Bcp/masisi case: chief justice plays his final hand

  • Chief Justice deposes to Affidavit in Masisi Application
  • BCP alleges CJ appointed Judges
  • Kokorwe stands by AG interpretation
  • Justice Mothobi  replaces Justice Motswagole


Justice Motswagole, on Monday April 23rd recused himself from hearing the Botswana Congress Party (BCP) application challenging the constitutional validity of Masisi’s appointment as President.
The Judge gave the reason for withdrawing from the matter as, “I have had informal interaction with the Attorney General on this subject.” The Attorney General, who was present in court did not move an application for his recusal nor was Attorney Dingake for the BCP afforded the opportunity to interrogate the Court as to validity of the recusal. No indication was given as to the nature of the “informal interaction” nor when such discussions took place.
By close of business of Monday, information reaching The Botswana Gazette, confirmed that Justice Mothobi had been roped in to replace Motswagole J, and constitute a panel of judges with Justices Tau J and Nyamazabo J.
The selection process for the presiding judges was done despite the protests by Dingake Law Partners who have complained to the Chief Justice through the Registrar of the High Court, as to the lack of transparency of appointment of Tau J and Nyamazbo J. Attorney Dingake is his complaint, informed the Registrar that his office had been contacted by one Boga Mgandla (the Bench Clerk for Motswagole J) on April 20th indicating that the Chief Justice had “allocated the matter” to a panel of judges but clarity was being sought as the clerk had subsequently recanted on who was going to preside over the matter.
In his correspondence to the Registrar, Dingake had accepted that the Chief Justice had the power to appoint more than one judge to hear the matter under the High Court Act but had asserted that the Chief Justice did not have the power to personally select the panel. The Botswana Gazette can confirm that at the time of going to print, there has been no response to the Attorney’s challenge on how the panel of judges was selected.
In an unexpected turn of events, documents filed with Court by the Attorney General at 8:49am Monday and subsequently confirmed to have been served on Dingake Law Partners in the late afternoon, reveal that the Chief Justice deposed to an Affidavit in support of the Attorney General against the BCP’s application.  The Chief Justice’s affidavit reveals that it was sworn to on April 20, the same day as Dingake Law Partners was contacted advising the BCP’s attorneys of the panel of judges. According to sources within the Attorney Generals Chambers the Affidavit was prepared after consultation with the Chief Justice upon receipt of the BCP application, and before the allocation of the two additional judges to hear the matter.
The correspondence between Attorney Dingake and the Registrar reveals that the bench clerk had in addition to informing the law firm of the panel hearing the BCP’s urgent application sought to confirm the date of argument before Motswagole J and the two additional judges.
Dingake Law Partners had not been informed that there was any potential conflict of issue arising between Motswagole J and the Attorney General. Investigations by the publication have been unable to ascertain when the “informal” discussions between the Judge and the Attorney General took place.
The Chief Justice by deposing to an Affidavit in support of the Attorney General and the Speaker, has become a witness in the legal proceedings, a controversial position to be in for a person in his position. Mired in controversy over allegations of allowing and facilitating executive intrusion into the independence of the judiciary over the last 3 years, the Chief Justice has once again raised a shadow over the independent role of the judiciary on the eve of his departure. The Chief Justice is said to be retiring from his position at the end of April.
In a short affidavit the Chief Justice states that his authority as the Returning Officer for the elections of the president under section 35 of the Constitution has not been invoked by anyone. The Chief Justice’s power to oversee and resolve disputes into matters of a presidential election arise under the provisions of section 38 of the constitution, which can only be invoked if an election occurred. The Affidavit is silent on the Chief Justice’s function when an election has not occurred and whether section 38 of the Constitution is relevant when an election has not occurred in parliament for the appointment of the president. The panel of Judges, however they are comprised, will be required to determine the relevance, if any, of their administrative head’s testimony before them. An interesting question arising from the Chief Justices affidavit and left to the court to grapple with, is why the Speaker, who was written to by the BCP after the inauguration of Masisi as president, did not refer the questions the party had raised to the Chief Justice in terms of the provisions he is now saying were not complied with.
According to the Affidavit filed by the Speaker, the Attorney General has raised various preliminary legal points. The Speaker claims that the Botswana Congress Party has no legal standing to move the application and in addition that the Court has no authority to intervene in the functions of parliament in addition the Attorney General asserts that portions of the BCP’s founding affidavit violate the rules of court.
Despite the preliminary legal points the Speaker admits the BCP’s contention that President Mogae took over the late President Masire after a parliamentary election while noting that an elections is not necessary on a proper reading of the law. Adopting the position made public by the current Attorney General and his predecessor Dr. Molokomme, the Speaker argues that there was a mistake in failing to amend section 35 of the Constitution and that despite this error there is no need to hold elections as the question of vacancy does not arise.
The BCP has stated that regardless to whether an error was made, section 35 of the constitution will only become operational once a vacancy has arisen due to a death, resignation or end of tenure. The difficulty of resolving these conflicting arguments will be central to the courts resolution of the dispute.