The Carter Morupisi corruption case, which ended 2024 on a high note opens 2025. Morupisi was convicted on counts of corruption and money laundering whose sentences were non-custodial. He was home and dry after escaping with a lenient sentence given the conviction on very serious criminal acts. In other words, the lenient sentences were not commensurate with the corruption charges and their prescribed sentences. But because he deeply craved for political office, the criminal record (conviction) stood to prevent him from achieving that, according to Electoral Act. To ‘erase’ the conviction and sentences he appealed to the Court of Appeal (CoA), which in turn enhanced the Gabanagae J sentence with a custodial sentence of seven years. Before the CoA enhanced his sentence, Morupisi attempted to withdraw the appeal only to be told it was too late as per the Rules of Court. Although Morupisi has the right to challenge any judicial decision he deems unfair, I the latest decision of the High Court, which set him free, is neither tenable nor sustainable. He is pursuing the Stalingrad tactics Jacob Zuma has become known for. When the legal merry-go-round around Morupisi’s case continues, the matter will ultimately come to finality at the CoA where the matter is currently undergoing legal scrutiny from the bench to the bar over a plethora of legal arguments. Now that the CoA has granted the State the right to appeal the High Court judgement where the former’s 6 October 2024 sentencing judgement has been set aside and replaced with the Gabanagae J’s where he offered Morupisi a lease of life by not ordering a custodial sentence, the arguments during appeal hearing will be anchored on two grounds. And these are whether or not the High Court is permitted in law to overturn the CoA decisions and whether, Walia JA’s ‘offending comment’ is a violation of Morupsi’s right to a fair and impartial trial. There are strong arguments for and against whether or not the High Court is permitted in law to overturn CoA decisions. Some are arguing compellingly so, that the CoA decisions cannot be overturned by the High Court while some, and compellingly so as well argue to the contrary. Someone commented in the raging public discourse on the subject matter that “The Botswana Constitution Section 105 unequivocally establishes the Court of Appeal as the highest appellate court in the land. Its decisions are binding on all subordinate courts including the High Court. By overturning a judgement of the Court of Appeal, the High Court has directly contravened this position and undermined the judicial hierarchy. This is an egregious departure from constitutional norms and sets a dangerous precedent.” Some argue very strongly that while they concur on the hierarchical supremacy of the CoA vis-à-vis other courts, they strongly believe where exceptional circumstances exist like they believe is the case in the subject matter (reference to the President comment by Walia JA), overturning CoA decision is warranted particularly if that arises from a constitutional issue. I do not agree with this view because in the case under discussion, the High Court failed to demonstrate exceptional circumstances save to restate what Morupisi’s legal team submitted in their court papers and in oral arguments. I believe the CoA will agree with the dissenting judgement in so far as returning the matter to it is concerned.
The inevitability
Now that Garekwe JA has allowed the State to expeditiously appeal the High Court judgement that amongst others liberated Morupisi, the writing is on the wall that his freedom and liberty will sooner, rather than later, come to the end. This because the CoA will heavily rely on the fact that it is the apex court in the land and whose decisions cannot be overturned by a subordinate court. In this regard, it will be reasserting its hierarchical supremacy. The CoA will go further to nullify the decision of the High Court whose effect was to rescind the seven-year sentence of the CoA and substituting it with Gabanagae J suspended sentence. The seven-year custodial sentence will be reinstated forthwith with the result that Morupisi returns to prison to serve the seven-year sentence.
The legal merry-go-round or the legal spectacle arising in the main out of Morupisi’s aggrievement that Walia J statement in the sentencing judgement gravely offended his constitutional right to a fair and impartial treatment by the CoA has dramatically and spectacularly backfired on him.
So far and through the decisions of the CoA, it has become evident the challenge of the statement was, and still is a bad legal route Morupisi undertook. In the result, the win at the High Court will go down as hollow victory that would be short-lived and inconsequential. I am prepared to be persuaded otherwise as always. Judge for Yourself!
adamphetlhe08@gmail.com