State attorney, Tshiamo Rantao argued in court this week that the High Court misconstrued what was said and ran with it to justify the former Permanent Secretary to the President’s claim and released him from jail. In the State’s appeal against judgment issued on January 3, 2025 by the High Court, Rantao said the words that were cited by Gaborone High Court's Judge Zein Kebonang were not what Justice Walia had said. “The Court of Appeal never made mention of ‘the President's desires to have corruption cases dealt with more harshly’. Those words appear nowhere in the ruling and are a clear misdirection by the court a quo,” he said. He explained that it had not been suggested that CoA judges ever had any conversation with the President about the case. Additionally, he stated that the statement complained of was intended to indicate that the CoA takes judicial notice of the public concerns about issues of corruption, of which the President is a member. Rantao submitted that there was nothing in the record that suggested that the CoA was acting under the instructions of the Executive but rather the presumption should therefore, be that the highest court acted impartially. “The presumption should also be that the President of the Republic of Botswana, Duma Boko who has taken oath of office to uphold the Constitution, did not and would never dictate to the apex court how they should determine any legal matter,” he said.
He emphasised that at the very best for Morupisi, one might come to the conclusion that the court took into account irrelevant considerations. However, the fact that the CoA may have taken into account irrelevant considerations was not a valid reason for setting aside its decision and it does not justify the conclusion that the court was biased, added Rantao. Regarding the remarks made by Walia, the State attorney argued that the remarks complained of were made in passing and on a reasonable reading of the judgment the only plausible conclusion was that the remarks had no bearing on the sentence passed. According to the lawyer, the statements were obiter (made in passing) and flow from a discussion of the legislative and policy positions on the issue of corruption. Rantao pointed out that parts of the judgment indicate that the CoA was dealing with the principles relating to sentencing, which include the interests of society and the paragraphs read as, “While punishment and sentencing is preeminently in the discretion of the trial court, the appellate court is duty bound to impose the correct and condign sentence where the sentence by the trial court is manifestly out of proportion to the gravity of the crime,” Rantao said.
“It is no doubt opportune for me to say something about the correct principles involved in sentencing. A good starting point is that the determination of sentence is a matter pre-eminently within the discretion of a trial court. An appellate court will not interfere with the sentence imposed by a trial court unless there is a material misdirection resulting in a miscarriage of justice. Nor will an appellate court interfere merely because it considers that it would itself have passed a different sentence if it had sat as a trial court.” He explained that proposition is so well established in this jurisdiction, as indeed it is in other Commonwealth jurisdictions, that it hardly requires authority and that it is equally important to bear in mind that punishment should fit the offender as well as the crime while at the same time safeguarding the interests of society. Rantao argued that it was thus a delicate balance which should be undertaken with utmost care and to remember the age old caution not to approach punishment in a state of anger. “The justification for such caution, as one has read, lies in the fact that he who comes to punishment in wrath will never hold the middle course, which lies between the too much and the too little. “No empirical formula exists for the assessment of sentence as each case must be judged on its own peculiar circumstances and where the offence and its punishment are clearly spelt out in the enacting statute, it is a matter of little more than applying the facts of the case to the dictates of the statute,” he submitted.
The attorney noted that there is a dearth of law in Botswana and elsewhere in the range of punishment for corrupt practices and high-end corruption related crime and the case that comes to mind readily is one on Jackie Selebi. The late former South African commissioner of police and head of Interpol was sentenced to a term of 15 years imprisonment for corrupt practices involving sums of money sounding in millions. He stated that the South African Supreme Court of Appeal dismissed the appeal and confirmed the trial court's sentence. On Justice Walia’s state that read as, “I have agonised over the sentence to be imposed on the Appellant bearing in mind that this Court would be falling 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”, Rantao said it was the court’s emphasis on public perception.
Rantao further noted that the CoA emphasised the public perception once more by saying that, “Every sentence, especially where the appellant as it is the case here is convicted of various distinct corruption related charges, reflects a complex amalgam of numerous and various factors and certain imponderables. It follows that in such a case, a trial court must carefully evaluate matters such as public interest, the nature of the offences committed, the convicted person's circumstances and the circumstances under which the offences were committed. In conclusion Rantao said the trial court erred and materially misdirected itself and that had it done so and appropriately appreciated the intrinsic seriousness of the appellant's culpability and harm caused, it would have imposed adequate punishment that included direct imprisonment for deterrence. “Firstly it is clear that Walia’s statement was read in line with the public interest considerations to deal with corruption matters. The public interest is part of the sentencing matrix as set out above. Secondly, the interpretation by the court a quo was incorrect,” he closed.
