Administration of Justice stumbles over BCP/Masisi Case

  • The most politically sensitive litigation in the country’s 52-year history
  • Justice Motswagole recuses himself from BCP/Masisi case
  • BCP decries lack of transparency in picking of judges
  • Says Dibotelo has no authority to appoint judges
  • Legal hawks express concerns over Tau and Nyamadzabo.



The Botswana Congress Party High Court litigation challenging the constitutionality of President Mokgweetsi Masisi’s appointment has hit an unexpected hurdle as Justice Tshepo Motswagole has decided to recuse himself from hearing the application.
The BCP filed its constitutional challenge to Masisi’s appointment on Thursday last week following the failure of the Speaker and the Attorney General to respond to their correspondence demanding that an election be held in parliament to confirm Masisi’s “automatic succession” to president.
The Botswana Gazette can confirm that the Urgent Application was initially allocated by the computerised Case Management System to Justice Motswagole, and later allocated two additional Judges, Justice Tau and Justice Nyamazabo by the Chief Justice. According to sources within the High Court the Chief Justice invoked a provision in the High Court Act that allows him to appoint more than a single judge to hear the matter.
The team of attorneys representing the BCP confirm that given the national importance of the application and its wide-ranging implications on the constitutional and democratic governance of the country, the move to increase the number of judges did not come as a surprise.
A member of the team has however raised concern at the lack of transparency in the selection process for appointing additional judges. According to the Attorney, the Chief Justice only has the power to increase the number of judges, but he lacks the authority to selectively appoint specific judges to the case. According to sources at the High Court, lawyers for the Botswana Congress Party on Monday raised their concerns with the Registrar of the High Court as to how the selection process for the panel was conducted and have in addition sought proof that the allocation was done by the Case Management System and not at the instance of the Chief Justice.
Before the Registrar could respond to the BCP challenge on the makeup of the panel of judges, an entirely new and unexpected intervention took place as Motswagole declined to hear the case. According to Attorneys for the BCP, on Monday 23rd April (yesterday), Justice Motswagole informed the lawyers that he was unable to proceed with the matter as he had “informally discussed section 35 of the Constitution with the Attorney General and expressed his views on the procedure for the appointment of a new president.” Justice Motswagole did not reveal whether he was in agreement with the Attorney General or the Botswana Congress Party.
Seen as a “rule of law judge” with inclination for a purposeful interpretation of the law to drive Botswana’s democratic and constitutional dispensation forward, the legal fraternity viewed the allocation of the BCP case to Motswagole favourably, while expressing concerns over the remaining members of the panel.
The BCP challenge, initially scheduled to be heard on 25th April for arguments appears unlikely to proceed on the merits as the parties will instead focus their attention on who makes up the panel of judges hearing, what is perceived by many political pundits as the most politically sensitive litigation in the country’s 52-year history.
Under the former President Ian Khama administration Chief Justice Dibotelo was critically perceived as playing a subservient role to the executive, allowing Khama to come to his assistance by invoking presidential authority to suspend 4 of the twelve judges who had been critical of the Chief Justice’s leadership of the Judiciary.  As a result of Khama’s interference into the judiciary in 2015, the independence of the judicial arm of government has become an area of concern both internationally and nationally as democracy and human rights organisations have downgraded Botswana’s democracy rankings.
In 2015, four High Court Judges, Dingake, Letsididi, Garekwe and Busang, in an important legal challenge sought to define the country’s constitutional principles on the separation of power, between the Executive and the Judiciary. The 4 judges had been suspended by Khama following a complaint by 12 judges that the Chief Justice was failing in his administrative functions. Khama suspended the 4 judges for allegedly undermining “the authority of the Chief Justice and acted in a manner that was damaging to the judiciary.” During the course of their litigation against the Chief Justice and the former president, the 4 judges were denied the opportunity to have their matter heard by a full panel of High Court judges. The Chief Justice, who was a litigant in the proceedings, as well as the Registrar was challenged by the Attorneys for the suspended judges as to the lack of transparency into the empanelling process. Despite correspondence from the Attorney General accepting that the determination by the court would have an impact on the principles of separation of power and that the matter was of considerable constitutional importance the matter was only heard by a single judge, Justice Tau. Writing on behalf of the Attorney General Nchunga Nchunga in a letter dated 10th September 2015 acknowledged that the 4 judges’ application and the “decision of the court will have far reaching consequences in guiding all the stakeholders and generations to come in handling similar issues.”
As a result of Justice Motswagole’s recusal it remains to be seen whether an entirely new panel of judges will be appointed to hear the BCP’s application, or whether Justices Tau and Nyamazabo will continue to sit on the matter with a new judge.
Questions have been raised in the legal fraternity as to why the judge took the decision to recuse himself as neither side to the litigation had made an application for his recusal. According to members of the legal fraternity the procedure to be adopted in such circumstances would have been for the judge to have made disclosure to the parties concerned and for one or both of them to then approach the court for the Judge’s removal. “It is surprising that a judge would have had such informal discussions with the Attorney General, but what is more surprising is that the judge opted to recuse himself without disclosing the nature of those discussions. It would seem that the judge differed with the Attorney General as to the procedure under section 35 of the constitution and that as a result the Attorney General felt he would not get a fair hearing,” opined an attorney not involved in the matter.
Sources within the judiciary reveal many of the judges have discussed and expressed views on the interpretation of Section 35 of the Constitution among themselves, with the majority of judges holding the same view (revealed to this publication). The “group think” of the judges could play a key role in the determination of the BCP’s legal challenge.
In 2015, at the height of the scandal surrounding the suspension of Justices Dingake, Letsididi, Garekwe and Busang, fellow signatory to the petition Justice Nyamadzabo wrote to then president Khama that “on proper reflection I have decided to withdraw entirely my association with the said petition and profusely apologise to the Honourable Chief Justice for everything said in the above-mentioned petition disparaging his character. When I attended the Mahalapye meeting leading up to the signing of the petition my sole intention was to hear out and seek to understand from our four (4) colleagues the challenges they faced. As things turned out I was soon caught up in group think which often results in poor quality decision making.”
The current vacancy of the judge to preside over the litigation, into the appointment of President Masisi and who will constitute the panel of judges and how they were selected, promises to be as controversial as the subject matter of the litigation itself.