Africa-Press – Botswana. High Court Judge Zein Kebonang has issued a stern rebuke against the Attorney General (AG) for attempting to undermine court proceedings. The judge said it strikes at the very foundations of the rule of law when government institutions aided by AG seek to disregard a court and undermine proceedings before it.
Kebonang said this when giving his reasons for refusing to recuse himself from a case involving the Directorate of Intelligence and Security (DIS) and its former Director General Isaac Kgosi.
The hearing was scheduled for the DIS’ main application, but it took an unexpected turn when the agency, represented by AG through Kgotso Botlhole (Botlhole Law Group), requested Judge Kebonang’s recusal from the case. Judge Kebonang swiftly dismissed the recusal application, stating that it lacked merit. However, what transpired in the courtroom on that day went beyond a mere legal dispute.
The battle between DIS and Kgosi can be traced back to a judgment issued by retired judge, Abednego Tafa, in June 2022. The judgment was in favour of Kgosi, directing the Botswana Police Service (BPS) and the DIS to return firearms, ammunition, and permits that had been seized from Kgosi’s residence.
The AG, had initially treated the matter as unopposed because the DIS opposing papers had been filed late. Dissatisfied with the judgment, the spy agency sought a stay of the decision pending an appeal to the Court of Appeal (CoA).
The CoA later upheld the appeal by the DIS, directing that the case be referred for case management and disposal in the High Court under a different judge.
Judge Kebonang’s involvement began when the Registrar of the High Court reassigned the case to him in line with the CoA decision. Kebonang said this administrative decision was made without his prior consultation, emphasizing that judges are not involved in the assignment of cases as it is done systematically without their influence.
DIS had also filed various notices related to the case before Judge Kebonang, and the matter was scheduled for a roll call/status hearing on the 11th of September 2023. The parties agreed to this date for argument. However, on the 22nd of September, just before the hearing, the DIS requested Judge Kebonang’s recusal.
Kebonang said Assistant Government Attorney Otlaadisa Kwape, who had not been part of the case earlier, demanded that all proceedings be halted until the DIS had exercised their right to appeal the recusal decision. According to Kebonang, Kwape sought to take over the proceedings, disrupting the court’s normal operation.
In his scathing response, Judge Kebonang emphasized the significance of judicial authority, the separation of powers, and the rule of law. “No person or organ of the state should interfere with the functioning of the courts, as doing so threatens the foundations of the rule of law. The Attorney General has a duty to protect public confidence in the administration of justice and should not engage in disruptive conduct,” Kebonang says in his reasons for turning down the request for recusal. He cited cases and legal principles to underscore the importance of upholding the dignity and authority of the court. Regarding the recusal application, Judge Kebonang refuted the grounds on which his recusal was sought. He dismissed claims that his twin brother, Sadique, had a personal friendship with Kgosi as irrelevant to his impartiality as a judge. He also clarified his role as a former Chairperson of the DIS Tribunal, emphasizing that it did not compromise his impartiality. Judge Kebonang also addressed as false a claim that he had been charged with the Kgosi in a criminal matter, noting that the charges were not accurate and had been reviewed and set aside by the High Court.
The judge criticized the behavior of Kwape, who he said knowingly made false claims under oath. He questioned his fitness to practice law and highlighted the importance of honesty and credibility for lawyers in upholding the justice system.
Source: Sunday Standard
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