Readers of this paper and those that listened to my radio interview on Duma FM regarding the issue of Judge Advocate General at BDF have asked several challenging questions regarding the type of laws found within this military institution. But the short of the long story is that BDF is run by a separate law that was enacted by parliament and it is known as the BDF Act.
The Act also has its auxiliaries known as “rules and regulations” which are in fact the details on how to conduct the law and dispense justice. The BDF Act provides the skeleton while the regulations are the flesh of this body of law. As I mentioned in the radio interview, once someone swears his allegiance to the protection of the constitution and the state president, it is from that moment going forward that they immediately loose several of their constitutional rights.
From that moment going forward they are bereft of their right to association. It is from this point going forward that the soldier cannot identify with certain organizations and especially those which are political in nature. For instance, if one had been helping their uncle who was running for a political position with driving around that ceases the moment they are enlisted. Their freedom of association is completely taken away.
Next is freedom of speech. The individual who has now become a part of the military will no longer be allowed to say anything they wish to say. During training, some of the things that gets closely observed by instructors is to identify the more vocal members of the group and re-orientate them to the more introvert way of life in the military in as far as freedom of speech is concerned. In short they get muzzled.
Freedom of movement is equally curtailed. No other institution has control over their staff like the military does. In a literal sense, your movements have to be known around the clock. During the days of apartheid, the BDF leadership took this to far extremes by introducing escorts for soldiers who travelled to South Africa. Military Police members were assigned to soldiers travelling to that country and the cost was borne by the soldier and this came after permission was sought through writing.
This was one of the most serious abuses that were ever meted to BDF soldiers and as far as I am concerned, there must be retribution regarding this matter. One corporal working for Signals Corp used to travel to Soweto via Beitbridge in Zimbabwe in order to avoid spending his vacation with a burden on his side. The day the Military Intelligence had access to his passport and found out that he had been beating the system, he was fired without warning and without trial.
Once in the military, one is entreated to a completely new set of laws which are of course very strange in nature. Soldiers always have civilian friends, and often they wonder why the military subjects people to such inhumane laws. But these laws are necessary to create and maintain a healthy military force that can respond timely to the security needs of the country.
The question that still lingers is; what crimes are committed at BDF that would require the creation of a whole set of office to deal with these? That’s the office of Judge Advocate General. In Botswana’s military judicial system there are three avenues or routes that a soldier or officer would take if a crime has occurred. There is the Court Martial and the military would often pass certain cases to the civilian courts if they are not military in nature. Then there is the Summary Proceedings which we shall deal with here.
Summary Proceeding is where soldiers are tried for what may be termed as common nuisance crimes such as failure to attend Master Parade and spending the night away from the barracks. No other employee in the civil service would ever be prosecuted for spending the night away from their government accommodation.
These proceedings are the preserve of the commanding officer if the person tried is a non-commissioned soldier and in the case of officers, the trial would be conducted by a different commanding officer. The regulations set out in the BDF Act require the commanding officer to carry out an investigation to determine if the matter can proceed for trial.
Once the investigation is completed, the soldier in question would be given an official caution. This comes in the form of a charge sheet and it is mandatory that they receive it more than twenty-four hours before trial. The court setting would normally be the commanding officer’s office. Before the commanding officer spells out his verdict, they are obliged by the Act to ask the accused if they would be in a position to accept it.
If one gets a look at the way the regulations of the Act are laid out, the whole arrangement was arrived at with the sole purpose of dispensing justice. The regulations are so elaborate and they make provisions for justice. The accused is even allowed to bring any witnesses and at the end of it all, they can bring forth their mitigation before sentencing.
However, justice in the military is served differently for commissioned officers. A commissioned officer is not allowed to prosecute his own subordinate officers. He is however mandated to conduct the investigations and forward the findings to another officer at his level who is referred to as the Appropriate Authority and they usually are commanding officers elsewhere. It is these intricacies that JAG is coming to take care of.
It is these cases that have been tried at this level which are now requiring the services of the Judge Advocate General to review them and establish if they had been properly tried. In the past, the commander at BDF has acted as the reviewing authority and this was later passed on to command commanders such the Air Arm Command, Logistics Command and the Ground Forces Command.
