Address by Dr. Athaliah L. Molokomme, Attorney General of the Republic of Botswana, on the Occasion of the Ceremonial Opening of the Legal Year

source: Republic of Botswana (9/2/09): TAUTONA TIMES no 2 of 2009
The Weekly Electronic Press Circular of the Office of the President "Democracy, Development, Dignity and Discipline"

B2) 3/2/09: ADDRESS BY DR ATHALIAH L. MOLOKOMME, ATTORNEY GENERAL OF THE REPUBLIC OF BOTSWANA, ON THE OCCASION OF THE CEREMONIAL OPENING OF THE LEGAL YEAR, TUESDAY 3RD FEBRUARY 2009:

[Salutation]…Ladies and Gentlemen

1. The privilege of responding to the address of the Honourable Chief Justice is one that I do not take for granted, because beyond the ritual and festivities, the annual opening of the legal year marks a special event in the calendar of our courts. It gives us the opportunity to reflect, in open court, on our achievements and challenges during the past year, and to share strategies for the new legal year.

2. I respectfully agree Your Lordship, that this year's ceremony takes place against the backdrop of a mixed picture of exciting achievements and unprecedented challenges to our judicial system, our country and globally. On the positive side, today we celebrate the new legal year in the presence of His Excellency the President of the Republic, Lieutenant General Seretse Khama Ian Khama, who is attending this court session for the first time in that capacity.

3. It is indeed a testimony to the excellent health of our democracy that last year, on the 1st of April 2008, the Honourable Chief Justice administered the oath of office to His Excellency. To our peace loving nation that is accustomed to witnessing these events, this may appear to be a brief, simple, ceremony. However, it is one which carries a profound meaning under our constitution, and which the citizens of some countries cannot take for granted.

4. Allow me therefore to join your Lordship in thanking His Excellency for attending court this morning. His presence is a powerful symbol of the government's recognition and respect for the pivotal role of the courts in our constitutional order.

5. Since his assumption of office, His Excellency has shown a special interest in the judicial and legal system, and his vision is that it should deliver meaningful services to all, especially ordinary citizens. Among the initiatives he has identified to be addressed urgently by our Chambers is the establishment of a legal aid system for indigent citizens. To that end, a consultancy study proposing various options of a national legal aid system has recently been completed. Resources permitting, we intend to pilot some of these models in selected areas of the country by April 2009.

6. A second initiative which His Excellency has allocated to our Chambers is the identification, in appropriate cases, of alternative methods of punishing offenders other than sending them to prison. In this regard, we were fortunate to host a Commonwealth-sponsored regional workshop in Gaborone on this subject in June last year. The deliberations and outcomes of that forum provided us with a good opportunity to learn lessons from the experience of other countries.

7. As we are all aware, overcrowding in our prisons has been a matter of concern for some time now, with the attendant consequences for the health and rehabilitation of inmates. Statistics show that the authorised capacity of our prisons is 3,994, but the unlock figure yesterday morning was 5,320 inmates. Of these, 140 are High Court remands, 816 lower courts remands and 234 immigration related inmates. Needless to say at nearly 1000 the number of prisoners on remand is much too high. A view has been expressed that perhaps some of these inmates would not be in prison in the first place, if we had a more efficient criminal justice system, a wider choice of sentencing options, clear, sentencing policies and guidelines, that we applied consistently. These are some of the policy issues we shall be pursuing in consultation with the judiciary and other agencies during this legal year.

8. On this note, I wish to acknowledge His Excellency the President's remission of the sentences of certain prisoners on the occasion of the fiftieth anniversary of the Botswana Prison Service on May 10 2008. This was done in exercise of the President's powers under section 53 of the Constitution, to encourage good behaviour and discipline on the part of inmates.

9. These remissions are being effected, and are subject to strict conditions to ensure the security of the public. I am informed that so far, some 2,800 inmates have benefited from this programme. Of these, 719 have been released from custody; only 7 have violated their conditions, and are back in prison to serve the remainder of their sentences.

10. Allow me to now briefly address two burning issues which have invited much public comment, and to which the Honourable Chief Justice referred: stock theft and bail.

11. I respectfully agree with the Honourable Chief Justice that in view of our constitutional provisions, we cannot restrict the trial of stock theft cases to Customary Courts, as some members of the public are demanding. I do however wish to inform the Honourable Court that our Dikgosi and Customary Court officials are of the view that these constitutional protections are being used by some accused persons simply to avoid the jurisdiction of Customary Courts, and delay the disposal of the matter - and not necessarily with the intention of invoking their constitutional right to legal representation. They are particularly concerned about correspondence addressed to them by private attorneys purporting to represent accused persons. Such correspondence, they inform me, is couched in language they consider threatening and unpalatable, demanding adjournment of the matter forthwith, on the basis that the accused wishes his case transferred to a magistrate's court.

12. I am further informed that soon after writing the said letter, and perhaps obtaining bail for the accused, the attorney promptly disappears into thin air and the accused joins the long list of cases waiting to be heard, unrepresented, before a magistrate's court.

13. I appeal to members of the profession, in dealing with the customary courts, to show respect to our traditional leaders, no matter how strongly they may disagree with them on a point of law. For my part, I am assisting the Minister to find ways of proposing amendments to the law, and adopting measures to ensure consistency with the constitution on the one hand, while facilitating efficiency in the disposal of stock theft cases on the other.

14. I therefore welcome the Honourable Chief Justice's idea of establishing Magistrates courts specially equipped and trained to deal with stock theft cases. I am sure the public would be delighted at this development.

15. Another subject that has caused public concern and to which His Lordship referred is that of bail, where accused persons await trial or appeal outside prison. The Honourable Chief Justice has outlined the position of the law in this regard, and the challenges presented by lack of information in particular cases.

16. While I am aware that bail is a matter for judicial discretion, I respectfully submit that in some cases, especially where the accused is charged with a very serious offence, the courts could, instead of treating every bail application as urgent, allow more time for prosecutors to find information on the accused. This would minimize the risk that serious criminals could be unleashed on the society, as has happened in a few cases, where such people have proceeded to commit other offences, or harm witnesses and complainants.

18. We have also noted that there are divergent approaches and decisions on the matter and the interpretation of the law regarding bail, which could be perhaps be addressed by a practice directive from the Chief Justice, or a reference to the Court of Appeal.

19. As I wind up the part of my address dealing with criminal justice, I must acknowledge the many other challenges in this field that are caused by increased and more sophisticated criminality. The police are continuously revising their strategies for dealing with crime, and are succeeding in some areas. However, increases in crimes such as rape, home invasions and the emergence of new, complex offences such as money laundering and human trafficking, remain, potentially causing public insecurity and undermining our growing economy.

20. Concerns over safety and security are not limited to the public, but also cover the security of criminal justice personnel. The Director of Public Prosecutions has previously expressed concerns about security at the courts. There have been incidences where suspects and members of the public enter court rooms armed with offensive and dangerous weapons. This underlines the need to consider the provision of a minimum level of electronic and human security to protect prosecutors and court personnel.

21. As we rollout our programme to decentralize prosecutorial services to other parts of the country, the challenges of the shortage of Magistrates, to which the Chief Justice referred, have become evident. There are a number of stations that continue to be staffed by a single magistrate or none at all, with the result that justice is delayed.

22. Attrition of magistrates from the judiciary is a symptom of the larger problem of the shortage of experienced lawyers that characterizes both the public and private sector. This shortage results in the rapid mobility of young lawyers, who are constantly moving from the public to the private sector, between the government and parastatals, and between private law firms, sometimes setting up solo practices that struggle to find work. This means that our young attorneys do not spend sufficient time at the same place to gain valuable experience from their seniors, undermines specialization and compromises quality. It is in this regard that I join the Honourable Chief Justice's call for attorneys to be conscious of their duty to society, to enrich the legal system of the country and advance the ends of justice.

23. It is also my sincere hope that the introduction of a scarce skills allowance for government attorneys and judicial officers of up to 30% in 2008, will go some way towards addressing the attrition of lawyers from the public sector.

24. Clearly, the challenges to which I have referred affect different but related institutions in the justice system, and cannot be addressed by the Administration of Justice alone. They require a more coordinated approach on the part of all stakeholders in the justice system, and robust leadership at the policy level. This is where the role of a minister with portfolio responsibility for justice comes in.

25. On that note, I would like to specially recognize the efforts of the Honourable Minister for Defence Justice and Security, Mr D.N.
Seretse, who is attending this ceremony for the first time in that capacity. He has demonstrated a strong commitment to issues of justice through, among others, personally chairing the Criminal Justice Forum at policy level, and providing hands-on leadership to ensure coordination between justice agencies. I am convinced that if this is done with sensitivity, it should not compromise the independence of the various agencies, especially the judiciary.

HOUNOURABLE CHIEF JUSTICE

26. I am sure that the Honourable Minister has heeded Your Lordship's plea to save the infrastructural developments to which you referred from the chop of the axe occasioned by the global economic downturn. While I cannot offer any personal assurance, I hope I am allowed to confess that the last time I snooped at the Minister's Committee of Supply speech, the projects to which you referred were still in the list of current survivors.

27. However, as the Honourable Minister of Finance and Development Planning informed Parliament yesterday, this unprecedented global economic downturn is unfolding everyday, bringing with it much uncertainty, which makes it difficult to make definite commitments.

28. On a lighter note therefore, I must state that my earlier words of comfort were given in my capacity as a humble officer of the court, entirely without prejudice, and the rights of the Government are fully reserved.

29. Turning to the area of civil law, I must, as I did in my last address, commend Your Lordship on the reforms you have introduced to expedite the disposal of cases. Nearly a year into their implementation, I must agree that they are indeed beginning to bear fruit.

30. The kingpin of these reforms, the Judicial Case Management (JCM) system, has assisted us to formally close before the courts those cases that we had concluded, but for some reason, not made the courts aware of this. For despite high registration rates, some civil cases are settled out of court, something that I encourage in appropriate cases where the government is involved. Unless the parties communicate the position, the court would not know that such cases have been settled. The strength of the judicial case management system is in its identification of cases in the pipeline, and tracking those to conclusion, under strict directions from the judge. As a result of this system, at our Chambers, we have registered improved turnaround times in civil cases.

31. As expected, any newly introduced system meets teething challenges, such as its capacity to be cascaded to all levels of courts, inconsistent application by judicial officers, and potential double booking of attorneys. I am therefore pleased to learn from Your Lordship that these issues are being addressed through further training of judges on the JCM and its full extension to the Magistrates courts, who handle the bulk of the cases. I pledge the support of our Chambers in ensuring that the system is understood and fully implemented by government attorneys.

32. Another aspect of the judicial reforms which I especially welcomed in my last speech was the amendment of the High Court Rules, which was done with a view to eliminating provisions that delay, rather than expedite the disposal of cases. While this has also begun to bear fruit, I must bring your Lordship's attention to a development that has the potential to undermine justice, under the guise of speed and efficiency.

33. In my last speech, I appealed to the Honourable Court to discourage the practice where some attorneys bring matters on urgency and give the opposing party a few hours to appear in Court. Especially in litigation against the Government, I reported that it is not unusual to be served with papers in the morning and be expected to appear before Court in the afternoon. Such a practice is most unfair and does not give us enough time to obtain instructions from client ministries on the matter, respond to court documents and appear in court at short notice.

34. This has resulted in orders being granted, in the absence of the opposing party, that may be called interim, but have the effect of immediately restraining government from proceeding with multi million dollar development projects. In some cases, this is done without affording the Government a hearing, because of the short notice to which I referred. Such a practice denies the Government, as a litigant, protection of the established tenet of natural justice, audi alteram partem.

35. Honourable Chief Justice, I must hasten to add that this observation is humbly made with all due respect to the independence of the judiciary to decide cases impartially and to do so without fear or favour, in accordance only with the law. It is also made in the spirit of your Lordship's earlier statement that you accept genuine criticism designed to improve the judiciary's services or morality.

36. As we all know, the business of dispensing law and justice goes beyond courts and litigation; there are many other critical interventions that provide the supporting framework for our legal infrastructure. In our role as principal legal advisor to the Government, we are charged with the responsibility of drafting legislation and international and commercial agreements on behalf of Government ministries.

37. Legislation of major importance that was passed in 2008 include, among others, the Media Practitioners' Act and the Public Service Act. All in all a total of 42 Bills, 30 Acts and 114 Statutory Instruments, as well as 717 Government Notices were enacted or published during 2008.

38. I am pleased to confirm to your Lordship that the February Session of Parliament that commenced yesterday is indeed expected to debate the High Court Amendment Bill, which proposes to prescribe the total number of judges that may be appointed to the High Court bench. The Small Claims Court Bill to which you referred is also in the programme for this session. It proposes to establish small claims courts in magisterial districts, which should decongest magistrates' courts and speed up the delivery of justice.

39. The proposed amendments to the Court of Appeal Act that are meant to facilitate the reform of the court of appeal to which His Lordship referred have proved to be more complex than was first thought. I am however in a position to report that they are receiving serious consideration at the highest levels of the government, which recognizes the need to expedite this process.

40. Another Bill expected to be presented is the Financial Intelligence Bill which seeks to establish an Agency responsible for requesting, receiving analyzing and disseminating financial information so as to detect financial crime including money laundering and financing of terrorism. Finally, a comprehensive Children's Bill, which seeks to amend the current Children's Act and give better effect to Botswana's obligations under the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, is being brought before Parliament after many years of consultation.

41. In execution of our role as custodian of the statute book,
the 2008 Volume of the Botswana Statute Law has been submitted for printing. The Law Revision Order updating the Laws of Botswana up to 31 December 2007 was published on 15th July, 2008 as Statutory Instrument No. 60 of 2008.

42. The Consolidated Index of the Botswana Law Reports 1964-2006 has been published and is available at the Printing and Publishing Services Department. As promised in my last speech, the second volume of the 2007 Botswana Law Reports has been published. The third volume of the 2007 Botswana Law Reports is expected to be published by the end of this month whilst the first volume of the 2008 Botswana Law Reports is at an advanced stage of preparation.

43. I would like to thank the members of the Law Reporting Committee, who include some Honourable Judges of this court and the industrial court, and the University of Botswana, for their commitment and tireless efforts in the selection and pre- editing of judgments.

44. I am also pleased to report that we have taken the first steps in the identification of an appropriate law reform structure for the country, to which I referred in my address two years ago. A study is underway, which in the next few months will make concrete recommendations for an appropriate law reform agency, based on regional and international best practice.

45. Our International and Commercial Division has, as always, been assisting various Government Ministries and Departments with the negotiation and drafting of various commercial, bilateral and multilateral agreements. On the international side, Botswana's Universal Periodic Review Report, which is required every four years, was prepared and lodged at the United Nations in Geneva in 2008.

46. Such reports are important to ensure that Botswana occupies its deserved pride of place in the regional and global landscape, and that its position on critical issues is understood and respected as a sovereign state.

47. It is in that regard I have the pleasure of commending Ms. Sanji Monageng for yet another outstanding achievement, her appointment as a judge of the International Criminal Court. In addition to her impeccable credentials, the support of the Government of Botswana, the African Union and other countries were instrumental in her final election. I would therefore like to thank those countries that supported her candidature, some of whose representatives may be present in court today. It is especially pleasing for me personally that a woman from this country has attained such a distinguished position.

48. On the subject of accomplished women judges, allow me to also pay tribute to our pioneer lady judge, Honourable Justice Unity Dow, who the Chief Justice has informed us is leaving the bench. We thank her for her service, for having broken the glass ceiling in the judiciary, and wish her the very best in her future endeavours.

49. Similarly, I wish to add my add my voice to the word of welcome echoed by His Lordship the Chief Justice to the Honourable Justice Memooda Ibrahim-Carstens, who has joined the High Court from the Industrial Court, after ten years of distinguished service. My congratulations are also extended to Acting Judges, Honourable Gabriel Rwelengera and Honourable Terrence Rannowane.

50. Congratulations are also in order at the side bar, where Mr.
Tebogo Sebego has been elected as the Chairperson of the Law Society. Since he was until recently the Deputy Chairperson of the Law Society, I m sure that Mr Sebego is acutely aware of the huge challenges that confront his organization. I wish you and your newly elected committee well in your new role; I appeal to you to work towards greater professionalism, in a spirit of better unity among attorneys, respective of their age, nationality years of experience, or where hey may be employed.

51. It is only in that spirit that our profession, which is essentially a public profession, will earn the respect of the public,
and support from the government. It is also in that spirit that I stand ready to work with you to enhance the participation of Government Attorneys in the Law Society. My door remains open to provide a link between the side bar and the government on matters of importance to the profession.

HONOURABLE CHIEF JUSTICE

52. It is on that note of invitation that I end my address, and unless I can be of any further assistance to the Court, I am now ready to perform the second and easier part of what I was invited to do.

53. I move that the legal year 2009 duly commence, and thank you for your kind indulgence.