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

source: Republic of Botswana (6/2/10) TAUTONA TIMES no 1 of 2010
The Electronic Press Circular of the Office of the President
"Democracy, Development, Dignity, Discipline and Delivery"


B2) 2/2/10: ADDRESS BY DR ATHALIAH L. MOLOKOMME, ATTORNEY GENERAL, ON THE OCCASION OF THE CEREMONIAL OPENING OF THE LEGAL YEAR:

[Salutations]...Distinguished Ladies and Gentlemen;

1. The year 2009 has come and gone, and we are back in this Honourable Court, marking the beginning of another legal year. Before I respond to your Lordships address, it is my singular honour and privilege to congratulate you on your appointment to the high office of Chief Justice of the Republic.

2. Allow me to join you in paying tribute to the outgoing Chief Justice, the Honourable Mr Justice Julian Mukwesu Nganunu, who gave many years of dedicated and exemplary service to the judiciary and the nation. I agree with you that he leaves a great legacy of which he can be proud. We wish him the very best in his retirement, and that he recovers fully from his illness.

3. Much has happened on the legal scene and in our country during the past year, as well as in the global village in which we live. One of the major highlights was the holding of our general elections on 16 October 2009, the organisation of which was, by any standards, a great success. For elections are not simply an act of the people choosing their political leaders, they are an exercise of a fundamental right under our Constitution, and must of necessity be conducted in strict compliance with the law.

4. It is in this regard that I would like to acknowledge the contribution of the Administration of Justice, through the Honourable Chief Justice's constitutional role as returning officer for the Presidential election, and the hearing of election petitions, among others.

5. I must especially commend the Court for arranging that a panel of three judges hear the seven election petitions following the elections last year, and doing so well within the 90 day maximum laid down by the law.

6. You have, Honourable Chief Justice, touched upon a number of important developments and issues in the area of service delivery. These include the implementation of new initiatives such as the small claims courts, the stock theft courts and the judicial case management system.

7. It is indeed pleasing to see that the judiciary has joined forces with the rest of the nation in addressing His Excellency's latest addition to the D block: delivery, otherwise known as the 5th D.

8. I must congratulate the Administration of Justice on the establishment of the stock theft courts, fulfilling a promise made by the Honourable Chief Justice in his 2009 address. The update we have just received from your Lordship shows that despite some logistical problems and resource constraints, the courts are up and running and will go some way towards addressing the scourge that stock theft has become.

9. I am also pleased to inform the Court that a Bill was published in November 2009 proposing amendments to the Magistrates Courts Act, to enable assessors to sit with the court in criminal cases. It is my sincere hope that this will go through the next session of Parliament, and should contribute positively to the more efficient disposal of stock theft cases.

10. I entirely agree with your Lordship that justice delayed is justice denied, and that we must take urgent steps to expedite the disposal of cases. I also agree that the outcome of criminal cases depends on the quality of evidence adduced before the courts, and that this requires the police to improve the quality of their investigations. I should however respectfully add that good quality investigations, especially in the light of increasing and sophisticated criminality, can be time consuming, and dockets sometimes have to be returned by the DPP to the police or the DCEC, many times over, for further investigations.

11. In this regard, I would implore members of the public, including the media and members of the legal profession, to understand this and desist from speculating on the guilt or innocence of suspects, or the motives of the government and the police, while investigations are ongoing. I say this because during the past year, there was much talk about what some have termed 'extra-judicial killings' and all manner of allegations made about the involvement of various persons and state agencies in the death of suspects. I appeal to all to allow investigations to be conducted in a professional and objective manner, allowing the DPP an opportunity to decide whether to exercise her constitutional power to bring charges against suspects.

12. In the interests of transparency, I can report that during 2009, the DPP received at least four dockets relating to cases which involved the death of persons who came into contact with law enforcement agencies. The DPP informs me that she is in the final stages of assessing the evidence with respect to three of these, and should be in a position to make her decision in the next few weeks. In the fourth case, inquest proceedings launched by the DPP recently ended, with the coroner's findings expected shortly.

13. I hope that this update will lay to rest the speculation and allay any fears that the state has embarked on a policy of executing suspects without bringing them before the courts. In a country such as ours that operates according to the rule of law, it is the courts that will eventually determine the culpability or otherwise of those concerned.

14. It is in the same spirit that I recently found it appropriate to issue a statement advising the public on the legal position regarding the infliction of corporal punishment in this country. I wish to reiterate, in open court, that while corporal punishment is a competent sentence in certain defined cases, it should be carried out within the strict boundaries of the law. Under our Constitution, no person, group or tribe, is exempted from, or above the law.

15. Honourable Chief Justice, I must also commend you for the establishment of small claims courts, who's Bill I reported in my address only last year, was being discussed in Parliament. I believe that the challenges to which your Lordship refers are not insurmountable, and resources permitting, can be dealt with swiftly to ensure that the public are assisted at minimal cost.

16. Turning to the Judicial Case Management (JCM) System, I am pleased to confirm that the system has tremendously improved the turnaround time for resolving civil cases lodged at the High Court.

17. It appears however that some of the challenges to which I referred in my 2009 address persist. These include its delayed cascading to the magistrate's courts, inconsistent application by judicial officers, and inadequate coordination between the High Court and subordinate courts.

18. The drive to conclude cases has naturally resulted in a marked increase in court attendances in the form of roll calls, which are sometimes compiled without taking the availability of counsel into consideration, thereby exerting pressure on our already overstretched resources. Worth noting also is that the marked increase in roll call attendances could result in litigants paying increased legal costs.

19. I do acknowledge that since the inception of the JCM the Judges' workload has become more complex and there is a need for the judges to commence their meetings earlier in order to meet their targets. Thus some courts now start as early as 08:00hrs, but the distance between Gaborone and Lobatse, coupled with limited transport resources at our disposal, does create constraints. These and other issues will be placed before the Criminal and Civil Justice Fora which we share with the Judiciary and Law Society.

20. Another issue of concern relates to part-heard matters, especially criminal cases, at the Magistrates' Courts. A growing trend is noticeable where Presiding Officers in subordinate courts leave service before completing matters assigned to them. This frustrates efforts at achieving the speedy disposal of cases, and the matters are often referred to the High Court for directions.

21. Some former Magistrates do not cooperate, or set unreasonable conditions (such as exorbitant remuneration rates) for continuing with the case, and some matters have to be re-tried at great expense. I appeal to colleagues in the profession, both public and private, to demonstrate greater sensitivity and compassion to the public whom we all serve.

22. The departure of senior staff from my Chambers to the private sector, and the judiciary, continues to be a matter of concern and will no doubt adversely affect service delivery.

23. To cite one example, the DPP has had to temporarily put on hold the further taking over of cases from the police in areas that had been earlier identified. The Directorate of Public Prosecutions has taken over the prosecution of cases at most of the Police Stations in Francistown, 5 (five) out of 10 (ten) Police Stations in Gaborone, the 2 (two) Police Stations in Lobatse, all Police Stations in Maun and a large volume of cases in the Palapye region.

24. The intention was for the DPP to take over the prosecution of cases in Selebi-Phikwe this financial year, but due to financial constraints, that plan has been put on hold. The plan is to increase staffing levels in Palapye so as to enable the Palapye Regional Office to cater for Selebi-Phikwe and surrounding areas.

25. Honourable Chief Justice, in the field of legislation, in the past year, twenty one (21) Bills were published, of which seventeen (17) were enacted into law. These include such important enactments as, the Small Claims Courts Act, the Children's Act, the Financial Intelligence Act, the Competition Act, the Botswana Tourism Organisation Act, the Tourism Act and the Statistics Act. The last six enactments have been published and will commence by orders published in the Government Gazette. Also enacted in 2009 were one hundred and four (104) Statutory Instruments, and six hundred and eighty (680) Government Notices were published.

26. The Law Revision Order updating the Laws of Botswana up to 31st December, 2008 was published on 28th August, 2009 as Statutory Instrument No. 72 of 2009.

27. The next law revision service updating the Laws to 31st December 2009 is expected to be published around June this year. It is our hope that the 2008 volume of the Botswana Statute Law which has been delayed at the Department of Government Printing and Publishing Services for almost a year will be published before the end of the current financial year.

28. In November last year, I had the pleasure of launching the Laws of Botswana on the internet for free access by the public, at www.laws.gov.bw. This very important milestone is still work in progress, as the ultimate goal is to publish an e-Laws website which will extend access to new legislation, through linkages to the e-Gazette, as well as reported and selected unreported cases.

29. Regarding the publication of the Botswana Law Reports, unfortunately it has not been possible to bring the 2008 reports up to date. Due to operational challenges, two volumes of the Botswana Law Reports, 2008(2) and 2009(1) which should have been published in April and October 2009, respectively are now expected to be published during the last quarter of this financial year. It is therefore understandable that at the opening of the January, 2010 session of the Court of Appeal, the Acting Judge President of the Court, the Honourable Mr. Justice McNally raised a concern in this regard.

30. The concern of His Lordship is one that is also shared by myself as host of the secretariat of the Law Reporting Committee.

31. Once the problem of collection and supply of judgments is addressed everything possible will be done to ensure that the reports are brought to date in the next few months. It is however also anticipated that during the course of the next financial year (2010/2011), the law reporting function will be transferred to a dedicated Law Reporting Unit which is to be established under the Administration of Justice. This would ensure that law reporting is done at source, and will be another milestone in the implementation of the restructuring of the Attorney General's Chambers, which has been pending.

32. The process of establishing a dedicated law reform function, to which I referred in my last address, is ongoing. The study that was commissioned to identify an appropriate institutional law reform structure for Botswana was completed last year. The recommendations of the study are currently being processed for consideration by the Executive. Due to the inevitable budgetary cuts, the implementation of this project is currently uncertain, while the possibility of donor support is being explored.

33. Equally uncertain for the same reasons is the funding of a national legal aid system beyond the pilot phase. In addition, we experienced delays in the recruitment of an interim Coordinator, but hope to be able to make progress during the next few months, with the assistance of the interim Board that has been set up.

34. Honourable Chief Justice, on the international law scene, Botswana is signatory to a number of international instruments which place various obligations on the country. States Parties are expected to submit reports with information on legislative, judicial, administrative and other measures undertaken to implement these instruments. In this regard, Botswana's first ever Report on the African Charter on Human and People's Rights was presented to the African Commission on Human and People's Rights by the Minister of Defence, Justice and Security, in November 2009. A response to the specific questions raised by the Commission during the presentation of the Report is being prepared.

35. The Combined Initial, First, Second and Third Report on the Convention on the Elimination of all forms of Discrimination against Women was considered by the UN Committee only last week, and we await their response.

36. Another critical issue on the global scene is that of climate change, and Botswana has been actively involved in the Climate Change Negotiations. We participated in the last Conference of the Parties that was held in Copenhagen in December 2009. The negotiations entail the continuation of the United Nations Framework Convention on Climate Change and its Kyoto Protocol which set emission reduction targets for developed countries.

37. The Conference ended with the adoption of the Copenhagen Accord which, whilst yet to be finalized into a legally binding instrument, contains important principles for safeguarding our planet, with which Botswana has associated itself.

38. Other international instruments include various international trade agreements under the auspices of regional trading blocs such as the Southern African Customs Union (SACU) and Southern African Development Community (SADC). Of particular significance is Interim Economic Partnership Agreement (IEPA) between four SADC Member States and the European Union, which was signed on 4th June 2009. The IEPA will allow goods originating in Botswana to gain greater access to the European market on a duty-free, quota-free basis. The IEPA is of particular significance to our beef industry because it secures preferential market access for Botswana beef entering Europe.

39. It is therefore critical that measures are put in place for all parties involved in dispute resolution to familiarise themselves with the developments regarding these areas of the law in order to do justice to the disputing parties. This will also assist in maintaining investor confidence in the judiciary in Botswana to support the Government's efforts of attracting and retaining foreign direct investment in Botswana.

40. As I indicated earlier, Parliament recently adopted the Competition Act of 2009, which will commence by order to be published in the Government Gazette. This Act is intended to ensure fair competition amongst business entities at different levels in the chain of production by ridding the market of anti-competitive business practices. The Act seeks to achieve this by prohibiting the abuse of dominance by those with market power. The Act also regulates mergers and acquisitions so as to guard against the creation of market power and possible abuse of dominance.

41. Implementation of the Competition Act will present another potential area for new types of disputes that may lead to an increase in litigation. The Act provides that decisions or determinations made by the Competition Commission established under the Act, or direction given by the Commission, shall be appealable to the High Court as if they were an application for judicial review. It is therefore paramount that there be adequate training in this area, which is new to our jurisdiction, to adequately prepare all stakeholders that may be involved in disputes under the Act. This means that legal practitioners and the judiciary should familiarize themselves with the Act, and invest in training staff to be adequately equipped to deal with competition law related matters.

42. Honourable Chief Justice, as I move towards concluding my address, I would like to take this opportunity to congratulate Honourable Mr Justice Motswagole, Honourable Dr Tshosa, Honorable Dr Justice Solo and Honourable Mr Justice Leburu on their appointment to the High Court. Congratulations also go to the Honourable Mr Justice Diratsagae Molomo, who was appointed as Judge of the Industrial Court during the past year. We wish them long, enjoyable and distinguished careers on the Bench.

43. I hope you will also allow me to congratulate the Honourable Dr Margaret Nnananyana Nasha on her election as the first woman speaker of the National Assembly, and who is attending this court session for the first time in that capacity.

44. Honourable Chief Justice, it is now my pleasure and privilege to move the commencement of the 2010 legal year, and thank you for the opportunity.