Botswana laws imposed upon the Government a responsibility to provide the public with an increased sense of security in the governance of their country by way of putting in place an effective system of independent and impartial courts that guarantee to all persons a fair and speedy trial.
In spite of this fact, a large number of people whose guilt or innocence have yet to be proved, remain incarcerated in the country’s jails.
Part of the problem is ascribed to serious shortage of citizen trained lawyers who can become magistrates and judges, as well as prosecuting officers and for all legal functions in the country.
As a result, the judiciary relies too heavily on many expatriate magistrates so that it can provide a decent level of services.
In this context, the Chief Justice of the country’s High Court, Julian Nganunu, expressed fear that there is however “a danger in relying too heavily on expatriate services,” adding that the judiciary has an enormous duty to protect the public, a function that cannot be left to foreigners.
Moreover, to the extent that there are still some loopholes in the criminal justice system, including the limitations in the jurisdiction of certain courts, which warrant fine-tuning of the systems, delivery remains a challenge yet to be surmounted.
For example, clarity in the relationship between the customary courts and the rest of the legal system shows to be wanting in terms of both the interpretations of law and competency as well as in limits in the latitude of jurisdiction.
To attest this, an instance is cited where some private attorneys, purporting to represent accused persons, would direct correspondence to customary courts where such people would be facing trial, demanding immediate transfer of such cases to the higher courts, only to disappear into thin air when they would be expected to defend them before those “appropriate” courts.
While responding to queries by traditional leaders that they are undermined, it has generally been held that citizens are entitled by the constitution to such; there is consensus that the laws are not water-tight to disallow abuse.
This emerged at the occasion of the opening of the Legal year on Tuesday, in Lobatse, approximately 100 kilometers south of the capital Gaborone.
According to Section 10 of the country’s constitution, if any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an impartial court established or recognized by law.
Nganunu pointed out that although the constitution refers only to criminal cases, the law requires the same values to apply with respect to all civil and other cases. He added that by creating an environment that guarantees to all persons ‘a fair and speedy trial’, the state will be able to meet the need of accused individuals and litigants to know the outcome of their trials within a reasonable time.
That way, both accused persons and litigants deserve the ‘comfort’ of being able to plan or advance their lives thereafter, without unnecessary anxiety normally resulting from waiting for long periods without trial.
To compound the problem, overcrowding has been identified as a matter of concern for some time now, “with potentially serious implications for the health of inmates and, ultimately, their rehabilitation”.
Combined with this are the prohibitive costs of engaging defense attorneys in cases that would help expedite the legal processes.
Acknowledging the problem, the country’s Attorney General, Dr Athaliah Molokomme, intimated that some of the inmates would perhaps, not be in prison in the first place, if the existing criminal system offered room for a wider choice of sentencing options, clear, sentencing policies and guidelines, that “we applied consistently”.
For this reason, the AG said that her office is currently working on some far reaching initiatives proposed by Botswana President Ian Khama, in the hope that they will relieve the criminal justice system of some of the challenges they are facing.
One initiative, for which a consultancy has just been completed, consists of the establishment of a national legal aid system for indigenous citizens.
“Resources permitting, we intend to pilot some of these models in selected areas of the country by April, 2009,” hinted Molokomme.
She added that the Chambers have also been tasked by Khama to identify alternative methods of punishing offenders other than sending them to prison. Apparently, the feasibility of the proposed approach seems to have found validation in the deliberations and outcomes of a recent regional workshop held in Botswana on related issues.
Although, Molokomme could not make specific mention of countries, she alluded that it was a “good opportunity to learn lessons from experience of other countries.”
On account of this, Molokomme said, “These are some of the policy issues we shall be pursuing in consultation with the judiciary and other agencies during this legal year.”