Press Statement of DITSHWANELO – The Botswana Centre for Human Rights

WORLD DAY AGAINST THE DEATH PENALTY – Failures of Justice – a Botswana Case Comes to a Close after More Than A Decade: Maauwe and Motswetla Granted Permanent Stay of Execution

10 October is World Day Against the Death Penalty. The theme this year is The Death Penalty: A Failure of Justice. The focus is on violations of international standards, including the right to a fair trial, in cases in which the death penalty is applied.

On Tuesday 25 July 2006, the Court of Appeal in Lobatse issued the final ruling in the case of Mr Tlhabologo Phetolo Maauwe and Mr Gwara Brown Motswetla, relating to the 1995 death of Mr Bashingi Majeremane. On 8 November 2006, In the Shadow of the Noose, a book about the case, will be launched by Advocate George Bizos, former Judge of the Court of Appeal in Botswana.

Over seven years ago, on 15 January 1999, Mauuwe and Motswetla, indigenous Basarwa/San men, were hours away from being executed by the Government of Botswana. DITSHWANELO – The Botswana Centre for Human Rights learned of the imminent execution through an apparent leak to the press, and immediately began working in an attempt to ensure that the men’s lives would be spared. DITSHWANELO was represented by Advocate Spilg SC and Attorney Kgafela Kgafela.

In March 2005 an order was given, freeing the men from custody after ten years in prison, but the State appealed the decision. On 25 July 2006, Maauwe and Motswetla were, at long last, freed from any shadow of the death penalty. On that day, the Court granted a permanent stay, prohibiting the carrying out of the sentences of death in respect of both Maauwe and Motswetla. The bringing of any further criminal proceedings against them in relation to the death of Majeremane is also prohibited.

DITSHWANELO would like to take this opportunity, on behalf of the legal team, to explain the results of the case and also to clarify issues raised by the judgment. The principal issue being reviewed by the Court of Appeal, at the request of the State, was whether or not the judges who issued the previous orders staying the executions and freeing the men had the proper authority to grant the orders (i.e. Judge Reynolds’ November 1999 order and Judge Walia’s subsequent order of March 2005).

Ultimately, it was determined that these judges had not had the proper authority, or jurisdiction, to grant the orders. Of importance is that the orders of Judges Reynolds and Walia were nullified not on the basis of faulty reasoning, but rather because they were found to have lacked the necessary authority, or jurisdiction to decide the matter. Indeed, the Court of Appeal, in its 25 July 2006 judgment, effectively reinstated the orders of Judges Reynolds and Walia insofar as it freed Maauwe and Motswetla from conviction, execution, and any further prosecution. Thus, to this extent, the recent judgment of the Court of Appeal was a vindication of the earlier decisions.

The rationale behind the Court decision to grant a permanent stay was based on the right of Maauwe and Motswetla to a fair trial, which is guaranteed by the Constitution of Botswana. The case was wrought with lengthy delays which chipped away at their right to be tried within a reasonable amount of time, and the fairness of the proceedings was otherwise put into question. In June 1997, following their initial trial, before the involvement of DITSHWANELO, Maauwe and Motswetla had had a letter written on their behalf to the Registrar of the High Court. The letter explained that the initial pro deo counsel assigned to represent them did not meet them before the trial. They thus requested new, competent representation for the appeal. The accused are illiterate, uneducated Basarwa men, who at the time only spoke a Sesarwa dialect fluently. The letter also explained that a Mosarwa interpreter had not been found, and requested that one be made available for the appeal. The Registrar of the High Court neither acted upon nor placed the letter before the Court of Appeal.

Consequently, the same lawyers represented Maauwe and Motswetla on appeal in 1997. The result was that the two men’s death sentences were confirmed, without the Court of Appeal judges knowing of what can only be described as gross incompetence on the part of the pro deo defense counsel. This was indeed a flagrant miscarriage of justice, perpetrated by both the State-appointed counsel and a Court administrator. While the issue is acknowledged in the Court of Appeal judgment of July 2006, we believe that those at fault should be more harshly reprimanded. Further, that these individuals were agents of the State and part of the larger pro deo system cannot be ignored. The culpability for these injustices thus extends to the State and the pro deo system generally.

The awarding of costs was also an issue addressed in the final judgment. The Court denied the request for an award of costs to the defendants, so that their defense team could be compensated for years of work on their behalf. During the course of the case, the fact that there is a lack of skilled personnel in Botswana’s pro deo system was frequently recognized as well as at workshops attended by practicing lawyers and judges. The fact that costs were not awarded by the Court in this matter will only exacerbate this serious problem. Experienced lawyers may be deterred or simply unable to assist needy clients, particularly when becoming involved in a case may require a commitment of years of his or her time and resources. In this case, Advocate Spilg and Attorney Kgafela invested more than seven years in representing Maauwe and Motswetla, with almost no compensation whatsoever.

DITSHWANELO believes that the serious problems afflicting the pro deo system, which were both central to and highlighted by the facts of this case, are indeed a solemn testament to the inappropriateness of the death penalty in Botswana. Failures of justice cannot be avoided within a system which easily enables miscarriages of justice to occur. DITSHWANELO calls for a comprehensive review of the pro deo system with the aim of ensuring that there is ‘access to justice for all’ in Botswana.

10 October 2006

Gaborone