High Court Judge Dr. Zein Kebonang has provided an extensive justification for his refusal to recuse himself from the corruption case involving former Permanent Secretary to the President, Carter Morupisi. In a comprehensive judgment, Judge Kebonang emphasized his commitment to impartiality, saying that his decision was grounded in legal principles and guided by the broader interests of justice.
The recusal application, submitted by the Attorney General (AG), argued that Judge Kebonang’s continued involvement could potentially undermine public confidence in the judiciary. However, the judge dismissed these arguments, maintaining that the application lacked sufficient grounds to justify his disqualification.
Judge Kebonang began by reaffirming the presumption of judicial impartiality, which he described as a “cornerstone of our legal system.” He quoted the Court of Appeal in Infotrac v. Debswana Diamond Company, stating: “Judicial officers are presumed impartial unless there is cogent evidence to the contrary. Mere apprehension by an applicant that the court is, or will be, biased, however strongly that feeling might be, will not suffice.” The judge emphasized that this presumption could only be displaced by substantial and credible grounds demonstrating a reasonable apprehension of bias.
The judge elaborated on the objective nature of the test for recusal, which requires that claims of bias must be assessed from the perspective of a reasonable and informed observer. “The threshold is high,” he said, referencing the Attorney General v. Isaac Kgosi case. “Apprehensions of bias must be substantial, not based on mere subjective perceptions or imagined grievances. The test is whether a reasonable, fair-minded observer, properly informed, would conclude that there exists a real possibility of bias.” The AG’s application pointed to past remarks and decisions by Judge Kebonang as grounds for a perception of bias. Addressing these allegations, the judge systematically examined the recognized criteria for judicial disqualification. He asserted: “I hold no personal or financial interest in this case. Any knowledge I may have about related matters is incidental to my judicial duties and does not affect my impartiality.” He further denied having any prior relationship or inappropriate contact with the parties that could compromise his neutrality.
Judge Kebonang also rejected claims that his conduct in related cases created an appearance of bias. He clarified: “My rulings and comments have been strictly within the boundaries of judicial decorum and duty. A judge is not disqualified merely because their decisions or observations are unfavorable to a party.”
The judge warned that entertaining baseless recusal applications could have far-reaching implications for the judiciary. “Judges have a duty to preside over cases unless there are compelling reasons for disqualification. To allow unsubstantiated applications is to risk opening the door to forum shopping and undermining judicial independence,” he said. Citing legal literature, he reiterated: “Judges do not choose their cases, and litigants do not choose their judges. The proper administration of justice demands that judges remain resolute against unwarranted challenges to their authority.”
Public confidence in the judiciary was another central theme of Judge Kebonang’s ruling. While acknowledging its importance, he argued that decisions on recusal should not be swayed by public opinion or external pressures. “The judiciary must maintain its integrity by resisting undue influence, even when faced with public discontent,” he said. Referencing international jurisprudence, he added: “Justice must not only be done but must manifestly be seen to be done—yet this cannot mean succumbing to every claim of perceived bias, however tenuous.”
He emphasized the judiciary’s role in upholding the rule of law and safeguarding impartiality. “The principle of judicial impartiality is not merely a shield for judges but a cornerstone of public trust in the judiciary. It is a principle that must be preserved against all unwarranted attempts to erode it,” he said.
