Maauwe and Motswetla

Death Penalty Challenge - Botswana

The test case concerned Mr Tlhabologang Maauwe and Mr Gwara Brown Motswetla (two San/Basarwa men) who were arrested in 1995 for murdering the owner of an ox they had stolen. The man happed upon them when they were watching over the drying meat. They were pronounced guilty by the High Court of Botswana in April 1997. The Court of Appeal upheld their sentences in July 1997. In November 1998, their appeals for mercy from His Excellency President Festus G. Mogae were turned down. There were several postponements over the year for various reasons. In April 1999 the legal team challenged a Prison Regulation which provided for all visits to condemned prisoners to be within sight and hearing of hearing of Prison Officials. The Judge in the matter found that the said regulation was a violation of the Prisoners’ right to consult in private. He ordered that all future consultations be in sight but out of hearing of Prison officials.

The hearing from 2 - 5 August 1999, dealt essentially with the preliminary objections which the Attorney General raised on behalf of the State. The AG had several objections especially relating to DITSHWANELO’s locus standi. In his opinion, DITSHWANELO had no right to bring the matter to court as, among other things, DITSHWANELO was not a natural person and hence could not claim the constitutional rights which we were claiming and also because DITSHWANELO was not directly in the "...shadow of the noose..." and hence not directly affected by the matter.

The Judge ruled that DITSHWANELO did in fact have locus standi in the matter. He considered that DITSHWANELO would fit in the broadest definition of being "a person". He also stated that our constitution should be available and accessible to all. Difficulties arise in meeting this ideal by reason of factors that apply to certain persons such as lack of resources, remoteness and problems of communicating and understanding. In his view, there was enough evidence before the Court that Maauwe and Motswetla were illiterate, suffered from difficulties of communication, and were without resources and were otherwise ill-equipped to pursue their allegedly infringed rights whereas DITSHWANELO was in the position to act for them. He then ruled that to exclude DITSHWANELO at that point would be an unwelcome step as far as Maauwe and Motswetla are concerned and may amount to a threat to the interest of justice.

The Judge also noted that one of the pro deo lawyers appointed had stated on oath that his obligations and duties ended at the appeal stage of the case. It was apparent from the lawyers statement that the pro deo lawyers appointed would not have taken any further steps, such as taking constitutional points, to attempt to protect the rights of these two condemned men. The Judge presumed that the State would not object to granting DITSHWANELO locus standi, since "...it could be regarded as the best possible legal measure being available to Maauwe and Motswetla in this matter.

The San are indigenous peoples in Southern Africa. In Botswana the are referred to as Basarwa. They are a marginalised minority group.

Furthermore it is in the interest of justice particularly where Maauwe and Motswetla are not in a favourable position to pursue their rights adequately themselves..."

The Attorney General also raised an objection to several affidavits filed by DITSHWANELO and its two co-applicants. He objected on the grounds that some of the affidavits were scandalous and irrelevant, while others were vexatious and some he said, were not affidavits at all. Others, he claimed contained statements of hearsay (These are statements about facts which a person has not perceived with his or her 5 senses e.g. what was seen and heard by someone else) and arguments which were not allowed in affidavits as the law required that the affidavits must only contain statements of fact. He said that certain other affidavits especially those made by illiterate people as well as those made outside Southern Africa, should not be admitted by the Court as they had not been made in accordance with the law. Affidavits made by illiterate persons were required to have a certificate from the commissioner of Oaths stating that the affidavit had been translated and explained to the deponents in a language which they understood. He said that the paragraph in the text of the affidavit relating to illiteracy and translation (i.e. "... I am illiterate and this affidavit is being translated to me...") was not sufficient to comply with the law.

The Judge said that the parts of the affidavits which contained statements of hearsay and arguments would be struck out and that we were free to file replacement affidavits if we felt the need to. Concerning the affidavits made in the USA, the Judge ruled that the documents were inadmissible but that we were free to file corrected affidavits.

He said the affidavits relating to the death penalty were irrelevant as the High Court had no jurisdiction to make a pronouncement on the death penalty as the matter had already been previously decided by a higher court of justice i.e the Court of Appeal in the Ntesang Case. On this, the Judge ruled that the Ntesang Case did deal with a constitutional challenge to the death penalty, however the challenge was raised on different grounds to those raised by DITSHWANELO et al and hence he had the jurisdiction to hear such new arguments. He however directed that at the next hearing, he would first hear and deal with issues relating to a possible mistrial of the two men. If he found that the two men had indeed not had a fair trial and rules for a mistrial, then the two men would no longer be under sentence of death and therefore all arguments relating to the death penalty would be irrelevant.

This is the basis upon which the arguments at the hearing from 4 - 5 October 1999 were confined. At this hearing the Counsel for both sides confined themselves to arguments on the issue of the mistrial. Our attorneys argued that the counsel for the two co-applicants (Maauwe and Motswetla) at the initial trial did not consult with Maauwe and Motswetla. The counsel for Motswetla had since fled the Country escaping other charges of fraud levelled against him. Therefore the arguments were confined to the counsel for Maauwe who had made an affidavit on behalf of the State. To prove his point our lawyer brought the Court’s attention to the fact that there were no consultation notes in the file obtained from that counsel. There were no notes from the trial itself (i.e. this showed that either he did not care much or he did not have any

instructions from the client and had no strategy) Also, in reference to the record of proceedings, that counsel had failed to cross-examine key witnesses on essential aspects and evidence given by those witnesses. A handwriting expert had examined the counsel’s file and found that the two entries on the file cover indicating prison visits were suspect. The entries of 12/6/96 and 13/6/96 had "prison visit" indicated beside them. They were written by the same pen as a date in February 1997( about the same date as the letter to the Registrar - refer below); and, the date of 13/6/96 was written after the date of 17/6/96, meaning that it was put there after the fact. As well as other inconsistencies made by counsel in his affidavit.

There was also a letter written by that counsel to the Registrar stating that he had been forced to make a second visit to the prison with a Sesarwa (the language spoken by Maauwe and Motwetla) interpreter, as the two could not understand Setswana (the main language spoken in Botswana) or iKalanga (a language spoken widely in the region where Maauwe and Motswetla come from). He had however stated in an affidavit filed on behalf of the State, and before the court during the initial trial, that he had consulted with the two men in iKalanga. In his affidavit he says the two men understood both Setswana and iKalanga.

The AG’s arguments were that counsel’s poor conduct of the case could have been out of "...incompetence or stupidity..". and that it is probable that the counsel wrote the letter to the registrar so as to "...get more money..". However that did not refute the fact that counsel had consulted with the two men. The AG also argued that it was not true that the Maauwe and Motswetla were unable to understand Setswana and iKalanga as several affidavits filed on behalf of the state showed that they did, including an affidavit from the chief of the area from which Maauwe and Motwetla came.

On 29 October 1999, Judge Reynolds gave his ruling in the aspect of the mistrial. There were three issues raised by Counsel for the Applicants which the Judge considered. Firstly, that the pro deo Counsel assigned to the Second and Third Applicants were incompetent and/or they did not represent them adequately or properly. Secondly, that the Second and Third Applicants did not understand the proceedings properly as these were at times conducted in languages with which they were not fully conversant. Thirdly, that a letter, which was written by Mr Maauwe and Mr Motswetla to the Registrar of the High Court stating their dissatisfaction with their Counsel and asking that their Counsel be replaced, was not acted upon at all. Consequently, their letter was never placed before the Court of Appeal and the same Counsel represented them at the Court of Appeal level.

Judge Reynolds dealt first with the issue of the letter and expressed his view that this letter should undoubtedly have been placed before the Court of Appeal. Failure to do so amounted to a serious irregularity. Solely on this basis, the Appellant’s request for a new trial succeeds, as this was in breach of the fundamental rights afforded them by Sections three (3) and ten (10) of the Constitution of Botswana. Section three (3) of the Constitution deals with, amongst other things, the protection of law. Under section ten

(10) of the Constitution an accused person is entitled to a legal representative of his choice and an interpreter if he cannot understand the language used at the trial.

With regard to the other two issues in question, that is the alleged inadequacies of pro deo counsel and their inability to understand the proceedings. The Judge was of the opinion that since the written affidavits filed by both sides were contradictory oral evidence would have been helpful in determining these issues. Unfortunately this was not possible given the nature of the proceedings. Therefore the opportunity would be afforded them to give oral evidence and clear up these contradictions on a retrial.

The Learned Judge therefore held that the convictions and sentences imposed on Mr Maauwe and Mr Motswetla should be set aside immediately. A new trial in this matter was ordered. The Judge further said that the Attorney General has the right to decide on the nature of the charges to be brought against these two men and has the right to decline to prosecute at all. No costs were awarded to either side.

Publications

Death Penalty Project 1999 Full Report - A full report on the case of two Basarwa/San men who were sentenced to death for murder. The trial was later declared a mistrial after it was found that they were not given a fair trial.

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