09 Oct 2024

Gaborone High Court has dismissed an application for Justice Chris Gabanagae to recuse himself from a case in which the Umbrella for Democratic Change (UDC) and 10 others have challenged the appointment of new commissioners of the Independent Electoral Commission (IEC).

Delivering the ruling on October 8, Justice Gabanagae said he would not recuse himself from the three-man panel made of himself and Justices Michael Leburu and Ookeditse Maphakwane.

"The applicants have not made a case for my recusal,” Justice Gabanagae said, adding that reasons for the decline would be communicated later.

Prior to the decision, the applicants’ attorney, Mr Wanano Lumbile said Justice Gabanagae during his tenure as the chairperson of the Delimitation Commission had worked closely with some of the respondents before their appointment as commissioners of the IEC.

He said it was conceivable that Justice Gabanagae had related with them and was now tasked to deal with a matter opposing their appointment.

"The commission discharged its mandate in a period of nine months in close proximity,” he said, adding that during the period impressions might have been concluded creating apprehensions of biasness.

He emphasised that the applicants were not saying he would be biased, but were saying he might be biased. He said although judges were impartial judicial officers, a judge must recuse himself not because an application had been made, but because there was reasonable apprehension of bias.

However, attorney Mr Itseng Mothibamele on behalf of the respondents said the only fact from the application was that Justice Gabanagae was once appointed chairperson of the Delimitation Commission and had worked with some of the respondents.

Other than that, Mr Mothibamele said, the case was based on suspicions, rumours and gossip. He said judges often presided over cases involving their colleagues and that there were no special circumstances to disqualify Justice Gabanagae from the case.

The recusal application emanates from a case in which the UDC and 10 other opposition parties have approached the court on a certificate of urgency seeking the court to review and set aside the decision of the Judicial Service Commission (JSC) to appoint Maotoanong Sebina, Uyapo Ndadi, Elizabeth Masire, Thebeyame Tsimako and Wame Thanke as IEC commissioners.

The applicants, who also cited the Attorney General and the Botswana Democratic Party as respondents, argued that pending the determination of the review application, Sebina, Ndadi, Masire, Tsimako and Thanke should be interdicted from discharging any functional duties as commissioners of the IEC.

Papers filed with the court, indicate that the UDC and others argue that the IEC commissioners were appointed by the JSC disregarding the recommendations of the All Party Conference as the law stipulated.

However, the respondents in their answering affidavits have said the applicants failed to cite the Minister for Presidential Affairs who convened the All Party Conference, and further argued that the said meeting of the All Party Conference fell short of fulfilling the Constitutional requirement. The application of the interim interdict has been scheduled for October 18. ENDS