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.
