Thousands of poor Batswana are believed to be languishing in prison for crimes they did not commit ÔÇô Sunday Standard can reveal.
Facts and figures reveal that Batswana trialed in customary courts because they do not have money for legal representation are at risk of being incarcerated for crimes they did not commit. Some are convicted and sentenced for crimes which do not exist in the country’s Penal Code.
Figures pieced together, from the Customary Courts Commissioner’s office and Department of Prisons annual reports, reveal that customary courts are recording up to 100 percent conviction rates for thousands of cases decided over a period of 12 months and account for two thirds of the population in Botswana prisons.
The 100 percent conviction rate in customary courts compares badly with the conviction rate in magistrates courts, which can be as low as 60 percent.
For example, Kweneng customary courts decided 2879 cases over a 12 month period ending December 1998 and in all the cases no one was acquitted. Customary courts in Ngwaketse decided 1401 cases over 12 months for the same period, and like Kweneng, they recorded 100 percent conviction.
The same situation pertains in the North East District where out of 476 cases decided over a period of 12 months, no one was acquitted. In Selibe Phikwe, the Customary Court decided 906 cases recording zero acquittal; in Borolong, out of 321 cases decided over the 12 month period there was also no acquittal.
In some cases, accused persons are being convicted for crimes that do not exist in the Botswana Penal Code. In his research paper ‘Fair trial and Customary Courts in Botswana’, attorney, Duma Boko, cites the case of Bimbo v. State. Bimbo was convicted and slapped with a fine for adultery by a customary court. He ended up appealing to the High Court, with his lawyer 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.
In most cases, however, those who are convicted go straight to jail and do not appeal the sentence, apparently because they do not have money for legal representation. For example, in Kweneng, Ngwaketse, Selibe Phikwe and Borolong, where the Customary Courts recorded 100 percent convictions, no appeals were recorded over the period.
Despite the figures suggesting injustice in customary courts, government will not accede to calls by human rights organisations and lawyers for legal representation in customary courts.
A government paper, No3 of 1998 on the Report of the Presidential Commission on the judiciary, stated that “This recommendation is not accepted 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.”
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 the 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.”