A legal challenge brought before Gaborone High Court Judge Justice David Newman this week could deal a blow to the government’s legal aid project, The Telegraph has learnt.?Documents before court show that lawyers for one Shadrack Gaborekwe raised objection to appearance of Legal Aid Botswana, a government agency piloting the project, which could effectively put a temporary stop on the piloting of the project. Gaborekwe, through his lawyers, is challenging the legality of Legal Aid Botswana’s mandate to represent individuals before courts.?The case arises from an earlier application brought by Teddy Gabarekwe, who is represented by Kagiso Marumo from Legal Aid Botswana against Shadrack Gaborekwe. ┬á
Phemelo Rankoro of Makuyana Legal Practice represents the latter in the present case before court.?Rankoro, in his papers filed with court, states that Legal Aid Botswana is a project and no law has actually been enacted to give it authority to represent private individuals before court. He argues the Attorney General is the legal advisor to the government and therefore cannot represent private individuals.?“The plaintiff is not government or a department of government or a representative of government. Or an employee of government,” said Rankoro.?He added that the Constitution gives the Attorney General specific mandate of representing the government.
The lawyer contends that if Legal Aid Botswana says they are under the Attorney General Chambers, then it amounts to a breach of the Constitution to represent private individuals.?In replying papers, Marumo concedes that Legal Aid Botswana functions within the auspices of the Attorney General’s chambers. She said admitted attorneys for Legal Aid Botswana are instructed to carry the mandate of the Attorney General.?“The Legal Aid Botswana is not a private practitioner; it has no fidelity fund or trust fund,” said Marumo. ?She said being employees of the government and being legal practitioners, they carry out duties for Legal Aid Botswana on instruction from the Attorney General; therefore, are exempted from applying for practising certificate. ?The case has been postponed to give the Attorney General an opportunity to present her case to the Court.
Meanwhile, speaking at opening of the legal year on February 5, this year, Attorney General, Dr Athaliah Molokomme, revealed that by the end of December 2012, 1 700 applicants for legal aid had been received and 652 of these were dealt with by the four non-governmental organization with which Legal Aid Botswana has concluded cooperation agreements.
Molokomme revealed that most of the remaining 773 legal aid applicants were assisted by legal practitioners in private practice.
She, therefore, commended the Law Society of Botswana (LSB) for its role in distributing pro bono legal aid instructions to those legal practitioners who have come forward to perform their pro bono obligations through Legal Aid Botswana.
She also commended the legal aid practitioners concerned for their willingness to serve the indigent and further urged other legal aid practitioners who have not yet come forward to do so and to make 25 of their compulsory 40 hours pro bono service per year available to the noble initiative.┬á
Molokomme also revealed that the legal aid bill draft will be presented to Parliament sometimes this year.
She added that budgetary provisions for the next financial year and under NDP 10 had been made on the understanding that the much needed service would continue.
Molokomme said the bill followed the commencement of a pilot legal aid project in Gaborone and Francistown Administration of Justice offices in September 2011 and the project continued to receive good progress.