The recent death of Human Rights Advocate George Bizos of South Africa reminded me of the many Botswana justices and lawyers he interacted with during their days when the seat of the Botswana High Court and Court of Appeal was in Lobatse. Putting his death story in the context of Botswana, the conclusion shows that he was not a stranger in this country. George Bizos was the lead council in the Unity Dow citizenship case and the Clement Gofhamodimo murder case. His opponent in the Gofhamodimo trial was the devastating Samuel Afful. Following those high profile cases, George Bizos became a member of the Botswana Court of Appeal where he partnered with the likes of Issy Maisels, Sidney Kentridge, Aginola Aguda, A.N.E. Amissah and Leo Barons on the Bench. I knew those men very well. I used to cover their cases during my days as crime reporter. I admired them all. In this article, I seek to recall some of the sensational cases that those justices and senior counsels handled as well as what transpired out there. Some of their actions read more like Hollywood movie.
To begin with, it is necessary to remind Batswana who Samuel Afful is or was and his whereabouts. Samuel Afful was a Ghanaian lawyer who came to Botswana in the eighties to become the assistant attorney general. Google does not seem to know that enterprising lawyer. It only knows the other Samuel Afful who is a Ghanaian national soccer star player. To the best of my knowledge, he was the most powerful and the most feared prosecutor this country ever had. Several opposing lawyers as well as the accused persons would chose to avoid him if it were possible. Similarly, he was the most admired by journalists as well as the general public. He was the type of prosecutor who always kept the courts alive all the time by always speaking loudly and displaying intimidating postures. He was forceful and charismatic. When his first contract expired, it was extended by popular demand. It was in Parliament one day during the debate on the estimates of the Attorney Generals’ Chambers when several ruling and opposition MPs echoed the sentiments that this country “needs the second Samuel Afful to partner with the present Samuel Afful” with a view to sending a strong message to the wrong doers.
Samuel Afful prosecuted Steven Barnet at the High Court in the eighties. Barnet was a South African spy sent into the country to assassinate a fellow South African called Ronnie Watson who was an anti-apartheid activist. The South African security forces knew that Watson would be flying out to Gaborone. They sent Barnet to Gaborone ahead of Watson’s departure. He knew that Watson had been booked at the President Hotel. At about midnight on the day Watson arrived in Gaborone, Barnet, armed with an automatic pistol, knocked at Watson’s room masquerading as the hotel’s night duty manager. Watson opened the door for him. Inside the room, Barnet produced the pistol and extracted information from Watson on ANC activities in Gaborone at gun-point. Just when he was about to pull the trigger at close range, Watson dived on him like rugby player and overpowered him. The trial opened in Lobatse with Afful prosecuting. When the state rested its case, Barnet elected to give evidence for his defense. By so doing, he had invited more troubles for himself. He could not withstand Afful’s cross-examination style. It is often held that in cross-examination it is as important to know what not to ask as to know what to ask, and all the great cross-examiners have been models in this respect. Samuel Afful was in that category. When he started cross-examining Barnet, Afful appeared as if he was going to be friendly with him by promising the accused that “I will call you Steve in order to promote understanding between you and me”. From there it was fire- works as the state prosecutor caused havoc on the defense’s case. Barnet was so confused that he ended up agreeing almost with everything that Afful put to him. He was convicted and given custodial sentence. The apartheid regime had sent Advocate Els to defend him.
Samuel Afful was still the prosecutor when Theodore Hermanson and Basson, the two South African commandoes who were involved in the Kgale shooting went on trial on a charge of attempted murder. And another under the National Security Act. Advocate Els was still the defense counsel with another advocate. The case had been moved from Gaborone to Francistown for security reasons. Samuel Afful was in top form when he presented the state case in court. The accused elected not to give evidence or call witnesses for their defense. During lunch time at Marang Motel, I asked Advocate Els why they elected not to give evidence. This is what he said to me, “not with Samuel Afful prosecuting. He could confuse “my clients and they could end up agreeing with him on everything”, adding that, “I saw him in Lobatse when he prosecuted Steven Barnet”. This confirms my assertion that some defense lawyers did not enjoy handling cases where Samuel Afful was on the opposite side. The only time when I saw Samuel Afful shrinking was when he was appearing before a full Bench of Court of Appeal in a constitutional matter in the matter between Petrus and another versus the state. The issue involved installment whipping also known as corporal punishment by installment. Five justices of the Court of Appeal were on the Bench. Sidney Kentridge who featured prominently in the Steve Biko inquest, spent much time lecturing Afful on constitutional law saying installment whipping was inhuman, degrading and uncivilized. Through Sidney Kentridge’s lecture, I got to know that the European Foundation, the United Nations Charter and the Jamaican Constitution were the foundations of the Botswana Constitution and “therefore the Botswana Constitution must conform to their standard of civilization”.
Justice Issy Meisels was another character in the legal profession. He was the President of the Botswana Court of Appeal. He had the judicial mind and manner, an excellent knowledge of the practice, soft and patient. At the same time he could be ruthless. I still recall the rough words he uttered in the Churchill Letsholo appeal case in the eighties. The appellant had been sentenced to ten years for the murder of a female nurse whose surname was Ontumetse at Tawana in Gaborone. After taking his seat, Justice Meisels ordered the appellant to stand up and started tongue-lashing him. He said he had read the record of the trial court as well as the appellants’ grounds of appeal explaining that “as I was reading, I got angry and I am still angry with you”. He said, “I don’t know why you are before me today because you should be dead by now, having been hanged by your neck. The victim was a defenseless young woman who died as a result of several stab wounds you inflicted on her. It is possible that some of the stab wounds on her were inflicted when she was already dead. You too should be dead by now. I don’t know why you are still alive”. Justice Meisels continued, “I don’t know why the trial court imposed a custodial sentence on you instead of death sentence”.
Justice Meisels continued with his admonition of the appellant in the manner that sent shockwaves to parents and relatives of the appellant who were in the public gallery. He would keep quiet for a while but making eye contact with the appellant. From there he would continue throwing harsh words directed at the appellant. The hearing was in the morning session. Meisels then looked at the wall watch and said, “I am just about to break for lunch. During my lunch time break, I will decide your fate. Your life is now in my hands. However, Meisels promised the appallent that although he was angry, he would ensure that whatever decision he reached, was not arrived at because of anger. The court then adjourned for lunch break. When it resumed in the afternoon, he asked the appallent if he still remembered what he had said to him in the morning. The appallent answered in the affirmative. Meisels started going zigzag again reminding the appellant the sour words he had said to him earlier in the morning. He said, “as I told you earlier, I have decided your fate and I did so uninfluenced by anger and this is final”. Everybody listening was of the view that it would have been better if the appellant had not appealed thinking that he was then going to hang. With that suspense, Justice Meisels, uttered his last words, “I have decided not to interfere with the sentence of the trial court” and adjourned the court. That was contrary to everybody’s expectation. Relatives who were in court missed the judge’s last words. The dramatic fashion in which prison vehicles whisked the appellant away from court premises made them think that he was being rushed for an appointment with the hangman. They were overwhelmed by joy a few minutes later when told that in fact the outcome was that he should go to prison and serve the remainder of the ten year sentence.
Akinola Aguda was a Nigerian who was very assertive. He rarely wore smiles while in court. He started as Chief Justice of Botswana and later became the President of the Court of Appeal. He was the one who described Kgosi Seepapitso as “incorrigible troublemaker”. I covered him in the Marriet Bosch appeal case. The appellant had roped in the Queen’s Counsel known as Dasilva from the United Kingdom to argue her appeal. Dasilva had two grounds for appeal. These were that the trial judge shifted the burden of proof and also that the defense had no prior knowledge that a certain witness, Henni Kotzee had been granted indemnity from prosecution so that he agreed to be a prosecution witness. All the grounds of appeal failed. Aguda concluded that the shifting of the burden of proof by the trial judge did not go to the root of the trial and that the defense’s argument that they had not been made aware well before the trial started that Henni Kotzee had been granted indemnity was an attempt to mislead the court. He therefore confirmed the death sentence imposed by the trial court.
