It would not be advisable to amend laws so that cattle thieves are tried before the kgotla as this would infringe upon the fundamental right to legal representation which right is recognized by the constitution of the Republic of Botswana.
Presidential Affairs Minister, Daniel Kwelagobe, on Friday told parliament that Section 32 of the Customary Courts Act (Cap 04:05) does not allow advocates or attorneys to appear before a customary court.
The section reads, “Notwithstanding anything in any other law, no advocate or attorney shall have a right of audience in any customary court or in any magistrate’s court in any criminal proceedings or in any civil proceedings which fall to be determined by customary law, taken under the provisions of section 37, 39 and 42 except with the special permission of such court.”
The public has lately been clamouring for a constitutional amendment with regard to the provision arguing that, among other things, the magistrates courts tend to favour the accused persons.
“The magistrates take a long time to prosecute resulting in the disappearance of exhibits. Further, the attorneys at the magistrates’ courts have a slippery tongue and connive with the prosecutors to set culprits free. At the customary court, the cases are heard immediately and expeditiously with almost 100 percentage conviction,” the public argued.
On the other hand, those against the conviction argue that “the accused persons should be afforded legal representation of their own choice and failure to do so is a violation of their fundamental rights which, among other things, is complete legal representation.”
These seem to be burning issues amongst Batswana farmers as at every kgotla addressed by government officials the public advance the grievance but with a similar response.
The previous Ntlo ya Dikgosi featured the same motion by Bangwato regent, Sediegeng Kgamane, with the same response from minister Kwelagobe.
“The provision, therefore, means that the accused persons charged before customary courts do not enjoy the fundamental right of legal representation,” said Kwelagobe. “However, any party in any proceedings before customary court may demand that his/her case be transferred to some other court.”
For instance, section 37(1) states that “where in any proceeding before a customary court any party thereof demands that the case be transferred to some other court, the proceedings shall be suspended forthwith and the matter reported to the customary court of appeal. The customary court of appeal may then transfer the case for hearing and determination by some other customary court or magistrate’s court.
Kwelagobe further informed parliament that the traffic branch of the Botswana police service, which is tasked with the function of road traffic policing, has in place contingency plans for deployment of police officers at malfunctioning traffic lights.
“To achieve this, the Botswana police service has an agreement with the Botswana Power Corporation to be instantly notified upon any intentions to cut power that may result in some traffic lights not working. This is intended to allow for the timely mobilization and deployment of all available traffic and general duty officers so as to control traffic road intersections.”
Of late the country, or to be more precise, the SADC region, has been grappling with power outages that saw traffic lights sporadically interrupted and causing much inconvenience and fatal accidents.
“It should be noted that due to shortage of human resources and the sporadic nature of the situation, it is not always possible to cover all the traffic lights at the same time,” said Kwelagobe.
Kwelagobe was answering questions from Moshupa MP Mooka and specially elected MP, Botsalo Ntuane.