The principle of balance of probabilities provides that an occurrence is more likely to have happened than not on the basis of presented circumstances and evidence surrounding the occurrence. It means it is not only probable but believable. This principle is applied mainly in labour-related matters as opposed to proving beyond any reasonable doubt in criminal matters. The jaw dropping matter involving on one hand, the Honourable Chief Justice Terrence Rannowane and the Honourable Minister of State President Kabo Morwaeng and on the other the Honourable Judge Gaolapelwe Ketlogetswe, has gripped the nation and the world owing to its negative implications on the Rule of Law and the judiciary. These two values once circumvented for whatever reason and by whomsoever, have a negative direct bearing on the democratic credentials of any country that claims to be observing and promoting them. Botswana is currently in that space where the Rule of Law and the judiciary are in the spotlight for all the wrong reasons as a result of Ketlogetswe J alleging that the Chief Justice and the Minister attempted or indeed influenced him to subvert the law by denying Hon Dr Thapelo Matsheka his liberty in an urgent application he brought before him.
Because it is not clear at this stage as to whether he was influenced or not, I hold the view that the two gentlemen may have indeed attempted to influence him on a balance of probabilities given what he alleges and the less convincing response from the Chief Justice. Both of them have written the President with the confidential letter from Ketlogetswe J published in various media platforms for everyone to read. I am largely relying on the Ketlogetswe J’s letter because it is the one that lays bare his allegations as opposed to the bits and pieces from the Chief Justice’s. Over and above the latter’s, it does not in large measure discredit the fundamental points relating to the influence allegations except on largely peripheral and irrelevant issues. The following paragraphs are therefore my basis for arguing it is highly probable and believable on a balance of probabilities that he was pressured.
The point of departure should be the telephone calls between Ketlogetswe J, the Chief Justice and the Minister. It is these calls and the contents thereof that would culminate at the end of the day that Ketlogetswe J would have formed the opinion that the two gentlemen had tried to influence him. That said, it is not in dispute that the two judges discussed the Dr Matsheka’s matter as judicial officers. I believe this is what judges do. This is why the Chief Justice was not taken aback when Ketlogetswe J called him in order to appraise him on all and everything concerning the matter before him particularly that he verily believed the DIS did not present a winnable case as per its court documents. It was a high profile matter in all respects given the individual before court and that Lobatse had undergone a turbulence of sorts in en-route to Dr Matsheka’s spectacular and dramatic arrest by the rogue DIS on that fateful day after he had attended parliament. As a consequence, a huge public interest was expected. In the furtherance of the public interest was the political side of the case since some felt the arrest was politically motivated. On the basis that the Chief Justice and the Minister had a conversation with him and particularly that the Chief Justice dropped the President’s name on more than one occasion as alleged is reason enough that on a balance of probabilities, pressure to influence him is probable.
If it is accepted it is probable the Chief Justice attempted or indeed pressured Ketlogetswe J, the next point to be canvassed is to ask what the motive was for doing so. The Chief Justice knows very well that it is an unpardonable sin for the politicians let alone the President to be mentioned when judicial matters are discussed between judges. For the fact that the Minister called Ketlogetswe J on a judicial matter ‘way above his comprehension’ is a good enough reason to demonstrate that there was no legal input to the matter before the judge. And not that I am suggesting such legal input was called for. The probable motive therefore was to politically contaminate Dr Matsheka’s urgent application for political reasons by denying him his liberty. There is no other way in my view to interpret the involvement of politicians in a legal matter before a judge.
There are claims that the Chief Justice was concerned about the judge’s security. It is not clear who did the security assessment to determine whether there was indeed any security threat on Ketlogetswe J. He himself felt there was no security concerns for him. I personally watched Dr Matsheka’s court proceeding on social media platforms from day one up to the delivery of the judgement. People were peacefully excited to be part of the proceedings with no sign of security threat in and outside the courtroom or to himself for that matter. The import of the security concerns in my view is that Dr Matsheka had to remain in custody such that the imagined security threat becomes deescalated. Given that security was escalated when near riots almost visited Lobatse when the community nearly took the law into its hands, it defies logic why the same would not be escalated when a high profile individual was brought to court purportedly on the basis that he had a hand in the young boy’s demise. They say hindsight is the best teacher. It is highly probable the imagined security issue was concocted to put pressure on the judge to rule against his judicial conscience and the law.
Probably upping the ante on exerting pressure, Ketlogetswe J continues to state that the Chief Justice told him the President would be embarrassed if Dr Matsheka was released. To start with, there was no need for the President’s name to be dropped in a judicial conversation between the two as already said. Any judge would be shocked why the President’s name would be dragged in a judicial conversation. The Chief Justice would and should have known that he may have raised alarm bells on Ketlogetswe J by repeatedly asking whether Dr Matsheka would be released and particularly that he was firm that his conscience and evidentiary facts before him dictated that he releases him. Had the Chief Justice said to himself: this far and no further would Ketlogetswe J probably have not elevated the matter any further even if he may have felt he was pressured or an attempt in this regard was the case. Why should the President be embarrassed by a judicial decision delivered by a competent judicial officer? If this on the balance of probabilities is not a sign that undue pressure and influence was not exerted on Ketlogetswe J, there will never be any.
As if that was not enough, it would appear from the confidential letter that the Minister of State President Kabo Morwaeng came into the picture presumably to sweet-talk or arm-twist Ketlogetswe J. While it is not clear from the letter whether the Chief Justice had talked to the Minister about the conversation over Dr Matsheka’s matter, it is highly probable to suggest they may have after all, talked to each other. It may very well be that because the Chief Justice was not successful, the Minister would be better placed to perform the last roll of the dice. So how does the Chief Justice hit back?
From what has been reported in the media about the Chief Justice’s response to Ketlogetswe J’s allegations, nothing much punches the holes to meaningfully discredit the said allegations apart for the desire to have telephone conversation records availed to him; that he is considering legal action for defamation and so on. I would have expected the Chief Justice to come out gun blazing with respect to say inter alia, that he never raised issues like the President would be embarrassed if Dr Matsheka was released; that he sought as alleged by Ketlogetswe J, to influence the judgement on Dr Matsheka. This because the allegations have far reaching implications on his standing personally and in terms of the position he holds as head of the judiciary and how they further dent the already dented image of the judiciary here and elsewhere. The Chief Justice is very much alive to the fact that the judiciary has been in the news for all the wrong reasons and his alleged pressure on Ketlogetswe J was likely to explode on his face. He must surely have been aware of the characters of his judges and whether Ketlogetswe J could play ball. I really hope the Chief Justice has something up his sleeve to vindicate himself and restore his integrity. I really do!
It is for the arguments raised above possibly complemented by the principle of the balance of probabilities that I hold the view Ketlogetswe J was pressured by the Chief Justice and Minister Morwaeng to rule against Dr Matsheka. While the onus is on Ketlogetswe J to prove his allegations given the saying that he who alleges must prove, the Chief Justice must on the other hand present a solid response nevertheless. The Minister must explain why he abandoned his political duties to call Ketlogetswe J on a matter where his involvement was not only undesirable but has caused unpardonable reputational harm to this Republic. But I can bet my last Pula nothing will be done to him because he was on the balance of probabilities pushing the agenda of his principal because he could not undertake such mission without the concurrence of his principal. It should be fair suggest the Minister has been successful with other judges on this bad mission but that this one went horribly wrong. It is my earnest hope that the Chief Justice will prove me wrong as this matter unfolds because it appears the more it unfolds, the more it grows many legs. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Covid-19 is still our immediate health threat. Let us not lower our guard.