A new United Nations (UN) report on Botswana has expressed reservations about what it calls extensive criminal jurisdiction and sentencing powers of Dikgosi. The report raises concerns about powers of Dikgosi to impose prison sentences of up to 15 years.
The preliminary report by the UN Working Group on Arbitrary Detention was released on Friday following an official two week visit to Botswana from July 4-15, 2022.
The report says while the ability of the customary courts to swiftly deliver community-based resolution and reconciliation is commendable, the Working Group has serious reservations as to their extensive criminal jurisdiction and sentencing powers.
“The Group recalls that equality of arms is a fundamental requirement of the right to a fair trial, which presupposes the right to defend oneself in person or through a lawyer of one’s own choosing. While individuals are not prevented from having legal representation, if they choose to have it, their case is required to go through the much slower route of magistrate courts.”
The Group observed that while only about 15 percent of custodial sentences are imposed by Dikgosi through customary courts, among those are individuals having received extensive imprisonment sentences of 5 to 15 years.
The Working Group says it causes serious concern that such severe punishments are imposed by dikgosi who are not trained legal professionals, following proceedings in which the defendants have no legal representation.
The report says there appears to be a prima facia breach of article 14 of the Covenant. Article 14 of the International Covenant on Civil and Political Rights states, in part, that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
Consequently, the report says the Botswana Government should urgently review the criminal jurisdiction of customary courts, especially in relation to the complexity of the cases they may hear and the severity of punishment they can impose.
Botswana’s customary courts apply the Penal Code and other relevant law. Except for the most serious crimes, they may hear a number of criminal matters. The Customary Courts (Procedure) (Amendment) Rules of 2016 sets out the procedure they follow and a Court Warrant sets the limits of sentences that each Dikgosi may impose. Dikgosi may impose fines of up to 10 000 pula, corporal punishment (up to 8 strokes), and imprisonment for up to 15 years.
“The Working Group was able to observe the proceedings of a customary court. While the proceedings resemble those of magistrate courts, customary court hearings take place in the traditional kgotla and the accused appear without a lawyer. If the accused wishes to have legal representation, the matter must be referred to the magistrate court.”
The report also notes that Bogosi is a hereditary title and, as such, a kgosi is not a professional lawyer or judge although some training is provided. The Working Group met with officials of the Ministry of Foreign Affairs, Ministry for State President, Ministry of Local Government and Rural Development, Ministry of Health, Ministry of Defence and Security, Ministry of Justice, Attorney General’s Chambers, Office of the Ombudsman, Directorate of Intelligence and Security, Tlokweng Kgotla Customary Court, and Customary Court of Appeals for the Southern region.
“The observations presented today constitute the preliminary findings of the Working Group. They will serve as a basis for future deliberations between the members of the Working Group at its forthcoming sessions in Geneva. The Working Group will then submit its report to the UN Human Rights Council in September 2023,” the Group’s representatives Elina Steinerte (Latvia) and Mumba Malila (Zambia) told the media on Friday. They were accompanied by staff from the Office of the UN High Commissioner for Human Rights.