In today’s judgment, Judge Kirby focused on the role of the Botswana Constitution in safeguarding fundamental human rights. However, he dismissed all the grounds of the criminal application by Attorney Themba Joina on behalf of his client, Mr Lehlohonolo Kobedi.

Mr Kobedi had argued for a review of his trial on the grounds that it had not been fair. He asserted that during the trial, he had not had an interpreter who spoke his language, namely Sotho. He also stated that he had not had a legal representative of his choice. Judge Kirby emphasised the importance of the right to a fair trial. However, he ruled that Mr Kobedi’s right to a fair trial had not been contravened to the extent that it would have led to the quashing, on constitutional grounds, of the decision that he was guilty of murder.

Judge Kirby noted that during the trial, Mr Kobedi had shown a good grasp of the English language. He had seemed to follow the proceedings and had given his testimony in English. Of significance was the opinion of Judge Kirby, that the right to interpretation did not mean the right to have the proceedings in court held in the language of the choice of the accused. Instead it means that the proceedings should be held in a language which the accused understands.

While he noted that the right to be represented by a lawyer of ones choice is an important right, Judge Kirby was not convinced that Mr Kobedi had been denied a legal representative of his choice throughout the proceedings of both the High Court and the Court of Appeal.

Mr Kobedi had further requested a permanent stay of execution on the grounds that there had been an unreasonable delay between the decision of the Court of Appeal and the date of the criminal application. Mr Joina had indicated that this delay was exacerbated by the prison conditions and the poor health of Mr Kobedi. He also indicated that Mr Kobedi had been denied appropriate health care by the Prison officials. He is in urgent need of an operation which can only be conducted in South Africa.

Judge Kirby ruled that a period of a nine month delay was not unreasonable. He made reference to court decisions in which a longer period of twenty two months was accepted as reasonable. Judge Kirby also accepted as justifiable, the defence of the Attorney General in relation to the delay of nine months. The Attorney General had explained to the court during the hearing of the application that Mr Kobedi had requested assistance from DITSHWANELO – The Botswana Centre for Human Rights. He had further explained that DITSHWANELO responded that it lacked the necessary finances to support the case and consequently requested that Mr Kobedi be provided with pro deo counsel who would be paid for by The State. The Attorney General had also stated that Mr Joina was subsequently appointed pro deo counsel. Mr Joina refused to be appointed as pro deo counsel and had informed the High Court that he was to be paid for his services, but not by The State.

Mr Joina intends to appeal the decision of Judge Kirby on behalf of Mr Kobedi.

DITSHWANELO- The Botswana Centre for Human Rights continues to be concerned about prison conditions and lack of adequate health care for prisoners. DITSHWANELO will continue in its endeavours to mobilize local and international support for Mr Kobedi in his case.

27 July 2001
Gaborone