If a judicial hierarchy is to command respect rather than mere mechanical obedience, it must be willing to correct its own missteps with humility and resolve. One can only hope that future jurisprudence will be guided not just by the conventional hierarchical infrastructure in place, but also by this irrefutable truism; the true measure of justice is to serve unadulterated justice.
The conclusion of Morupisi's high-profile case has triggered a national dialogue on justice, due process, and the rule of law. While some view the drawn-out proceedings as emblematic of a sluggish legal system, on the positive side of the spectrum, a deeper analysis reveals a far more significant outcome, one that will shape Botswana's legal evolution and resonate beyond its borders. Morupisi's case powerfully reaffirms the value of due process, and amplifies the view that justice cannot be sacrificed for expediency.
In a world clamouring for swift resolutions, this case illustrates that fair trial procedures, though time-consuming, constitute the pillars of constitutional democracy. The slow but steadfast adherence to due process in Morupisi's case strengthens public trust in the judiciary and safeguards individual rights. This case also sends a resounding message; no one is above the law. By holding the former highest-ranking public official accountable, the judiciary has reaffirmed the integrity of governance. This is vital in Botswana, where corruption remains a pressing challenge. The successful prosecution of Morupisi sets a precedent that will hopefully deter future abuses of power, reinforcing that public office is a privilege, not a carte blanche for impunity. While the case's prolonged duration highlights the challenges of a strained judicial system, jurisprudentially, it meaningfully contributes to the evolving body of law on corruption. It exposes the complexities of prosecuting financial crimes, offering crucial lessons that will shape the development of more impactful legal frameworks and investigative techniques to fight corruption. The lesson for the HC is unambiguous; while it is essential for it to respect the hierarchical structure of the judiciary, it must maintain the coherence and stability of the legal system by unapologetically defending its independence, free from any external pressure. Its decisions must be rooted firmly in the law, even if that requires pursuing a tactful and innovative way of motivating the superior courts to toe the path of justice.
The HC cannot afford to be a passive bystander in the evolution of jurisprudence, nor can it always defer to the CoA out of paralysing fear. It must advocate for reforms through appropriate channels, such as groundbreaking determinations, judicial conferences and legislative proposals, and lead with conviction, purposefully shaping the legal landscape rather than wincing and cringing in the shadow of higher courts. For the CoA, this case accentuates a crucial point; its judgments must be impeccably reasoned, leveraging finely honed bulletproof language, always transparent and legally valid. A ruling grounded in clear, convincing legal principles not only clarifies the decision but ensures it commands respect from the lower courts. When, particularly in cases of national interest that hold the powerful to account, decisions are articulated with utmost precision, they don’t just stand tall; they are the sine qua non for judicial authority, transparency, and trust. All the more reason for the CoA to recognise that its rulings are not simply archivable legal documents but pillars that uphold public trust in the judiciary. Going forward, through the quality and depth of its legal analyses, the CoA has the opportunity to restore the nearly lost respect, reinforcing its role as the definitive and trustworthy guardian of justice. More importantly, the case reinforces the importance of being cautious and thoughtful when dealing with requests for recusal. The CoA should weigh such applications carefully, ensuring that any recusal decisions do not undermine public confidence in the judicial process.
Moreover, the CoA should remain open to constructive feedback from lower courts. To function effectively, a healthy judicial system requires established hierarchy and top-down as well as bottom-up dialogue. Beyond Botswana, Morupisi's case provides a powerful blueprint for other nations battling corruption. It demonstrates that with political will, judicial independence, and public support, it is possible to hold powerful figures accountable. The case offers vital lessons for Southern African nations and aligns with global anti-corruption efforts under the United Nations Convention Against Corruption. The Morupisi case, though frustratingly prolonged, carries a legacy of profound legal lessons. It reaffirms the sanctity of due process, upholds accountability, and pushes forward anti-corruption jurisprudence. As Martin Luther King Jr. once said, 'The arc of the moral universe is long, but it bends towards justice.' Morupisi’s case cannot be relegated to the realm of an unfortunate model of HC’s unfounded insolence towards the CoA, rather, it is a watershed moment in Botswana’s legal history, and marks a revelatory step toward a more just and equitable society.