Botswana’s judicial firestorm, Morupisi’s bold gamble

For all the right or wrong reasons, the legal saga of Morupisi is a headline gripping story that catapults Botswana, a normally quiet country, often overshadowed on the global stage by poorer but noisier States, into the limelight of judicial scrutiny. Perceptive legal doyens would no doubt agree that this is not merely an abstract drama of sentencing and appeals, rather, it is a spellbinding exploration of the sanctity of judicial independence, judicial hierarchy, the weight of precedent, and the delicate interplay between law and politics, or put mildly, the proper boundaries of operational Executive tentacles in judicial matters. At the heart of this case lies a question that resonates universally; can the judiciary successfully hold its weight in its role as the guardian of fairness and impartiality, even when bested by the spectre of Executive influence?

This matter, which has wagged the tongues of many, comfortably makes it to the microcosm of the universal tensions that challenge courts worldwide, and demands the attention of not just legal aficionados, but anyone invested in the enduring quest for justice. It is a narrative rooted in the complexities of law, yet unmistakably shaped by the broader societal battle against corruption, as corroborated by this nugget uttered by a 17th century English philosopher named Thomas Hobbes, “The law is the public conscience." Justice Mokwadi Gabanagae’s initial sentence of leniency sparked a predictable chain of reactions. The Court of Appeal (CoA), led by its president, Tebogo Tau, and Justices Baaitse Nkabinde and Lakhvinder Singh Walia, reset the scales of justice with a more stringent sentence. A seemingly minor, but deeply consequential part of their reasoning, was encapsulated in Justice Walia’s dismissive view of the appeal and through the infamous statement, “We have agonised over the sentence to be imposed on the appellant bearing in mind that this court would be failing in its duty and seen to be eroding public confidence in the judicial system if the appellant were to escape with a rap on the knuckles. The court would also be seen to undermine the Honourable President's stated desire to see an end to corruption." Lest we forget, it was the same court that, in a fiery outrage and strongly worded denunciation, tore into Morupisi’s ego, viciously slicing his bid to withdraw his appeal into olid pieces, branding the move "opportunistic" and "mischievous.” The painfully regrettable inclusion of the President’s anti-corruption agenda as a contextual backdrop to the gravity of the case, while on its face seemed to accentuate an acute awareness of the public’s intense thirst for accountability, unwittingly and rightly so, triggered alarms about judicial impartiality. By referencing the President's constructive desire in a sentencing judgment, the CoA walked the precarious tightrope between reflecting societal expectations and potentially compromising the independence of its deliberations. It was this very statement that became the fulcrum of the High Court’s majority judgment. Justices Zeinub Kebonang and Reuben Lekorwe’s decision to overturn the CoA sentence rested on the principle that judicial independence is sacrosanct. Their opinion, eloquent and unfazed by optics, asserted that referencing the Executive’s stance compromised the CoA’s impartiality. Aligned to this view is an assertion shared by an 18th Century American political philosopher, Thomas Paine, “The law is not an instrument of oppression, but of liberty.”

In their considered view, expressed in the judgment that compelled the nation to absorb every word, the need to preserve the rule of law by insulating the judiciary from political undercurrents, irrespective of the power of their source, is etched in indelible and hallowed letters in the Constitution. This is not merely a procedural axiom; it is the indisputable bedrock of constitutional democracy. Opting to confront the problem head-on, the two justices deemed the CoA’s judgment a “nullity,” yet intriguingly preserved Justice Gabanagae’s original sentence, thus avoiding a jurisprudential vacuum. This nuanced decision seeks to affirm the principle of judicial independence while also providing a rational resolution to a legal conundrum that gripped the country. Judge the pair as you will, but this truth remains irrefutable; they were summoned to confront a moment, and in its gaze, they did not flinch. They refused to shy away from the burden of responsibility, valiantly stepped forward, opting not to seek refuge in the shadows of hesitation. They chose fortitude where others might have vacillated. And they loudly affirmed that Executive overreach is not welcome in the Judiciary’s value chain.

In what was considered a judicial clutch performance, the dissenting judgment of Justice Masilo Mathaka, injected a sobering counterpoint. The lone non-conforming voice was an unambiguous and simplistic call to respect the doctrine of vertical stare decisis and the hierarchical architecture of the judiciary as clearly articulated in case law and the Constitution. Striking a chord, more so in the hearts of legal novices, Justice Mathaka argued that no lower court possesses the jurisdiction to overrule the apex court’s decision. He branded the High Court’s intervention as a “disguised review” of the CoA’s judgment, a transgression against the natural order of judicial processes. By Justice Mathaka’s estimate, the High Court had ventured into a domain reserved for the apex court itself, thus upsetting the foundational principle of finality in legal adjudication.

His dissent, appropriately grounded in both principle and pragmatism, underscored that while judicial independence is paramount, it must coexist with respect for institutional boundaries. And his judgment aligns with the enduring tension between upholding constitutional rights and adhering to procedural orthodoxy. What we do know, however, is that no case law is ever cast in stone. Established judicial practice demonstrates that courts have, when warranted by circumstances, overturned their own prior decisions, unencumbered by the constraints of horizontal stare decisis. The decision to take the matter to the High Court, a step that confused many legal amateurs, in that it seemingly reversed the flow of judicial hierarchy, raises significant jurisprudential questions. Historically, under the Roman-Dutch legal tradition, and in jurisdictions influenced by it, the apex court’s decisions are final. The logic is irrefutable as it guarantees a legal system’s stability and integrity, wrapped with the tearproof apparel of even-handedness, fairness, predictability and consistency, and premised on the finality of judgments. The bottom line is, to indiscriminately allow a lower court to nullify an apex court’s decision would invite judicial anarchy. However, in exceptional circumstances, constitutional principles may demand reconsideration. In this context, we may reflect on the stance taken by former South Africa’s Chief Justice Mogoeng Mogoeng, a renowned legal luminary; “A court is not bound by the opinion of another court, but by the law of the land.”

The High Court’s majority framed its decision as a matter of safeguarding fundamental rights, notably the right to a fair trial by an independent and impartial tribunal. But Justice Mathaka’s dissent rightly flagged the Pandora’s box such a precedent could unleash, suggesting that such matters should be remitted back to the CoA for redress rather than adjudicated afresh by a lower court. The majority judgment’s strength lies in its resolute defence of judicial independence. Its insistence that courts must be free from the minutest perception of Executive influence is both principled and necessary in a world where institutional integrity is perpetually under siege. So apt are the wisdom-infused words of Lord Bingham, the former Senior Law Lord with the House of Lords, now the Supreme Court of the UK, who intoned, “There are countries where the judges always agree with the government, but they are not countries in which anyone of us would wish to live.” However, the majority judgment’s Achilles’ heel is the practical implications of its remedy. Declaring the CoA’s decision a nullity while restoring Justice Gabanagae’s sentence creates an uneasy tension. The majority’s logic, though seemingly impeccable in isolation, flirts with undermining the coherence of judicial decision-making. The preservation of Justice Gabanagae’s sentence, a decision rendered by the very judiciary the majority sought to protect, highlights an intricate balancing act between principle and practicality.

In their defence, perhaps buoyed by the weight of their combined experience and their innate devotion to justice, the majority transcended not only the horizons visible to mere mortals but also the ordinary boundaries of legal reasoning. They anticipated that their ruling might spark another appeal, this time from the State, convincing themselves that sending the case back to the CoA for a fresh, unbiased and unclouded consideration, free from any hint of Executive influence, was the most equitable path to tread. And therein lies the hallowed leitmotif of the courts; to dispense justice, where truth is sought, accountability is demanded, and fairness prevails. If this was the majority’s vision, their ruling was nothing short of groundbreaking and will always be remembered for leaving the nation’s jaw on the floor. Incidentally, the Directorate of Public Prosecutions has already signalled their intent to challenge the High Court’s verdict, effectively rendering the majority’s verdict and the dissenting judgment pretty much Tweedledum and Tweedledee. Justice Mathaka’s dissent is compelling for its emphasis on judicial hierarchy. His call for the matter to return to the CoA aligns with the constitutional ethos of order, predictability and finality. Yet, his remedy, bail and a stay of the CoA’s sentence, from someone already probing the propriety of lower court decisions that clash with apex court directives, is itself a tacit acknowledgment that justice sometimes demands creative deviations from rigid structures. In staying the CoA’s sentence and admitting the applicant to bail, Justice Mathaka demonstrated a judicious sensitivity to the human and constitutional dimensions of the case. Though an exceptional rarity, the legal drama unfolds when lower courts dare to challenge the supremacy of higher courts, propelled by an unquestionable commitment to judicial independence or the fierce defence of constitutional rights. In Mumo Matemu v. Ethics and Anti-Corruption Commission, the High Court of Kenya set the stage by declaring President Kenyatta’s appointment of Matemu to the Ethics and Anti-Corruption Commission unconstitutional. This bold move, which paralysed an Executive decision, triggered an appeal, and the Court of Appeal swiftly struck down the ruling.

However, the plot thickened as the High Court, undaunted, revived the case, diving back into the constitutional depths with a seemingly defiant re-examination, fully convinced that the vertical separation of powers in the hierarchical justice structure need not thwart judicial enforcement. Though the CoA ultimately had the last word, the lower court’s resolute return to the case highlighted the profound role it plays in fashioning the legal infrastructure, even when the final judgment lies in a senior domain. In what was perceived as a legal push-pull drama and a thrilling clash of courts, each operating on a different rung of the slippery judicial ladder, the lower court boldly confronted the higher court, creating a dynamic that rippled across Kenya’s rugged legal terrain. Morupisi’s case serves as both a lighthouse and a warning. It illuminates the judiciary’s role as a steadfast guardian of fairness and impartiality, even amid formidable pressures. But on the negative side of the ledger, it cautions against the vileness linked to the erosion of institutional coherence. Botswana’s judiciary, though tested in this case, has an opportunity to emerge stronger and more resilient, provided it learns from these profound deliberations. The Morupisi saga will course through Botswana’s legal and political ecosystems. It will echo far beyond the frontiers of our small nation, offering lessons that are as enduring as they are essential. In a world constantly grappling with the boundaries of power and justice, this case is a welcome confirmation of the judiciary’s significant role in maintaining a delicate balance in the execution of justice.

One thing remains clear; from the lowest to the highest court, the principles of fairness, impartiality, and judicial autonomy must guide every decision. But these principles must also operate within a framework that respects the finality of judgments and the hierarchy of courts. To navigate this tension is the judiciary’s most intractable challenge and its greatest responsibility. On the positive side of the ledger, the Morupisi saga speaks volumes about the harsh realities of life and the varying abstractions of law. And you can bet your last pula, it will undoubtedly serve as a rich repository of lessons crucial for the positive evolution of national jurisprudence and the importance of the inescapable, somewhat oft-gladiatorial, and unfortunate, interconnection between law, politics, and justice.