Mmegi

“I had hoped Garekwe’s conscience will prick her”

Morupisi's fight for freedom continues . PIC PHATSIMO KAPENG
Morupisi's fight for freedom continues . PIC PHATSIMO KAPENG

The embattled former Permanent Secretary to the President (PSP), Carter Morupisi, says he had hoped Court of Appeal Judge, Mercy Garekwe would have done the noble thing and recused herself from presiding over his case on the basis that she was 'biased'.

In his attempt to get the judge from his case where the State has filed an expedited appeal against his release from prison, Morupisi said he had hoped that Garekwe's conscience would have pricked her to recuse herself without the unenviable task to launch the recusal application. “It is incumbent upon every judge to recuse herself or himself from any matter in respect of which he or she is reasonably suspected of bias towards or against one of the parties. This principle is non-negotiable,” he said.

Yesterday, Justice Garekwe refused to recuse herself from Morupisi’s case on grounds that there is no basis to the claim made by the appellant. Morupsi, who said is disappointed with the outcome of his application, had explained why he felt the judge ought to have recused herself saying he would not silently participate in a compromised court process for the sake of finality. In his founding affidavit, the former PSP’s contention comes from an alleged exchange of words between the judge and State attorney Tshiamo Rantao in chambers where Morupisi’s attorney Obonye Jonas was also present. Morupisi alleged that his attorney had informed him that the judge ‘coached’ Rantao after the latter had indicated that they wanted to abandon the relief they sought on stay of the High Court judgment and wanting him (Morupisi) to remain in jail while they appealed the decision. “My attorney Jonas tells me that on January 4, 2024, he requested to see judge Garekwe in chambers in the presence of the respondents' attorneys to discuss the progression and direction of the expedition application. While in chambers, one of the respondents' attorneys, Rantao indicated to the Judge that he had given thought to the reliefs sought in the Notice of Motion and Draft Order and has decided not to seek stay of execution,” said Morupisi He explained that in abandoning the relief, the State said there is no harm or prejudice to them when the appeal is heard when he is not in custody.

According to Morupisi, his attorney told him that judge Garekwe sought to persuade attorney Rantao not to abandon the stay relief. “By calling upon Mr Rantao not to abandon the stay application, the judge wanted a basis on the pleadings to make a ruling adverse to me. This is the only inescapable conclusion that I have come to and it is prompted by an unsolicited stance taken by a judicial officer before whom I must feel safe,” argued Morupisi. The Botswana Patriotic Front chairperson stated that it became unmistakably clear that the judge was heavily embedded in the cause and could not even hide her desire to see him locked up in jail. He said despite all this, his attorney told him that Rantao cringed and looked unamused and uncomfortable by the suggestion of the judge which had all the trappings of coaching a litigant or pleader by a judge.

Morupisi argued that the judge had clearly inexorably descended into the arena which shows that she is biased, or at the very least evinces an apprehension of bias against him. “The kernel of my complainant is that justice Garekwe is partisan and prejudicial against me. There is another point: At the CoA, the Judge president is responsible for empanelling Judges who hear matters. Justice Tebogo Tau is on leave. Justice Lakhvinder Singh Walia is the Acting Judge president. The problem is that the self-same Judge Walia whose ruling on my sentence I am complaining about picked judge Garekwe to hear the expedition application. This is a case where a man picks or chooses a judge to preside a case in which he has an interest,” he said. Morupisi argued that it was clear that judge Walia had deployed judge Garekwe to rule in favour of the State which he said it is gross bias and that not only does the empanelment effectuate bias or conflict, it excites misgivings as to the integrity of the judiciary. More on the recusal grounds, Morupisi had pointed out that he was informed by the former Capital Management Botswana's (CMB) Rapula Okaile that Judge Garekwe previously adjudicated in a matter at the High Court about the liquidation of CMB, which they are told to have received laundered money from Botswana Public Officers Pension Fund (BPOPF).

He noted that he only received the unsettling information on January 6, 2025 and dived more into why he did not want Garekwe presiding over his case stating that sometime in 2018, a local newspaper carried an article accusing him of having a corrupt relationship with CMB and that at one point he refused to recuse himself from a BPOPF meeting that resolved to report him to Directorate on Corruption and Economic Crime for corruption and related crimes. “This was false. I sued the paper for defamation.The matter came before judge Garekwe and on June 5, 2020, she dismissed my suit. By losing the case, I understood judge Garekwe believed that it was true that I was corrupt as alleged by the newspaper.Indeed, she held that the publication by paper could not be said to be defamatory in the light of the criminal charges I was facing at the time,” he noted. Morupisi explained that because of her previous involvement in the CMB matter, and because she has already dealt with his case against the newspaper touching on similar issues as the ones raised in the present appeal, judge Garekwe was disqualified to adjudicate in his case. Morupisi argued that Justice Garekwe was compromised and must have recused herself and allow uncompromised judges to sit as any reasonable and objective person will have no hesitation to conclude that judge Garekwe was actually biased and unfit to adjudicate in the case. “I am advised by my attorneys that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. I would reject any suggestion that a fair-minded observer would not reasonably apprehend bias on the part of judge Garekwe. It is clear that she does not bring an impartial mind to these proceedings,” Morupisi argued.

Editor's Comment
UDC's 100 Days: Please deliver your promises!

We duly congratulate them to have ousted the long ruling Botswana Democratic Party (BDP) from power. Prior to taking power from the BDP, the coalition had made several election promises that are credited for influencing change and swaying the people to vote in its favour.The party had made an undertaking, which its leader and President Duma Boko consistently bellowed in his campaign trail. These undertakings were promises that Batswana would be...

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