The former PSP currently fighting his impending return to jail for a sentence related to serious crimes of corruption and money laundering believes CoA Justice Singh Walia’s discretion in passing a suitable or condign punishment was vitiated by the fact that he paid obeyance to political considerations which are irrelevant in sentencing.
“In what setting did the President communicate these sentiments to members of the Court of Appeal? Was it a meeting between the President and Justice Walia or between President and all members of the Court of Appeal? Or was it a telephonic conversation? Was the rspondent's case discussed at that meeting or in that conversation? Did the President complain about the sentence imposed by Justice Chris Gabanagae at the Court below? Was the enhancement of sentence suggested or even prescribed by the President? What more was discussed?”
The questions Morupisi is posing to State in his fight for his freedom were triggered by some certain lines Justice Walia used on December 6, 2024 judgment where he enhanced Morupisi’s suspended imprisonment to immediate imprisonment.
Morupisi was given 18 months and five years imprisonment for two counts of money respectively and received seven years imprisonment for money laundering.
Along meting out the sentences in his judgment, Walia also stated that, “I have agonised over the sentence to be imposed on the appellant bearing in mind that this Court would be failing in its duty and seen to be eroding public confidence in the judicial system if the appellant were to escape with a rap on the knuckles. The Court would also be seen to undermine the Honourable President's stated desire to see an end to corruption.”
The remarks made seemed to have triggered Morupisi who now is arguing that his rights to a fair trial were compromised believing that the Justices of the apex court were captured or there is influence of the government in the judiciary.
Contained in his arguments against State’s appeal regarding the setting aside of a jail term by the High Court, he explained that the judges are insulated from the pressures and undue influence of elected officials.
“Judges also have a duty not to mortgage the courts to politicians as it happened in this case. In making references to the President, the Court of Appeal allowed itself to be influenced by the government in sentencing the Respondent. This is impermissible; it is totally unacceptable. Judges must base their decisions on law and not politics,” he said.
He stated that judges must decide matters before them on the basis of facts, evidence and law without any restrictions, improper influences, inducements, pressures, threats or intererences, direct or indirect, from any quarter or for any reason.
Morupisi argued that there is no place for pleasing politicians in legal argumentation or adjudication maintaining that the controversial statement contaminated the entire judgment.
“The mere fact that things that were said by Walia which are correct at law, does not compensate for the grave and fundamental misdirection that he committed, which completely nullifies his sentencing discretion. There is also no doubt that the controversial statement referencing the statement contributed to the enhancement,” he submitted.
Furthermore Morupisi questioned Justice Walia’s statement which stated that he had ‘agonised’ for sometime on what manner of sentence to impose on him (Morupisi) and that the court should ensure that he does not escape with a rap on the knuckles as the court would be seen to undermine the President's stated desire to end corruption.
He explained that after looking at the meaning of the word agonising he believes the statement is unfortunate and it sticks out like a sore thumb and reduces what was supposed to be a judicial pronouncement to a political rhetoric or statement.
“This aberration destroyed the entire judgment. It is submitted further that the sentencing judgment of Walia and the judgment by Justice Mercy Garekwe on expedition defending it, together have the potential to reverse Botswana's democratic gains, and are therefore, very dangerous if allowed to stand,” he argued.
On the argument of jurisdiction, he maintained that he relied on section 18(1) of the Constitution that directs him to the High Court if his rights have been violated.
He submitted that he also relied on the decision of former president of CoA Justice Ian Kirby in Kobedi v Attorney General (2002) to advance the view that the High Court has collateral jurisdiction in terms of section 18 of the Constitution to entertain constitutional challenges founded on sections 13-16 inclusive of our Constitution.
“This part of our Constitution can be referred to as our Bill of Rights. Although the decision relied upon emanates from the High Court, it cannot be easily ignored, authored by Judge Kirby as it is. Judge Kirby is a veteran and inimitable jurist who has distinguished himself both as a lawyer and as Judge of the High Court and this Court,” he said.
The former PSP also said there was another point to be made about using the High Court and not the Court of Appeal as the proper forum to litigate his case being that the Court of Appeal itself is the violator of his rights to be afforded an independent and impartial court.
“It never could have been appropriate to complain about the Court of Appeal before the Court of Appeal. The Court of Appeal itself is at trial here. It is also important to underline that the Court of Appeal is not the overlord our Constitution, like all organs of state, it is subject to the Constitution of the Republic of Botswana. Indeed, it is creature of the Constitution,” he stated.
In conclusion Morupisi indicated that assuming without conceding that the High Court did not have jurisdiction to entertain his case, it is not the end of the road for him as the court is still required to decide the merits of the case.
