“The Judge Advocate General’s Corps (JAG Corps) is the branch or the speciality of a military concerned with military justice and military law. Officers serving in a JAG Corps are typically called judge advocates. Only the chief attorney within each branch is referred to as the Judge Advocate General: however, individual JAG Corps officers are colloquially known as JAGs.” Wikipedia
The issue regarding the establishment of the office of Judge Advocate General has certainly raised a lot of dust in the country’s political arena. The question at hand is; what is the real issue behind this matter? There is a lot of ignorance at play in the public debates and even those taking place in parliament. The definition and the role of the office has been explicitly made clear in the open statement here and that should help us understand even better as we go forward with this debate.
First of all I think this matter has been far too politicised and that has terribly clouded the real issues that should be at the centre of the debate. We all know that what has now come to the centre of the debate has now become the identity of the person who is expected to occupy that position. The ugly part of this debate is that it has become so partisan. Actually this has become the most partisan issue regarding the military in the history of this country.
Let us take a look at the history of military law in Botswana before we entangle ourselves with issues we are not well versed with. The establishment of the BDF came in 1977 as a result of an Act of Parliament. That was the basic law that ignited the birth of our military. The British were at play in helping draft the Act. In actual fact they simply did cut and paste and this is why some of the laws found in the Act have remained irrelevant for our circumstances.
The first attorney that BDF had early in the years was Brigadier Ndelu Seretse and he was followed by Colonel Sailor Mooketsi. Both of these gentlemen were coming from a group of first officer cadets at BDF and they were trained in Zambia. Serestse did his LLB at the University of Botswana and later completed at Edinburgh as it was the order of things in those years.
Part of Seretse’s training took him to train with the US Army as a JAG in 1992. This course was offered and paid for by the US Department of Defence through a programme known as IMET (International Military Education and Training). However, BDF was not ready at the time to establish a fully operational office of the JAG. The commander at the time did not want this office to be established because it would take away a lot of his powers as he enjoyed sweeping authority over everything military. The other factor was that the defence force was too small and could not generate enough work for this office if established.
It was in the commander’s comfort zone to deal with issues of military law within the scope of the Summary Disciplinary proceedings, an arrangement that is skewed to benefit the command and not the troops. BDF began to experience problems with its legal system when soldiers began to realise that that they could opt for a court martial as opposed to summary disciplinary hearings that were often bangled up and came to be known to represent injustices to the troops.
When a growing number of soldiers were opting for the route of the Court Martial, the commander at the time rushed to parliament to change the law and prevent Non-Commissioned Officers from having any options other than to be dealt with summarily by their commanding officers. Most of these commanding officers were just as good as ward headmen in our villages and the verdict always had to please the commander. Those who acted independently in the interest of justice were side-lined for promotion.
It is important to clear the mist on this new appointment that it does not necessarily have to be held by someone who is a military general. It is just as the Attorney General is not a general. The current Director General at DCEC was serving as Inspector General at BDF while he was still at the rank of colonel.
There are unfounded fears that bringing a civilian JAG will make him a uniformed soldier and that falsehood has been perpetuated by those seeking to serve their own interests. That is not true! In any case, the BDF has a Chaplain General who is a civilian in uniform and has been taught how to salute and he has certainly become good at it.
Some during the debates in parliament have suggested that the post of JAG be reserved for the past crop of lawyers that served at BDF. This sounds ideal but it comes with a host of problems. These are the very officers who have been against justice for decades and cannot in anyway be converted to become part of the judicial solution to the military. The legal problems that BDF has were created by themselves. Worse of all, these general officers have never won a single case at court and that rules them out as novices.
The Legal Department at BDF as it is known has been manipulated by senior officers who successfully created a leadership vacuum in order that their relevance perpetuate into infinity. The choice of an outsider will help to change the culture of injustice and impunity.
The reader must understand that the BDF Act literally gives the commander the power to sentence a soldier to death through the processes of the Court Martial. The JAG will help in every way to safeguard that justice prevails in the barracks. Soldiers have suffered for far too long and they need their retribution from injustice now and not later.