On Wednesday 21 April 1999, Judge Dibotelo declared as ‘unreasonable’ a prison regulation which prevented Mr Tlhabologang Maauwe and Mr Gwara Brown Motswetla from consulting their legal representatives in private.

On Wednesday 14 April 1999, Mr Maauwe and Mr Motswetla filed an application at the High Court of Botswana. The application challenged Prison Regulation 75(1) because it effectively provided for consultations with legal representatives to be held ‘in the sight and hearing of at least two prison officers’. Advocate Spilg (SC), representing the two men, argued that having to consult within the hearing of prison officers was a violation of the men’s fundamental right to legal advice and therefore to a fair trial. He also stated that Prison Regulation 75(1) was ‘ultra vires’ the Prison Act.

Mr Skelemani, the Attorney General of Botswana arguing for the State, stated that the constitutional matter of the right to a fair trial could not be decided in the hearing before Judge Dibotelo. Instead the matter should be dealt with at the hearing on the 28 to 30 April 1999.

Judge Dibotelo agreed with Attorney General Skelemani and ruled that it was not appropriate for the constitutional issue relating to a fair trial to be decided upon at this hearing. He stated that the matter would be best dealt with at the hearing on 28 to 30 April 1999.

Judge Dibotelo also ruled that ‘... in respect of a prisoner under sentence of death, the right to consult with his legal representatives out of the hearing of other persons, including prison officers, is sacred and sacrosanct ...’ Consequently, Judge Dibotelo ordered that consultations between Mr Maauwe and Mr Motswetla ‘and their legal representatives are to take place in the sight but beyond the hearing range of the prison officers’.

DITSHWANELO - The Botswana Centre for Human Rights, which brought the initial action which suspended the execution of Mr Maauwe and Mr Motswetla, is committed to the right of all people to legal advice so that any person charged with an offence is ensured a fair trial.

21 April 1999
Gaborone