Botswana past presidents Festus Mogae and Ian Khama face a constitutional faux pas after it emerged that they may have, illegally , jailed a mentally challenged convict.
This emerged from a judgement in which Gaborone High Court Judge Tshepo Motswagole found that the continued incarceration of Sergeant Batshani by Botswana Presidents between 2002 and 2015 was illegal.
At the time Mogae and Khama served as Presidents of Botswana respectively.
While Motswagole found that the action of the President was illegal and that Batshani sought a number of declaratory orders among them those of Constitutional nature, he referred the matter to the Court of Appeal for guidance describing the case as matter of public importance.
According to papers before the Court, Batshani was arraigned and tried on an indictment of murder and found guilty in 2002 but insane at the material time.
The result was that the trial judge made a report to the President (Mogae at the time) who was empowered to determine his fate. In the interim, the judge directed that Batshani be remanded in custody as a criminal lunatic. In 2003, the President issued a presidential confinement order directing the confinement of Batshani at the then Lobatse Mental Hospital. However, he was subsequently transferred to Lobatse State Prison.
“The crux of the matter is that Batshani was so confined notwithstanding the subsequent recommendations by two separate Medical Health Boards to the President for his release on 15 January 2006 and 20 November 2020 respectively with an unfavourable report, not attributable to his mental status in between on 6th March 2008,” Motswagole noted.
Court records show that Batshani was moved from mental facility to Lobatse Prison on October 2007 along with others persons considered to be ring leaders following acts of protest against the institutional authorities.
In 2014 he approached the High Court seeking an order compelling the President to release him. A consent order was issued “directing the President to take all necessary steps to cause an inquiry into the mental health of the plaintiff (Batshani).”
The outcome of the inquiry was a recommendation for his release and he was released in April 2015 and by that time he had spent 14 years in confinement.
Motswagole found that “There are pertinent issues that may need exploration in an appropriate case such as the instant case. How do we reconcile the fact that someone who is not found guilty is nevertheless to be incarcerated at the “pleasure of the President as per Section 160 (3) of CAP. 08:03 in the light of the principle of presumption of innocence enshrined in Section 10 of the Constitution?”
He said “What makes the case at hand difficult and troubling too judicial conscience, borrowed when one took the of office, is that accused person dealt with in terms of Section 160 of CAP .08:02 would have been found fit to stand trial to section 159 of CAP. 08:02 and the finding of guilty of the act but insane in section 160 (1) of CAP.08:02 which deals not with the present but the past.”
In most cases such person would have been certified to be sane in terms of section 162, the judge said.
“The point I am attempting to make is that the person may have been certified sane by medical authorities and found to be fit and proper person to undergo a trial by the trial court and at the end of it all, upon reaching the finding referred to which really addresses the past, the same court direct that he be held in custody as a “criminal lunatic…,”said the judge.
According to Motshwagole, “That to me sounds like a contradiction in terms and it becomes worse when the very sane person is then closed behind closed bars indefinitely at the “pleasure of the President, “an expression that evokes fears of arbitrariness and irrationality.”
He said section 167 that provides that a person confined in a place of safe custody or her spouse or relative or friend or the Registrar may request the President to cause an inquiry to be held into the mental condition of the subject and the necessity for the continuation of the confinement.
“It seems to me that once Section 167 is invoked the President has no choice but to cause an inquiry to be conducted. In other words, he cannot just respond in the negative on the basis that the person is detained at his pleasure as otherwise he terms of section 160 (3) would seem to suggest,” said the judge.
Motswagole said Section 167(4) empowers the President to consider the recommendation of the judge presiding over the inquiry and to make an appropriate order attaching conditions as he may consider appropriate.
“The that the President “may make such order…as he thinks fit, “does not mean he has unfettered power. The power given can only be so exercised for the intended purposes. Such purpose is for the care and medical treatment of the person confined or for public safety. This is the reason section 167 (1) of CAP: 08:02 requires the assessment of the subject’s mental condition and the desirability to continue or to end the confinement,” said Motswagole.
He said these are the issues to which the President ought to apply his mind in the exercise of the confined power.
“The President is obliged to consider both the report of the Director of Health Services and the Medical Certificate. For the same reasons that the Director of Health Services could not ignore the Medical Certification, the President also cannot ignore the report and the medical certification,” said Motswagole.
He said the President in considering the report and the medical certificate for the purpose for the deprivation of personal liberty, namely the care and treatment of the subject person or the protection of the public, all of which are objectively ascertainable.
“It must be objectively established either that the subject person still has a mental health problem and therefore in need of care and treatment or that because of his or her mental health problem he or she constitutes a threat to public safety,” said Motswagole.
He said the real problems begin when a person who is not found to be insane or suspected of being insane is incarcerated for any other reason than for his care and treatment or the protection the public as envisaged by Section 5(1) (h) of the Constitution.
Motswagole said since it was medically ascertained that he was no longer mentally challenges and the Medical Health Board recommended that he ought to be released, the President, given the constitutional prescriptions, ought to have obliged or at the worst caused an inquiry to be conducted.
“The constitutional breach was heightened by the fact the subject person was kept in confinement from November 2004 until April 2009 notwithstanding medical findings of sanity and recommendation for release,” he said.
Motswagole said “I’m satisfied that the treatment of Batshani by the State agents and the President in particular was in accordance with section 5(1) (h) of the Constitution once it was communicated to him that Batshani was no longer mentally challenged. In the circumstances, any subsequent detention of the Plaintiff was unlawful and in breach of his constitutional rights.”
Motswagole found that Batshani may have been confined not because he was found to be in sane or suspected to be insane but because he was found guilty, not of a crime but of an act that is an element of a crime.
“To put it bluntly, he was found not guilty of the offence charged but was incarcerated as a “criminal” lunatic and this is so even though section 11 declares him not criminally liable,” said Motswagole.
“It cannot be denied that he has suffered damages but that is a matter to be tried to determine the quantum of such damages. However, I think it will be in the interest of justice and for the public good that the full bench of the Court of Appeal be afforced the opportunity to provided guidance in the light of what I stated above,” said the judge.
He ordered that the President was obliged to release Batshani from confinement once he received a determination of the Mental Health Board per the letter dated 6 January 2006 to the effect that plaintiff was no longer mentally incapacitated
Motswagole also ordered that the continued confinement of Batshani after the Mental Health Board had certified that he was no longer suffering a mental disorder constituted an infringement of his right to personal liberty and freedom of movement.
The judge also found that the continued confinement of Batshani in a prison meant for criminals and not a mental hospital constituted inhuman and degrading punishment. Batshani is presented by Paul Muzimo of Paul and Partners law firm is also demanding more than P5 million as payment of damages. The judge said the High Court would deliver a ruling on the quantum after the Court of Appeal had given direction on some of the declaratory orders sought by Batshani.
Motswagole said given the fact the matter touches on fundamental human rights and freedoms and in the light of the decisions from democratic countries including Europe, Canada and the Caribbean countries, whose constitutions share the same historical heritage as ours, an authoritative statement is required from the highest court in the land.
Motswagole stated that 15 of the Court of Appeal permits a judge of the High Court to reserve any question of law for determination by the Court of Appeal.
Therefore he wants the Court of Appeal to determine whether or not the provisions of section 160 make a reasonable provision for differentiation between on the one hand, the persons who were instance such as not to appreciate the nature of their action or omission at the time of the occurrence of the unlawful act or omission but are otherwise no longer insane at time of delivery of the special verdict of guilty but insane and or the other hand the persons who were insane at the material time of the occurrence of an unlawful act or omission and continue to be so or at the minimum are reasonably suspected to be so at the time of delivery of the specially verdict.
Motswagole also wants the Court of Appeal to determine if whether or not a trial court ought to conduct a specially inquiry to ascertain the mental condition of the person subject to a special verdict before proceedings in terms of section 160.
The Court of Appeal was also asked to determine whether or not the trial court is obliged to advise the President that the person subject to the special verdict of guilty but insane is not guilty of any crime and is consequently entitled to be presumed innocent with the meaning of the provisions of section 10 (2) (a) of the Constitution.
Editor’s note: The “mad man” supposition is not meant to play down the severity of the matter at heart or ridicule the protagonist but to highlight the insensitivities of both past presidents over the issue.