On the second day of the hearing (3 August 1999) in the case of two Basarwa (San) Tlhabologang Maauwe and Gwara Brown Motswetla, the State made it clear that it was determined to exclude DITSHWANELO - The Botswana Centre for Human Rights from the proceedings.

Among those who attended the hearing were Minister DK Kwelagobe, Minister of Local Government Lands and Housing under whose portfolio Basarwa issues are included, Chief Linchwe President of the Customary Court of Appeal, the Ombudsman of Botswana Mr L Maine, and His Grace Archbishop Khotso Makhulu, Archbishop of Central Africa and Patron of DITSHWANELO.

It was due to the intervention of DITSHWANELO that Judge Reynolds granted Maauwe and Motswetla an interim stay of execution in January this year. The two men had no legal representatives and without DITSHWANELO's assistance, would certainly have been executed on 16 January 1999.

Attorney General Skelemani, representing the State argued, that no fundamental rights apply to DITSHWANELO because it is not a natural person. Consequently it could not take such matters to court.

Advocate Spilg, DITSHWANELO's advocate, dismissed such argument by indicating that the Constitution of Botswana could be interpreted to include organisations in its definition of person.

Advocate Spilg, DITSHWANELO's legal representative, dismissed State allegations that the Director of DITSHWANELO, Alice Mogwe, was an interloper, conniving and had misrepresented facts to the court in January 1999 when the initial order had been sought. He also remarked that Skelemani's referral to DITSHWANELO's relationship with Amnesty International as having been collaboration brought to mind times in another jurisdiction when human rights organisations were accused of collaborating with communists and the Council of Churches. A clear reference to apartheid South Africa.

Skelemani requested that certain affidavits be struck out of the proceedings on the basis that they are irrelevant. Spilg noted that all the affidavits which Skelemani wished to have excluded related to the socio-economic aspects of the case, the safeguards necessary for the language interpretation process within the judicial system, structural defects in the legal system which have constitutional consequences; marginalised comunities and the way in which they are perceived and perceive themselves.

Spilg also noted that while the State wished to exclude the Applicants documentation and affidavits referring to the death in custody of Gwati Monato, it sought to retain its own documentation relating to the same issues. Mr Skelemani cannot have it both ways he said. Maauwe and Motswetla have alleged that they, together with Gwati, were tortured by the police. Gwati died after this assault.

The hearing continues tomorrow.

3 August 1999
Gaborone