Judge Motswagole recuses himself from Masisi's case

Gaborone High Court Judge, Tshepo Motswagole has recused himself from a case in which Botswana Congress Party (BCP) is challenging President Mokgweetsi Masisi’s presidency.

Motswagole was assigned to preside over the case by the automated computer random Case Management System (CMS) late last week. But, Chief Justice Maruping Dibotelo exercised his powers under Section 6 of the high court Act to increase the panel to three judges by appointing two more judges - Tebogo Tau and Barnabas Nyamadzabo. Law experts say a three judge panel is a matter of practice meant to assist in the event there is a dissenting voice.

They say it is specifically meant to avoid and, or reduce appeal cases though it does not completely stop the aggrieved party from seeking further redress. But before the case could start and, or at a meeting of the three judges, Motswagole felt for the need to recuse himself in the best interest of justice. His recusal was confirmed to this publication by the Registrar and Master of the high court, Michael Mothabi.

He revealed that Chief Justice Dibotelo has appointed Justice Radijeng to replace Motswagole as the third judge. In his three page recusal ruling, Motswagole states that, after considering the matter and discussing with his fellow judges, “I have decided to recuse myself from presiding over this matter.”

The reasons being that earlier on and before the dispute arose, “I had expressed a personal view on the provisions in issue, in this matter to the Attorney General in an informal setting.” Motswagole said it will therefore “seem inappropriate for me to be part of the panel to determine the same issues” since a perception may be created that “I have made up my mind in the event I maintain the same view.

“If however, I change my view, it may appear that the Attorney General has had a prior opportunity to address me on the same issues where the opposite parties have not been afforded the same benefit. I have come to the conclusion that it will be in the best interest of justice to recuse myself as I hereby do.

I according make the following order: I recuse myself from presiding over this matter either alone or in conjunction with my other two colleagues.” In the case registered as UAHGB-000074-18, BCP appears as the first applicant appearing together with Member of Parliament for Selibe Phikwe West, Dithapelo Koorapetse and MP for South East, Samuel Rantuana. The respondents are the Speaker of the National Assembly Gladys Kokorwe, Attorney General and President Mokgweetsi Masisi as the third respondent accordingly.