MAAUWE AND MOTSWETLA ACQUITTED AND DISCHARGED

DITSHWANELO- The Botswana Centre for Human Rights applauds yesterday’s decision of Judge Walia, which upholds the constitutional right to a fair hearing within a reasonable time.

On Monday 21 March 2005, the two Basarwa/San men, Gwara Brown Motswetla and Tlhabologang Phetolo Maauwe, were acquitted and discharged following the ordering of a re-trial in October 1999. Until their release, they had been in prison since 1995.

The re-trial had been ordered because in 1999, the High Court found that they had not had a fair trial when their case had initially been dealt with by the Court, which had found them guilty of murder and sentenced them to death. In February 1999, their impending execution was prevented by the intervention of DITSHWANELO, which had obtained an interim stay of execution. In October 1999, Judge Reynolds had set aside their convictions and sentence and ordered a re-trial. Consequently, in February 2000, they were again charged with murder.

The State challenged both the power of Judge Reynolds to have heard the matter in 1999, and that of Judge Walia to re-try the men. In yesterday’s judgement, Judge Walia ruled both that Judge Reynolds had had the jurisdiction to hear the matter in 1999 and that he, Judge Walia, also had the power to re-try the men.

In August 2004, with the trial not yet commenced, Advocate Brian Spilg and Attorney Kgafela Kgafela, representing Messrs Maauwe and Motswetla, argued that the prosecution of the men was unconstitutional as it violates their right to be tried within a reasonable time. They consequently asserted that the prosecution should therefore be permanently stayed or stopped and the accused acquitted and discharged of all offences with which they had been charged. The State blamed DITSHWANELO for the delay as we had spent considerable time in communication with the Office of the Registrar and of the Chief Justice, requesting that Spilg and Kgafela, who had been the legal representatives of the applicants in DITSHWANELO, Maauwe and Motswetla vs The State, continue as their legal representatives. However, Judge Walia noted that there was ‘a disturbing dearth of responses to the DITSHWANELO letter and reminders. Some of the letters had not even been acknowledged when DITSHWANELO, frustrated and in the interest of expediting matters, chose to abandon their quest for Mr Spilg and Kgafela to be appointed at State expense. Only at that stage, did the trial set down machinery start moving.’ Due to this and other delays such as the State losing its own exhibits for the case, Judge Walia consequently found that ‘the State must bear the responsibility for the unreasonable delay in bringing the applicants to trial’. As the delay was such ‘as to deprive the applicants of their right to a fair trial within a reasonable time’, he decided that ‘there be a permanent stay of the prosecution of the applicants’ and acquitted and discharged them.

DITSHWANELO continues to monitor and campaign against the death penalty in Botswana. We call for a restorative justice approach to crime. We maintain that there is no evidence which supports the argument that the death penalty is an effective deterrent. What is required, is the effective addressing of socio-economic conditions which contribute to the prevalence of crime. DITSHWANELO also maintains that the right to a fair trial within a reasonable time is essential to ensure access to justice for all.

DITSHWANELO reiterates its call to the Government of Botswana to implement a moratorium on the death penalty. In the words of Kofi Anan: “The forfeiture of life is too absolute, too irreversible for one human being to inflict on another, even when backed by legal process” – December 2000.

22 March 2005
Gaborone