PRESS STATEMENT – BOTSWANA EXECUTION UPDATE (XVII)

On 29 October 1999, Justice Reynolds handed down a landmark ruling in the DITSHWANELO / Maauwe / Motswetla case at the High Court at Lobatse. The full judgement will be available by 8 November 1999.

Advocate Brian Spilg (SC), Professor David Unterhalter from South Africa and Attorney Kgafela Kgafela of Botswana represented the Applicants in this matter. Attorney Kgafela Kgafela was present when judgement was handed down in open court. There were two Junior State Counsels in attendance representing the State on behalf of the Attorney General.

There were three issues raised by Counsel for the Applicants during the October hearing, 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.

DITSHWANELO – the Botswana Centre for Human Rights is encouraged by the judgement and grateful that these two men are no longer under the sentence of death but are once again on remand.

The declaration of the mistrial again strengthens DITSHWANELO’s conviction that the death penalty should be abolished. Indeed, had it not been for the timely intervention of DITSHWANELO, Mr Maauwe and Mr Motswetla would undoubtedly have been executed in January 1999 without being afforded a fair hearing.

The death penalty is a final irredeemable punishment. Once executed, one cannot compensate the person who might be wrongly executed for human errors made in the operation of the system of justice.

There is also the question as to the adequacy of the pro deo system. Pro deo lawyers are paid meagre fees of approximately P300.00 per court appearance. An Attorney who is conducting a similar matter on a paid brief may command as much as P2000.00 per court appearance. Due to these low fees, it is mostly young and inexperienced lawyers who do pro deo work. Even in cases where experienced Counsel is employed the lack of reward might deter them from investing the time and energies required to conduct a spirited and thorough defence of their clients whose lives might be at stake.

Mr. Maauwe and Mr. Motswetla have obtained reprieve from the hangman’s noose. They are still in custody and are on remand awaiting a new trial at the discretion of the Attorney General.

1 November 1999
Gaborone