BCP withdraws Masisi Appointment Case

  • Changes in Presiding Judges raises uncertainty
  • AG given audience from AOJ without BCP consultation


The Botswana Congress Party (BCP) has withdrawn its constitutional challenge into the appointment of President Mokgweetsi Masisi due to what they allege to be unexplained and persistent changes to the panel of presiding judges hearing the matter resulting in an unlikely, from their perspective, fair hearing.
The controversial turn of events has left one of the single most important legal questions into the democratic governance of the country, unanswered. The BCP had filed legal proceedings seeking to declare that parliament was in violation of the constitution for failing to hold a parliamentary election for the president and interpret the constitution in accordance with their interpretation of a more democratic understanding of automatic succession. Withdrawing the litigation, lawyers for the BCP argued that the numerous unexplained changes to the panel of judges had undermined the party’s trust in the legal proceedings and caused them to fear that the court would not objectively hear and determine the case.
Scheduled for argument on the merits of the application on 26th April, the panel of High Court judges comprising of Justices Tau, Nyamazabo and Radijeng were instead forced to hear an application by the BCP for leave to withdraw the constitutional challenge. According to the proceedings the central complaint by the BCP was that they would not being afforded a fair and impartial hearing due to the conduct of the Chief Justice and the Administration of Justice in appointing judges to the panel. The court allowed the BCP to withdraw the proceedings but punished the political party with punitive costs.
A day prior to the scheduled hearing (Wednesday 25th April), the Registrar of the High Court issued a rebuttal to an article carried in the Sunday Standard (22nd April 2018) which alleged that the Chief Justice had interfered with the appointment process of the judges hearing the case. According to the statement, the Registrar denied that Chief Justice had “stepped in” and overrode the selection made by the Case Management System. The Registrar confirmed that the Chief Justice had personally selected the panel of judges but had “done so in terms of Section 6 of the High Court Act, which empowers him to empanel more than one Judge.”
The High Court Act, according to lawyers consulted by this publication allows for the Chief Justice to direct that more than one judge hear important matters, but the act does not provide for the Chief Justice to hand pick the panel, “The Chief Justice, in important constitutional matters may decide that more than one judge is necessary but each of the new members of the panel would have to be selected by the case management system to ensure impartiality and transparency. The decision to appoint more than one judge and how those judges are selected has to be beyond reproach, it needs to be entirely open and transparent to ensure that the litigants have a fair day in court. This open and transparent process is even more important in weighty constitutional matters that impact the political landscape of our country at a time when the independence and impartiality of the judiciary is under scrutiny both at home and aboard,” advised one lawyer.
The BCP filed its constitutional challenge at the High Court on 18th April and records reveal that the matter was allocated by the computerised case management system to Justice Motswagole. According to documents filed with court the Attorney General filed their Notice of Opposition on April 19, and recorded Justice Motswagole as the sole judge dealing with matter. The Chief Justice had not appointed a panel to hear the proceedings by the end of the day of the 19th.
In late August 2015, Chief Justice Dibotelo attended a judicial conference for Southern and East African Chief Justices. Under the theme “Guaranteeing the Right to a Fair Trial in Africa; Showcasing Best Practice” Dibotelo, accompanied by justices Makhwade and Tau lamented that he was in an undesirable position as he had to appoint a judge in a matter in which he was involved, the litigation arising from former President Khama’s suspension of justice Dingake, Letsididi, Garekwe and Busang. Dibotelo had appointed Tau J to hear the matter and had refused to agree to the suspended judges request that a panel of judges from outside Botswana be appointed.
The Chief Justice’s forum adopted a resolution to comply with international standards of judicial independence and impartiality as contained in treaties such as the African Union and United Nations covenants. Botswana, under its obligations to the United Nations and the African Union, as confirmed by the Chief Justices Forum, has undertaken to ensure transparency and openness in the appointment of judges to hear cases to ensure the utmost level of impartiality.
The BCP, through its Attorneys argued last Thursday that after they received the Notice of Opposition events unfolded that caused it to have concerns as to the impartiality of the judiciary.  According to correspondence filed on record, Justice Motswagole’s Clerk contacted Dingake Law Partners on 20th April and informed them that the matter would be heard by a full bench of three judges that included Motswagole J. The names of the other 2 judges and how they were to be selected was not disclosed. The firm sent a letter to the High Court questioning the procedure and what motivated the decision to appoint the two additional judges. Investigations into the Court Record reveal that the Registrar did not respond to BCP’s lawyer’s queries.
The initial documents filed by the BCP reveal that the matter was scheduled to be heard, for setting dates for filing additional documents and heads of argument before Motswagole J on 23rd April.
At 0849 hours on 23rd April, shortly before the scheduled hearing, the Attorney General filed their response to the BCP’s application. The Attorney General’s documents reflected the panel hearing the matter as comprising of Motswagole J, Tau J and Nyamazabo J. The BCP, according to revelations made in subsequent arguments, had not been formally informed of the names of the other 2 judges and questioned how the Attorney General was privy to such information when they as the litigant initiating the proceedings had neither been informed nor involved in the process.
The Registrar in his public statement rebutting the Sunday Standard article however reveals that “The Hon. Chief Justice acted in response to a request by the Attorney General who wanted the matter to be heard by a panel of three judges.” The Registrar does not reveal the date nor the manner in which the Attorney General reached out to the Chief Justice to empanel a full bench. According to court proceedings the BCP was not informed of this request by either the Attorney General nor the Chief Justice.
“Between Friday April 20 and Monday April 23rd, the Attorney General was somehow informed that his request to have a full panel appointed to hear the matter was acceded to, in addition he was also informed as to who the panel was. What is unusual is that the Applicant the BCP, and their lawyers were not included in this process. If this is correct it would certainly raise questions of bias in the eyes of the litigant who was not included in the process, as the test is whether in their perception they would be afforded a fair hearing,” said the lawyer consulted by The Botswana Gazette.
The Attorney General’s pleadings reveal that the Chief Justice signed an Affidavit, making him a witness and party to the pending proceedings, on behalf of the Respondents (represented by the Attorney General) on 20th April, the same day allegations surfaced that a panel of judges would preside over the matter.
The hearing of 23rd April, Motswagole J indicated, that he was unable to preside over as he had informally discussed the matter with the Attorney General before the proceedings had been launched. Adopting the legal standard of “perception of fairness” as the basis for his recusal, Motswagole J stated, “A perception may be created that I have made up my mind in the event I maintain the same view.” Motswagole J concluded that in the interests of justice he would cease to preside over the matter either alone or in conjunction with his two colleagues. In open court no indication was given as to which judge of the High Court would take his place, contrary to the statement issued by the Registrar that indicated that Motswagole J had advised that Radijeng J would replace him.
Correspondence from the High Court dated 24th April and signed by Principal Clerk of Court, Mpho Nkgowa reveals that contrary to the Registrars rebuttal, the matter had been reassigned, before 8:30am on 24th April to Mothobi J and not Radijeng J. Investigations by The Botswana Gazette, reveal that subsequent to Motswagole’s recusal the electronic case management system automatically allocated the matter to Mothobi J.
Investigations further reveal that the case management system consists of various electronic layers that record the history of the litigation and allows various personnel at different security levels to input and amend information on the electronic case record. After having received official notification of Mothobi J’s appointment to hear the matter, according to the proceedings, the BCP’s attorney received an urgent communication to attend court (on the same day, April 24th). The BCP’s pleadings reveal that upon attending the meeting they found Justice Tau, Justice Nyamazabo and Justice Radijeng with the Attorney General in the judge’s chambers.
In spite of being reminded of the applicant’s complaint to the Chief Justice and the Registrar as to the selection process of the panel, and that the lack of response was creating a perception of bias, the judges indicated that they will proceed with the case on 26th April, with or without the applicants.
Information reaching The Botswana Gazette reveals following its attorney’s attendance at court and due to the Chief Justice’s “unrelenting refusal to address its concerns”, the Botswana Congress Party convened an urgent meeting at which it was decided to withdraw the proceedings. According to sources within the party, concerns were raised that they would not be afforded a fair hearing. “This matter was of huge democratic and constitutional importance, it was never about winning or losing the case but for the court to clarify the procedure in accordance with international principles of democratic governance. The possibility of a biased judgement against the BCP would have a huge negative impact on the nation, this we could not allow to continue given the increasing perception of bias over the appointment procedures adopted by the Chief Justice and confirmed by Motlhabi. Given the lack of response to our correspondence asking for explanations, coupled with and the misinformation issued by the Registrar a fair and impartial hearing, in our mind, was impossible.”
The question on the constitutionality of “automatic succession” that has plagued the country since its introduction 21 years ago remains unanswered by the court.