The application was after Justice Kebonang was allocated the case following the Court of Appeal (CoA) judgment that remitted it back to the High Court to be heard by a new judge.
The Attorney General (AG) has filed a recusal application against Justice Kebonang in a case in which Kgosi wants his guns back citing among others that he was criminally charged together with former president Ian Khama and others. In the grounds of appeal, the State requested for recusal saying that Justice Kebonang's brother, former Member of Parliament for Lobatse, Sadique Kebonang was a personal friend of Kgosi and had deposed to affidavits in favour of him (Kgosi) in matters before other courts.
The State also mentioned that Justice Kebonang was formerly the chairperson of the Tribunal of the DIS and lastly that he had at some point been criminally charged with Kgosi.
However, the judge was not willing to budge as he considered the application unmerited and dismissed it. On his reasons, Justice Kebonang explained that as a basis for the State seeking his recusal, saying that his brother is Kgosi’s personal friend he asked the question what has that got to do with him, his court or the subject matter of the proceedings before him? “There is no allegation that Kgosi is a friend of mine. I am not responsible for my brother nor his keeper. His friends or enemies are not mine and the converse is equally true," said the judge.
Justice Kebonang said although they are twins, they are not co-joined to be viewed and treated as persons with no separate identities, lives, aspirations and ambitions and that his friendships and his cannot objectively be a basis for a recusal by any reasonable person. On having been the chairperson of the DIS Tribunal, he pointed out that the chairmanship spanned from 2016-2020 when judge Godfrey Radijeng took over and that he was appointed by the State President to that position as was Radijeng. “No serving employees of the DIS are members of the Tribunal. At the time of my appointment as chairperson of the Tribunal in 2016, Kgosi was the head of the DIS until he was replaced by a new spy chief, Peter Magosi in 2018. My chairmanship thus straddles the period of the current DIS DG Magosi and that of Kgosi,” he said. He explained that the chairperson of the Tribunal was not appointed by the DIS DG nor does he report to him and that he or she is also not an employee of the DIS. Justice Kebonang stated that a period of three years has passed since he stepped down as the chairperson of the Tribunal and that in those three years he dealt with cases involving some DIS employees and have at no point been asked to recuse himself on account that he had previously been the chairperson of the DIS Tribunal. He said the applicants contending that his former role as chairperson of the DIS disqualifies him from sitting to adjudicate on matters involving the DIS, their position betrays a lack of understanding of their own Act. “Relevant sections of the DIS Act dealing with the appointment of the Tribunal chairperson of the DIS and the functions of the Tribunal and that any person aggrieved by a decision of the Tribunal may appeal to Court of Appeal,” he said.
The judge further explained that the DIS does not review the work of the Tribunal nor act as an appellate body and that the Tribunal makes an annual report on the discharge of its functions to the Minister responsible for intelligence and security. Moreover, he said they may at any time report to the Minister any matter relating to the functions of the Tribunal and again as apparent the Tribunal does not report to the DIS director general or make reports to him. Justice Kebonang said given the lack of interaction between the Tribunal and the DIS except when discharging its adjudicative functions where the DIS would be a party, would a reasonable person conclude based on the information that as a presiding officer that he would be impartial or biased against the DIS merely by reason of having been a former chairperson of the Tribunal? “Clearly not as the Tribunal sits as an empire over the excess committed by the DIS. It does not preside on the side of the DIS.
How would my former position affect them unless the argument by them as a collectively is that the current proceedings against Kgosi are merely DIS proceedings and no other,” he said. On the ground that he was criminally charged with Kgosi, Kebonang asked if it was correct or a question of amnesia displayed by the State. He explained that the criminal matter referred to was reviewed and set aside by the High Court and the AG represented the Directorate of Public Prosecutions before the High Court.
He said Otlaadisa Kwape as Assistant Government Attorney he is aware or ought to be aware of the judgement and that it should have been plainly obvious to the State that the allegation that he was charged with Kgosi was devoid of any truth. “Not only is the allegation false but what stands out is that the State deliberately omitted to state or show any count in which he was charged with Kgosi. They were happy with a bald statement designed intentionally to scandalise the court,” Justice Kebonang said.
In conclusion, Justice Kebonang said it was ironic that the State was quick to point out that he was charged but chose to say nothing about the findings of the High Court on those charges and how their own officers contrived the charges. “They also conveniently forget to mention that the charges were reviewed and set aside. Kwape may be an Assistant Government Attorney but he is first and foremost an officer of the court and is enjoined to act in a manner consistent with being such,” he said. He pointed out that he is expected to act honestly, truthfully and in a manner that would not bring the Administration of Justice into disrepute.
