The recent developments between the Directorate of Intelligence and Security (DIS) and former president Ian Khama has brought the spotlight again into the judiciary where many are questioning its independence and integrity.
The issue of forum shopping has been constantly discussed and addressed especially every year during the opening of the Legal Year but this time around high profile cases such as the one for the former DIS director-general Isaac Kgosi and the former president has brought it back. Chief Justice Terrence Rannowane has been accused of forum shopping against the former president's case where the DIS sought a search warrant against him. The Gaborone High Court recently issued a search warrant against Khama and his attorneys were not happy as to why the presiding judge was roped in while he was on vacation during that period.
Justice Chris Gabanagae was only scheduled to be the vacation judge on April 2022 but he was appointed to hear an ex-parte application brought by the DIS where they sought a search warrant against Khama and close his family members. Seeing that Justice Gabanagae was not to be a vacation judge, Khama’s attorneys wrote to the Chief Justice seeking clarity on why he was appointed.
According to the letter that was authored on November 8, 2021, Khama’s attorneys from Ramalepa Attorneys questioned why Justice Gabanagae was appointed while he was not a vacation judge but judge Michael Mothobi as he was then, who was replaced by judge Michael Motlhabi was scheduled vacation judge for that period. “However, on October 21, 2021 a search warrant was issued by Judge Gabanagae after hearing on ex-parte by DIS. We just seek clarity concerning how this happened and if there was a special dispensation for this matter,” asked Khama’s attorneys. In his response, the Chief Justice denied any sinister motives saying the case was allocated Justice Gabanagae on the basis that it involved an important public figure being the former president. “I felt that it would be imprudent for his case to be handled by a newly appointed judge and determined that out of deference to the former President.
I used my discretion to assign a more senior judge to do it. I assure you that I made the decision in good faith and in recognition of the exalted status of the former president,” he said. The independence and integrity of the judiciary has been questioned a lot and recently the chairperson of the Law Society of Botswana, Tshekiso Tshekiso also addressed it in his open letter to the Chief Justice.
He said there have been incidents that have greatly undermined confidence of the public and the legal profession as regards to the independence of the judiciary. Giving an example of allocation of cases, he explained that they have noted with concern that the recent issuance of search warrant against Khama and Kgosi were allocated Justice Gabanagae even though he was not the urgent applications vacation judge. “The above seems to suggest that there is a hand behind the allocation of cases, and also conveys the impression that judges are not there to serve the public and interest of justice, but rather like many political appointments our judges are simply cadre deployments looking after partisan interests,” he said. Meanwhile the Centre for Civil and Political Rights (CCPR) Committee on Human Rights has also put their two cents weight on the judiciary.
According to their latest report, they have requested the government to ensure that the procedures for the selection, appointment, promotion, discipline and removal of judges and prosecutors are in compliance with the Covenant and relevant international standards. “The State party should strengthen measures to ensure access to justice throughout its territory, including by recruiting the necessary judicial, prosecutorial and administrative personnel and increasing the use of mobile justice systems, increase its efforts to further reduce the backlog of pending cases and improve judicial and prosecutorial efficiency,” reads the report.