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.”
