There is no line between justice and injustice in Botswana’s Customary Courts, and the poor are having the worst of it.
The young lady sitting on the other side of the table sported a tag that said “Court Clerk.” I had been warned that she was a mean woman, given to prickishness, but when we finally shook hands and exchanged “hellos”, she was courteous to a fault.
For sometime, I found myself pacing the tiled floor and wondering how to broach what was likely to be an unwelcome subject. We spoke about the unpredictable weather and the huge workload in customary courts until the moment could not be deferred any further.
No sooner had I asked about the court records than she pointed me to the next door- stenciled “ Deputy Court President”. I left with a promise of an interview once her bosses had cleared me. After about 15 minutes of wringing my hands before the Gaborone West Customary Court President and his deputy I was back on the other side of the Court Clerk’s table.
Chin retracted and brows permanently puckered in concentration, she was reeling out names and dates of cases recorded in the court register. She, however, could not remember the last time anyone was acquitted by the Gaborone West Customary Court.
“It must be” she fumbled as she flipped through pages of the black hard cover notebook that answers for a case register. “I think it was last month,” she blurted out.
Not surprising. For the whole of August, the Gaborone West Customary Court has decided 28 criminal cases and recorded only one acquittal. With a conviction rate of more than 99 percent, this record is likely to raise a few eye-brows in judicial circles, considering that magistrate courts are recording conviction rates which are as low as 60 percent, right? Wrong.
In fact, other customary courts are turning in higher conviction rates. In the Kweneng District, out of 2879 cases decided by all customary courts in the area, over a period of 12 months in 1998, there was not even a single acquittal. And this is not an isolated incident. Customary Courts in the Ngwaketse District decided 1401 cases over 12 months during the same period and recorded a 100 percent conviction rate. Customary courts in the North East District decided 476 cases for the whole year and no one was acquitted. The Selibe Phikwe record shows 906 under the “decided cases” column and 0 under the column that says “acquitted.” Customary Courts in the Borolong area decided 321 cases, recorded zero acquittals and 321 convictions.
Even such figures hardly ever make bar and cocktail party conversation pieces. Most Batswana have more harrowing stories to tell about the injustice of customary courts.
A colleague, Mesh Moeti, recently related the story of a presiding officer who sentenced a villager to death for stealing a chicken. The presiding officer, who was a hot tempered man and his court sessions a hot tempered affair, had run out of patience with the recidivist chicken thief and decided enough was enough. The chicken thief was, however, never executed. The case represents an extreme example of the customary courts’ high handedness.
More commonplace cases involve people who are tried and convicted for crimes which do not exist in the country’s Penal Code. Human rights lawyer, Duma Boko, in his research paper “Fair trial and the Customary Courts in Botswana: Questions on legal representation” cites the Bimbo vs. State case in which Bimbo was convicted of adultery by a customary court and slapped with a heavy fine although adultery is not a criminal offence. He subsequently appealed to the High Court, arguing that adultery was not an offence under the Penal Code or any other penal statute. The High Court quashed the conviction and set aside the sentence.
All in all, the collective response, from Batswana who have had a brush with customary courts can be summarized in one sentence – customary courts remain a Wild wild west kind of place. The boundary between justice and injustice is unmarked and every presiding officer may locate it differently.
In fact, Boko’s research paper uses facts and figures to illustrate that customary court presidents, with all their fancy titles and props, are actually rather poorly prepared for the court cases they preside over. And it is the poor and illiterate who are having the worst of it.
All suspects tried and sentenced in customary courts have no legal representation. Boko observes that: “It may very well be that a lot of them were indigent and could not afford legal representation even if they were given an opportunity to seek it.
But it is not unlikely that a lot of those persons are ignorant of what legal representation might do for them. The Customary Courts Act imposes no obligation on the presiding officers to so much as inform the defendants of the right to legal representation. Lawyers are denied audience in the customary courts.”
Recently, however, there have been suggestions that legal representation be permitted before these courts. The government rejected the suggestions. The government’s position is stated in the Government Paper No3 of 1988 on the Report of the Presidential Commission on the judiciary of 1998 as follows, “This recommendation is not adopted because the real problem in the Customary Courts is that it is not proper to have professional lawyers arguing cases presided over by lay persons.” The question of legal representation before the customary courts was thus shelved. Boko points out that “the government’s position captures an interesting reality. Most, if not all, the Presiding Officers in customary courts have not had high school education. A large number are, in fact, barely literate. The government finds it improper that lawyers should appear before these lay persons. Yet a much more serious reality is ignored. These “lay persons” sit and determine the guilt or innocence of thousands of equally illiterate persons. The presiding officers are expected to apply provisions of the Penal Code and other penal statutes. None of these statutes are written in vernacular language, Setswana, which is an official language in addition to English. The presiding officers can sentence convicted persons to custodial sentences of over five years. The only feature of the customary courts that endear them to government is that they dispose of their cases quickly and swiftly.
What happened next, however, suggests that the adventure did not fully grasp how easily things could go wrong, and a look beneath the surface reveals a more complex story.
The crisis in the judicial system is having a domino effect: Prisons Department’s annual reports reveal that two thirds of inmates are sent there by Customary Court. This has spawned overcrowding in Botswana prisons. A report by the US State Department released last month revealed that, as of early September last year, the Botswana prisons system, which has a carrying capacity of 3,910, held 6,259 prisoners. Overcrowding was worse in men’s prisons and constituted a serious health threat due to the high incidence of HIV/AIDS and Tuberculosis. Due to overcrowding, small children usually shared prison cells with convicted adults and retrial detainees.
The prison overcrowding has also frustrated the department’s rehabilitation programme, resulting in a high rate of recidivism. Statistics from the Prisons Department reveal that up to a third of the inmates in local prisons are repeat offenders.
Customary Courts have existed in Botswana for as long as the country’s various ethnic groups have existed. According to Boko “their history goes back to the period before the declaration of protectorate status over what was then Bechuanaland.”
Consistent with their approach elsewhere, the British made use of the traditional dispute resolution structures that were in place. Part of the reason, in the case of Bechuanaland, was that the British found the structures to be closely similar and highly sophisticated judicial systems, the higher levels of which could be incorporated in the official structure almost without modification. Thus the foundation was firmly laid for the duality that characterizes the Botswana legal system. There is, on one hand, received law and, on the other, customary law. As a feature of this dualism there exist regular courts as well as customary courts.”
Observes Boko: “The right to legal representation as well as the requirement to be informed of this right does not seem to exist and apply to customary courts. This is shocking. For literate, educated and/or enlightened defendants, solace is always found in section 36 which enables them, at any stage of the proceedings before a customary court, provided it is before judgment, to demand that their case be transferred to another court. The transfer is invariably to a Magistrate Court where the right to legal representation does apply. For the illiterate, uneducated, and unenlightened defendants, the right to legal representation simply does not exist.”