Three High Court judges are reported to have recused themselves from the Hon Pelonomi Venson-Moitoi versus Botswana Democratic Party case. One is reported to have presented a doctor’s certificate to the effect that he was not well enough to continue with the case while the other two have indicated that they have close family ties with both Hon Venson-Moitoi and the President Dr Mokgweetsi Masisi respectively. These are reasonable grounds for recusal to which I don’t have any qualms. I also do not have qualms with the recusal of judicial officers because it is normal occurrence in their line of duty particularly that reasons would have been availed.
What is of concern to me though, are the implications of these judges in future litigations. That is, should they recuse themselves from future legal matters involving the same persons in the form of Hon Venson-Moitoi and the President? Should they recuse themselves or not in other matters where the BDP is party thereto but with high profile individuals directly or indirectly not implicated? Do judges have well-defined rules governing recusals such that down the line, such recusals are not interpreted as self-serving? May be that is why Justice Chelameswar said: “We mustn’t allow recusals to be used as a tool to manoeuvre justice, as an instrument to evade judicial work.” The Constitutional Court of South Africa held in 1999 that “The nature of judicial function involves the performance of difficult and at times unpleasant tasks and to that end judicial officers must resist all manner of pressure, regardless of where it comes from.”
Before dealing with the question as it obtains in the title of this article, I would like to make an observation: In the case under consideration, the Applicant is Hon Venson-Moitoi while the Respondent is the Botswana Democratic Party. The President is not cited because if he was, the matter wouldn’t have seen the light of day owing to the ‘disbarment’ of any legal or civil litigation against the President (Section 41 of Botswana Constitution). As I understand it (and I stand corrected as always), one of the Hon Venson-Moitoi’s prayers was that the elective congress in Kang be stopped until her demands were met. Why then would a judge recuse himself from the BDP case by citing that he has a family connection with the President when the President himself is not a Respondent? It is acknowledged that the President’s name would inevitably feature in court papers of this matter by association as a BDP member. I don’t have any issues with the judge who recused himself with regard to Hon Venson-Moitoi because she was a direct Applicant in the matter. I am just saying!
Now that a judge has recused himself from the BDP case because of family or other relations with the President and presumably by extension his immediate family members, does it mean that such judge should in future not sit in a case involving the BDP as an organisation that can sue or be sued? This question also goes for the other judge who recused himself on account of connection of one sort to Hon Venson-Moitoi and her immediate family members. Indigenous judges are firstly Batswana who enjoy all civil rights like the right to belong to political parties as do the rest of us before they become judges. They are voters like the rest of us who are expected to vote in the general election later this year. If we assume for purposes of this conversation that the judge who recused himself because of the President’s connection is also a BDP member who is conflicted because he is a member of such party, it makes absolute sense for such recusal. Would he recuse himself in a criminal matter for example where a known BDP member to himself appears before him? It would be unreasonable for him to know all BDP members in which case it wouldn’t be reasonable for him to recuse himself if such members appeared before him.
Given that Botswana has a small population in which judges would more likely know a fair number of litigants who appear before them by virtue of say coming from the same village; would have attended the same schools – be they high or tertiary; would have had a relationship of some sort, would it be reasonable for such judges to recuse themselves if such people appeared before them? I don’t think so. I argue therefore that there was no reason for the judge who recused himself from the BDP case on account that he had a relationship with the President. Judges are required to determine matters before them without fear, favour or prejudice. Like I have said, I accept that recusal is the judicial function of judges exercised under exceptional circumstances. In this instance I am afraid, there were no such exceptional circumstances given that the President was not a respondent in his official or private capacities. Judge Ian Kirby is reportedly a friend to the Khama family yet in the Motswaledi v/s Botswana Democratic Party where Motswaledi was challenging his expulsion from the BDP by Lt Gen Ian Khama, he was one of the judges who sat and determined that matter at the Court of Appeal which Khama won. I want to believe that Justice Kirby sat and presided in other matters involving Khama in which he lost. In this regard, family considerations did not play any part. It was a matter of applying the law and nothing else.