09 Jan 2025

An appeal against a High Court judgment which freed  former Permanent Secretary to the President, Mr Carter Morupisi from custody will be heard by the Court of Appeal this month.

This followed a Thursday Court of Appeal decision by Justice Mercy Garekwe that an appeal against judgment delivered by the High Court judges, Justices Dr Zein Kebanang, Reuben Lekorwe and Masilo Mathaka be heard on an expedited basis during the January 2025 appeals session.

The state approached the Court of Appeal seeking to expedite the hearing against the High Court decision, which set aside Court of Appeal decision to send Morupisi to prison for seven years, and replaced it with a previous non-custodial sentence.

In her decision, Justice Garekwe of the Court of Appeal said the High Court decision disregarded numerous decisions of the Court of Appeal that it was the Supreme Court in Botswana. She agreed with the applicants that the decision of the High Court would undermine the structure of the court as set out in the constitution.

She said it was her view that the applicant’s case had strong prospects of success as the High Court lacked jurisdiction to set aside decisions of the apex court. She said the High Court had not justified its conclusion that where constitutional rights were breached, it was then clothed with jurisdiction to set aside the decisions of the Court of Appeal.

She said the issue ought to be brought to finality, adding that previous decisions of the Court of Appeal found it to be the final court in Botswana and its decisions were final and that the constitution of Botswana created a judicial hierarchy.

Justice Garekwe said the High Court decision seemed to have disregarded the principle of finality, adding the decision would lead to unending litigations and erode public confidence in the judicial processes of the country.

Justice Garekwe said in reading the High Court sentence, she was at loss as to why the mention of the President and his desire to curb corruption would touch such a nerve. However, she said it was more likely than not that Court of Appeal will consider statements to have referenced in the context of the sentencing principles of the triad, where the interests of the society are to be considered among others.

She said the decision of the High Court puts into question the rule of law in the country as well as the legitimacy of the apex court hence the issue needed to be put to rest. She said for the respondent to have alleged and the court below agreed with them, that the Justices who penned the impugned sentencing judgment were biased in favour of the desires of the President, was an allegation that hits at the centre of the principle of separation of powers.

“It is important for court to urgently attend to the appeal and conclusively resolve all these issues,” she said.

Morupisi was found guilty of corruption and money laundering by Justice Chris Gabanagae of the High Court, and given a non-custodial sentence, which he appealed and later tried to withdraw unsuccessfully, and sentenced to seven years in custody instead.

He then applied to the High Court arguing he was not tried by an impartial and independent court and he be set free from custody, a decision the High Court agreed to, consequently leading to the current state. ENDS