The CoA pronounced decisively that there is nowhere in the Constitution that gives the High Court the powers to sit and review the judgments of the apex court including those dealing with the rights and freedoms of individuals. “The High Court does not have authority over the CoA judgments even those affecting fundamental rights and freedoms,” court was told. In a judgment confirming its initial seven-year imprisonment sentence for Morupisi, the CoA bench of Justices Isaac Lesetedi, Leatile Dambe, Edwin Cameron, Johan Froneman and Goemekgabo Tebogo-Maruping said the hierarchical structure of courts has been uncontroversial and trite law accepted in the country until January 3, 2025. Justice Lesetedi said on that day, a three-judge bench of the High Court (by majority of two to one) held that it enjoyed power to overturn a judgment of the apex court. “It did so because it had said that the judgment breached Morupisi’s constitutional right to a fair trial,” he said.
Dismissing the High Court’s decision to release Morupisi from custody, Lesetedi explained that hierarchical structure of courts is universally accepted as a necessary feature of a constitutional democracy based on the rule of law. He stated that appeals from and reviews of lower courts decisions by a higher court in the hierarchy are a necessary safety feature to ensure that possible mistakes can be rectified and injustice prevented. “But in the end, the rule of law also requires finality in the interests of clarity, certainty and coherence. That finality is reached at the apex court of a country. Its word on matters coming before it is regarded final,” Lesetedi explained. The judge of the High Court has now sought to upend the orthodoxy and that it attempted to arrogate to itself the competence to sit in review or appeal over a judgment of the CoA. Justice Lesetedi emphasised that the constitutional and legislative provisions make it abundantly clear that the CoA is the final court of appeal in the country with jurisdiction to make final determinations on appeal from all the lower courts through the High Court. “This provision makes it clear that besides the High Court’s unlimited and original jurisdiction under section 95 (1) to hear and determine any civil or criminal proceedings under any law, it in addition has jurisdiction over any alleged contravention of those fundamental rights and freedoms. Nothing more. No exclusive or final jurisdiction,” he added.
Lesetedi cleared that nobody has ever suggested that the provisions of section 95 (1) clothe the High Court with authority to inquire into, nullify or overturn final decisions of CoA . He added the same applies to section 18 (1), saying nowhere does it empower the High Court to interfere in any manner with a final decision of the CoA. The judge pointed out that the constitutional logic of the pyramid structure is reinforced also by section 10 (b) of the Court of Appeal Act of which that provision clothe the CoA the power over the High Court decisions. “But nothing in the Constitution or statute provides any power, the High Court is nowhere afforded power to interrogate, question or inquire into any decision of the CoA regarding fundamental rights or freedoms,” explained Lesetedi. The judge further questioned how the High Court majority in Morupisi’s case got past the clear constitutional and legislative structure of the judicial hierarchy in Botswana as well as the binding judicial precedent of the court.
He said the judges in the majority took it upon themselves, in defiance of clear binding precedent to determine whether there were exceptional circumstances justifying intervention. “This they did without any warrant in logic or in the Constitution or in any stature and in plain violation of longstanding appellate precedent. “What moved the two judges to do so is incapable of explanation on the papers before us and we refrain from venturing any possible reason for their conduct,” he said. Lesetedi stated that it must be made plain clear that the exceptionality principle applies only within the CoA itself, that it does not apply to grant the High Court power to inquire into or interfere with decisions of the CoA. He pointed out the principle serves merely to define the extremely rare circumstances under which the CoA, as the supreme court of Botswana, may revisit its own decision in a matter.
However, Justice Lesetedi acknowledged that though they are the final court, even final courts may err. Hence, he said, it is generally accepted principle that the apex court may, in exceptional cases where it is necessary in the interests of justice, correct itself. “All of this is found in the Constitution and the laws of Botswana and for long been recognised and applied not only in its apex courts, CoA but throughout the system,” he said.
