Throughout the Netflix blockbuster, 'The Trial of Chicago 7,' the judge is depicted as a heinous man who leaned more towards the State against a rancorous group of protestors charged with conspiracy to incite a riot, amongst other offences. Until today, the last time I heard a jury's decision under heavy scrutiny to the point of dividing public opinion was in the said movie wherein Judge Hoffman was dubbed an embarrassment due to his heavy bias toward the US government in a case of anti-war protest movement organisers during the 1968 Democratic National Convention protest. The heavy-handed Judge Hoffman adopted a pro-prosecution posture throughout the trial, displaying antipathy towards the Chicago defendants and their lawyer. Judge Hoffman allowed evidence favouring the government and went all out to deny that which could assist the defendants.
The jury ruled with an iron fist in his courtroom, turning the trial into a laughing stock. Consequently, Judge Hoffman was forced into retirement at 87 years. Now, let us focus our attention on Botswana. But before then, allow me to quote a verse from the scriptures: 'He that hath ears to hear let him hear' (Matthew 11:15, King James version). The ugly fact is that a time has come for Botswana’s judiciary to introspect. Indications are that the judiciary is teetering on a cliff edge. Recently, a spate of court cases pitting Morupisi and the State has laid bare the reality of the judiciary's integrity being tested. The competency of jurists to rise to the occasion in national interest and democratic concern has come to the fore. While it appears to be a challenging time for our democracy, judicial independence seems to be corroded. This begs the question: Do judges still have moral judgment or a clear conscience? Assuming they do, let us unravel the threat posed to the democracy of this nation by a morally bankrupt judiciary if judges are found wanting. Whatever happened inside court on December 6, 2024 when the Court of Appeal sentenced former Permanent Secretary to the President (PSP) Carter Morupisi, to seven years in prison on three counts of corruption and money laundering must have been hailed as a crucial point in the country's fight against corruption. But was it? Morupisi received 18 months, five years and seven years for all the three charges respectively. They were to run concurrently. However, it was Justice Lakhvinder Singh Walia's statement, which caused a stir. Delivering the verdict, Justice Walia stated thus: "I 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." Subsequently, Morupisi approached the High Court seeking the CoA decision to imprison him to be declared unconstitutional and it be reviewed and set aside. A panel of three judges being Dr Zeinub Kebonang, Reuben Lekorwe and Masilo Mathaka heard the case. Both Justices Kebonang and Lekorwe ruled in favour of Morupisi whilst Justice Mathaka gave a dissenting view and rendered the matter back to the CoA for re-determination.
Meanwhile, as Morupisi was packing his bags from Maximum prison in Gaborone, the State was swiftly moving to appeal the matter on urgency and so it did. The case was before Justice Mercy Garekwe of the CoA. Nevertheless, Morupisi believed she ought to have recused herself citing bias and a lack of impartiality. Even so, in the prior case, Justice Kebonang had refused to recuse himself before setting Morupisi free. All in all, the high profile Morupisi case will probably go down in history as a Judge Hoffman moment. The nation is torn between Justices in the matter, with others questioning the legitimacy of both Justices Kebonang and Walia judgments. Others argue that their decisions are right in the context of the law. Apart from Justices Walia and Kebonang, Justice Garekwe’s views in the Morupisi matter, the bench appears to be comprised and fast becoming a hodgepodge of incongruence, uncertainty and mistrust. Similar to the Umbrella for Democratic Change (UDC) vs. Independent Electoral Commission (IEC) in the build up to the elections, Justices Garekwe, Isaac Lesetedi, Walia, and Goemekgabo Tebogo-Maruping and Judge President Tebogo Tau came under scrutiny to the point of Tau being booed in court as she gave judgement in the election matter. As it is common cause, the quorum had heard an expedited appeal by the IEC following a decision by Tau to grant the electoral body permission to urgently appeal the verdict of Justice Gaolapelwe Ketlogetswe of the Francistown High Court. Justice Ketlogetswe had ruled that the UDC clerks could observe the recording of names, national identity cards, and numbers during election registration to enhance electoral credibility and promote free and fair elections. Be that as it may, the judiciary has been under siege for a while. Whilst some judges have passed questionable verdicts, some have deliberately presided in matters directly or indirectly conflicting them. In one instance when asked to recuse himself in a matter involving his twin brother Sadique, Justice Kebonang stated that He was not his brother's keeper. Similarly, Justice Walia refused to recuse himself in the Infotrac vs. Debswana case despite a glaring conflict of interest having been raised against him. To be fair to the judges, in some instances, they have applied sound legal reasoning to avoid leaving such cases. However, in other matters, even the blind could see that a miscarriage of justice was occurring. Frankly, a lot has been said about the judiciary. Although Justice Tau came to the rescue of the CoA earlier in 2024 when she defended the credibility of the CoA and warned lawyers against discussing sub judice matters in both social and mainstream media, it seems many have lost confidence in the judiciary. While some judges have been accused of being executive-minded, others have been slammed for what one may call a lack of integrity.
For instance, the Chief Justice Terence Rannowane, is a man who has remained under the spotlight for quite a while now. Even though this is not a laughable matter, we are now a laughing stock. Consequently, the newly elected President, Advocate Duma Gideon Boko, has slammed the judiciary at the Gaoberekwe Pitseng burial in the Central Kalahari Game Reserve (CKGR) in December. Boko questioned the integrity of judges and some of their decisions, which he said, ought to be pro human rights. As it is, the judiciary appears to be politically polarised and the division has caused a concern. The nation would do well for itself by hastening to attend to this anomaly before most innocent people are wrongfully imprisoned or politically sentenced. Has the judiciary fast lost its integrity? Well, you be the judge.
Perhaps it may be that a lack of independence of thought has consumed the jurists to a point of abandoning their consciences? But has moral authority been swept under the carpet, dear esteemed jurists? Another straw that broke the camel’s back is the issue of recusal. It is now apparent that most judges are not willing to recuse themselves from matters even when it is crystal clear even to the blind that a conflict of interest exists. It would be wiser for judges to go to the drawing board at their earliest convenience. Even in the Intensive Care Unit (ICU), there is always hope for a miracle. All is not lost.
The Judiciary can still pick up the pieces and rebuild again. Nevertheless, what remains a critical fact is that the Judiciary is the last line of defence when the Legislative and Executive have failed. Let it be so! Otherwise, signs are that Batswana are ready to make justice themselves in the event the courts fail. It is a clarion call for a wake up from this deep slumber.
