In the latest controversy surrounding the judiciary is the judicial hierarchy that will test the strength of the Court of Appeal and the High Court. Legally the appeals court has higher powers than the High Court and as a result, today's judgments of the appeals court may differ with that of the High Court. Debate on the jurisdiction and hierarchy in Morupisi’s case should be on the balance of law without him being caught in the cross fire.
As the Court of Appeal is expected to put to rest the long running case of the convicted former senior government official, Morupisi, the judges will need to balance the pressure of trying to prove a point to their colleagues and deliver a legally balanced decision.
Morupisi has been out of jail since January 3, 2025 when the High Court overturned the CoA decision that sent him to jail for seven years for corruption and money laundering.
Not only it's D-day for him as he will know his fate about his hailmark sentence but the Court of Appeal will possibly make its stand clear on its decisions that cannot be 'overruled' by the High Court.
For those learned it is common knowledge that the CoA is the highest court in the land and it's the final arbiter oinall legal matters, rarely will its decisions be open to scrutiny by a lower court.
But, according to the law and rules it does not mean its decision cannot be overruled either by the High Court or any other suitable court.
“Yes, the High Court can overrule a decision made by the Court of Appeal in Botswana if it finds that an error was made,” reads the Rules of court. The apex court as the highest court in the country and being responsible for determining decisions made by the High Court and Industrial Court, it can be appealed to on questions of law and fact.
Further, if it finds that there was a legal error, it can order a new hearing or decide the case itself and if it decides that there was no legal error, the appeal will be dismissed and the original decision will stand.
But it terms of it being overruled rules states that if a party believes that the CoA made an error, they can apply to the High Court and a trial judge can draw the attention of the CoA to an error in law that should be corrected.
In Morupisi’s case he approached the High Court believing that the CoA made a legal error in law when it enhanced its sentence to give him a custodial one after citing certain words that he felt were unfair on him.
This resulted in the country being thrown into intense legal debate as to how the CoA could have made an error in law to the point that the High Court used found in its powers to overturn the decision.
As a result the two courts have been unintentionally thrown into a clash of hierarchy and if the other one had the jurisdiction to interfere with the decision, throwing the one litigate in the middle of the tussle.
Despite what seems like clash of the two courts, simply put they cannot go at each other as that would throw the judiciary into turmoil. Morupisi’s anticipated judgment today will determine what the two courts think of each other in the legal standing.
However, the parties have been the ones debating as to the jurisdiction and hierarchy of the two courts, with Morupisi believing that he was within his constitutional rights to challenge the CoA decision while the State had argued that the High Court failed to find that once the CoA had adjudicated on a matter case, it ceased to be open to the High Court to interfere with any judgment especially when there was no finding of any error in law.
“The Constitution recognises that there is a hierarchy of courts, with the CoA at the apex, and the High Court beneath it. If there is no error in law, there is no way the High Court can overrule the decision of the High Court,” argued the State.
The Attorney General also explained that the appeal to the High Court decision represents a serious threat to the core values of the judicial system and the integrity of the appeals process pointing out that the High Court's unprecedented intervention has rocked the very foundations of the judiciary.
The State urged the CoA to stamp its authority as the ultimate protector of values it needs to step in to restore order and stability.
“The trust that the public has in the judiciary is at stake, necessitating a quick and decisive resolution to this urgent matter,” submitted State.
In its arguments about jurisdiction and hierarchy, the State said the High Court had failed to apply its mind that there was no error in law which allows it to consider the decision of the CoA but the fact that the matter was not properly before it and that it ought to have been brought back before the CoA.
“Even where one ignores the jurisdictional hurdles, the remarks made by the Court of Appeal complained of were made in passing. On a reasonable reading of the judgment, the only plausible conclusion is that the remarks had no bearing on the sentence passed. The court below ignored the principles of interpretation and read the paragraph in isolation instead of considering the judgment in its entirety,” said the State.
Further, the State had argued that the court below failed to note that it was not suggested that the CoA judges are allowed to say certain things in passing without derailing from the law and without interfering with the actual judgment.
Meanwhile, Morupisi who clearly didn’t anticipate the debate would be would be hopefully that he will not be caught in the line of fire between the two courts and that his fate will be a fair one.
