08 Jan 2025

Judgment in a matter in which former Permanent Secretary to the President, Mr Carter Morupisi applied for the recusal of Justice Mercy Garekwe in an expedited appeal filed by the Directorate of Public Prosecutions (DPP) will be delivered tomorrow.

The expedited appeal by the DPP followed a High Court judgement that set aside the imprisonment of Mr Morupisi, which was delivered by the Court of Appeal late last year. 

Justice Garekwe, who was supposed to deliver judgment on the expedited appeal today, indicated that the judgement would also be delivered tomorrow at 2pm, but only in the instance that she dismissed the application for her recusal. In its opposition to the application for recusal, the DPP indicated that the defence was abusing the court process by leaving it until too late to file the application. 

It indicated that the defence was long aware of the circumstances raised in the application for recusal. The DPP argued that no actual bias had been set out in the defence’s founding affidavit, and that the presumption of impartiality had not been proved.

The DPP therefore pleaded for the matter to be dismissed with costs on punitive scale. However, the defence argued that the reason they seemingly filed late was that they elected to do a full application, and that filing could be done anytime as long as the outcome of the matter at hand had not yet determined. 

The defence further argued that although Justice Lakhvinder Singh Walia's empaneling of Justice Garekwe may be procedural, it was a matter of justice not being seen to be done. The defence also indicated that its application was not an assault on the integrity of Justice Garekwe, but was filed in the interest of justice for their client. 

In his application for recusal, Mr Morupisi argued in his affidavit that it was clear that Justice Garekwe was heavily embedded in the cause and had a desire to see him jailed as she tried to persuade the DPP not to abandon its relief of stay of execution pending judgement. He argued that her actions were equal to coaching a litigant. 

"This shows that Judge Garekwe is biased, or at the very least evinces an apprehension of bias on the part of the presiding judge against me. The kernel of my complainant is that Judge Garekwe is partisan and prejudicial against me," he argued. 

Mr Morupisi argued that Justice Walia, whose ruling on his sentence he was complaining about, picked Judge Garekwe to hear the expedition application. 

"This is a case where a man picks or chooses a judge to preside a case in which he has an interest in," he said. 

He argued that it was clear that Justice Walia had deployed Justice Garekwe to rule in favour of the state. He said that to ensure justice, the power or authority to empanel should have been given to the Chief Justice given that he is totally unconnected to the matter. 

Mr Morupise said that he had reservations with Justice Garekwe since she previously adjudicated in a matter at the High Court about the liquidation of Capital Management Botswana Pty Ltd (CMB), which he said was alleged to have received laundered money from Botswana Public Officers Pension Fund (BPOPF). 

"Because she once dealt with the aforesaid matters, Justice Garekwe came to the seat of justice with preconceptions about my involvement in crime. It is these preconceptions that demand that she must recuse herself," he said. 

He argued that such an action by Justice Garekwe would only be honourable. ENDS