President’s statement didn’t influence court - Justice Garekwe
Court of Appeal Judge, Mercy Garekwe says she wonders why President Advocate Duma Boko’s statement on fighting corruption touched a nerve in the Carter Morupisi case.
The judge said this when delivering a judgement in a case in which the Director of Public Prosecution (DPP) launched an appeal against a High Court decision seeking the appeals court to make a decision, ordering and directing that the appeal filed by the DPP against the judgments delivered by the High Court, be heard as an expedited one.
According to Justice Garekwe when she reads the entire sentencing judgment, more so the submissions made by attorney Dr Obonye Jonas representing Morupisi against the impugned statement, “I am at a loss why the mention of the President and his desire to curb corruption would touch such a nerve.”
She said the sum of the Respondent's submissions, explain in depth the ills of corruption and how it destroys the very fabric of the society and how it erodes the rule of law among other things. She said Dr Jonas referred the Court to numerous authorities which point-blankly call for imposition of stiffer penalties in corruption cases as a deterrence measure.
“He points to the aggravating factor(s) in respect of his client, the Respondent, as someone who bore the hefty responsibility of prudently husbanding the financial resources of Batswana.
“It is strange why a statement by the President, which goes nowhere near what Dr Jonas has attributed to his client, which was a public statement made by the head of State in an open gathering dealing specifically with issues of corruption, could solicit such reaction from the Respondent, his attorney and the court a quo,” judge Garekwe wondered.
She stated that from all the foregoing, and in conclusion, the Applicants have not only laid a firm basis for the granting of the orders sought but have importantly satisfied the Prinsan requirements on expedited appeals. Justice Garekwe indicated that the thought-provoking interrogation also evinces that there are good prospects of the appeal succeeding.
“As stated in the analysis part, it is imperative for this matter to not only be concluded but for it to be concluded on an expedited basis to avoid the likelihood of floodgates of litigation before the High Court should this Court refuse to grant leave for an expedited appeal.
“It is also important to note that based on the date that shall be allocated for the hearing of the appeal by the President, the Registrar of this Court shall issue notices to the parties on the dates for the filing of their respective heads of argument,” the Judge added.
The judge pointed out that it is more likely than not that the Court of Appeal will consider the statement to have been referenced in the context of the sentencing principles of the triad where the interests of the society are to be considered among others, and in so considering the interests of the society, judicial notice was taken of the remarks made by the President.
She stated that the other insinuations made suggesting possibilities of a meeting held between either Justice Walia or the Court of Appeal Justices and the President are clearly unfounded, unjustified and unnecessary averments intended, it would seem, to solicit sympathy for the Respondent from members of the society.
She said it would appear, from the reading of the court a quo's judgments, that they have been so influenced to a point where they have failed, to at the very least, traverse the entire sentencing judgment, dissecting it and making a reasoned decision, even if it meant they would have reached the same conclusion.
As it is, the Court of Appeal will be enjoined, as the High Court was, to do more than just focus on the meaning attributed to a sentence derived from a 25-paged judgment, Justice Garekwe said.