In an appeal before the CoA scheduled for hearing today (Friday), the State argued the High Court failed to find that once the CoA had adjudicated Morupisi’s case, it ceased to be open to the High Court to interfere with any judgment pronounced by it, whether under Section 18 of the Constitution, or under any other law, in any manner which would amount in substance, even if not in form, to a review of a decision of the CoA. “Section 18 of the Constitution confers alternative powers of review in terms of very wide powers granted to the court under that section, but it does not entitle the High Court to exercise supervisory jurisdiction over the CoA,” said the State.
According to its arguments, the very Constitution that the court a quo places reliance on to set aside the CoA judgment, recognises that there is a hierarchy of courts, with the CoA at the apex, and the High Court beneath it. The State further 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. “As the ultimate protector of these values, this Court must 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 the State. In the grounds of appeal, the State has argued that it follows that the court below failed to apply its mind to the fact that the matter was not properly before it and that it ought to have been brought 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,” added the State.
The State further argued that the court below failed to note that it was not suggested that the CoA judges ever had any conversation with the President about the case rather it went on a speculative inquiry instead of considering averments set out in the founding affidavit. It noted that the court a quo ought to have interpreted the statement complained of as intended to indicate that the CoA takes judicial notice of the public concerns about issues of corruption, of which the President is a member. “There is nothing in the record that suggests that the CoA was acting under the instructions of the Executive. The presumption should therefore, be that the Court of Appeal acted impartially. “The presumption should also be that the President of the Republic of Botswana, 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,” argued the State. The State emphasised that at the very best for Morupisi, one might come to the conclusion that Justice Walia took into account irrelevant considerations.
However, the State argued that the fact that the apex court may have taken into account irrelevant considerations is not a valid reason for setting aside its decision and it does not justify the conclusion that the court was biased. : In the end, the State said it follows that the appeal enjoys very good and/or strong prospects of success, which are nowhere close to frivolous or scant. Kebonang recusal The State is standing on its contention that Justice Kebonang ought to have recused himself from the case as he was conflicted and biased. “It is clear that the proceedings before Justice Kebonang were a nullity because he was conflicted and acted in a manifestly biased manner.The facts which grounded the need for him to recuse himself existed prior to him being assigned the matter."
The State pointed out that the facts in support of the recusal are reasonable and they satisfy one leg of the test being that judge Kebonang's twin brother unduly benefitted from the Capital Management Botswana (CMB) funds, following the unlawful award of a tender to CMB by Morupisi Further that judge Kebonang's mother unduly benefitted from the CMB funds, following the unlawful award of a tender to CMB by Morupisi and when faced with a similar application relating to CMB, Judge Kebonang recused himself in the Timothy Gordon Marsland and Other v DPP and AG matter. “Kebonang does not deal with the facts pertaining to the benefit by his mother but rather, with respect, shifted the target to State and attorney Mboki Chilisa.Kebonang held that the State's conduct in engaging their attorneys of choice was egregious, unethical and beyond comprehension because attorney Chilisa was a prosecution witness before the trial court. This is notwithstanding that Chilisa does not appear on the power of attorney in this matter and has not been involved in these proceedings,” submitted the State.
The State also said Kebonang’s refusal to recuse himself indicated that his mental disposition towards them was that they harboured "ulterior motives” as then proceeded to refer to an unrelated and irrelevant case where he once refused to recuse himself and held that the appellants acted in bad faith in that they were aware of the said decision, ought to have disclosed it and ought to have paid heed to it. The State added that rather Kebonang elected not to mention that he recused himself before in a matter where the same allegations were levelled against him in the Marsland v DPP matter therefore, he ought to have recused himself in Morupisi one.
