At the hearing today (5 August 1999) of the Maauwe and Motswetla case, all arguments relating to the application brought by Attorney General Skelemani, were concluded. The main thrust of the application was an objection to the locus standi of DITSHWANELO- The Botswana Centre for Human Rights.

Skelemani concurred with the point of DITSHWANELO’s senior advocate, Advocate Spilg, that not everyone in Botswana was able to enjoy their fundamental rights. Skelemani said that ` ... there are difficulties experienced by our people in their enjoyment of their rights endowed by the Constitution ...’ He also stated that ` ... some of us may not, in certain instances, be able to approach a court’. He recognised that the pro deo system provided by the State may not work, but asked `By what logical reasoning does it follow that DITSHWANELO has locus standi?’

The State also contended that the issue of the constitutionality of the death penalty lay beyond the competence of Judge Reynolds as the matter had been previously decided at the Court of Appeal.

DITSHWANELO argued that it was concerned about fairness, equity and arbitrariness in relation to the process of trials which have led to the imposition of the death penalty. It is generally `the incapacitated (including the detained) who most require protection against the infringement of rights’. Spilg stated that `if a person has a right which is infringed and is unable to enforce it effectively because of illiteracy or restraint, then an organisation (such as DITSHWANELO), `must be permitted to do so’.

The State also objected to certain affidavits presented by DITSHWANELO. The concern was that the Commissioner of Oaths had not verified the fact that he had witnessed the translation of the affidavits into a language understood by those who had made the affidavits. In this case, the San language, Secherechere. Most of the Basarwa who deposed to the affidavits in this case are illiterate.

DITSHWANELO’s lawyers noted that most of the affidavits to which the State objected were those which related to the socio-economic aspects of the case. They nevertheless agreed to make the necessary adjustments before the date of the next hearing.

Judge Reynolds is to deliver his ruling on whether DITSHWANELO has the right to continue to participate in this case. He is also to decide on whether all the affidavits submitted by DITSHWANELO and its co-applicants are to remain part of the case. The ruling of Judge Reynolds is expected within the next two to three weeks.

The hearing has now been postponed to 4-8 October 1999 and 2-5 November 1999.

5 August 1999
Gaborone