PRESS STATEMENT - BOTSWANA EXECUTION UPDATE XV

The second day of hearing in the application for a stay of execution by DITSHWANELO - The Botswana Centre for Human Rights and the two condemned men, Maauwe and Motswetla resumed on Tuesday, in the Lobatse High Court before Judge Reynolds.

The State was represented by the Attorney General, Mr. Phandu Skelemani, assisted by B. Machinya, and Miss N.D. Oitsile, while the applicants were represented by Advocates Brian Spilg and David Unterhalter from South Africa, and local Attorney, Kgafela Kgafela.

The Attorney General resumed his address to the Court after the previous day's adjournment. In response to Advocate Splig's submissions that the pro deo counsel Attorney Baera and Furusa, that they had not consulted with their clients before the trial, and if they had it was not adequate, Attorney Skelemani pointed out that Attorney Baera had asked for an adjournment from the court to consult with his clients. He further submitted that when an officer of the court applies for an adjournment for the purpose of consulting, he would normally consult. He said that the affidavits of the usual interpreter of the court showed that on numerous occasions during the adjournments consultations had taken place.

On the previous day Advocate Spilg had contended that capital offences due to their nature needed adequate consultations but the Attorney General disputed the claim saying there was no hard and fast rule as to how much time one needed to consult for it depended on the circumstance of each case.

The Attorney General conceded that it was highly unusual that counsel would allow statements from the dock, which contradicted confession statements - as happened in the trial - to go unchallenged. In response to Advocates Splig submissions that the lawyers had handed in confessions of the two condemned men without having read them, he said that this was not possible as they had read them. He however, said that the only reason for such a situation, which "completely boggles the mind" was that they were either young lawyers without experience, or it was simply stupidity.

On the question of language, the Attorney General said that it became increasingly apparent during the trial that both the condemned men had a good command of both Setswana and iKalanga. He maintained that their chief also asserted this, so their claim not to speak either language was a non-issue.

Attorney General Skelemani submitted that simply because there were no instructions contained in the file handed over by Furuza, nor any notes on the consultations nor on the trial proceedings , this could not be interpreted as implying that the applicants had not been adequately represented, or that consultations had not taken place. 

Attorney General Skelemani also told the Court that matters relating to the background of the two condemned men, and their family situations, which had not been put to the trial court would not have affected the original sentence, as the background had nothing to do with the murder charge. This was in response to Advocates Spilg's submissions that if the pro deo counsel had consulted with their clients they would have placed before the court the type of background that they had come from which would have gone toward extenuating circumstances.

He rounded off his address by stating that as far as the Court of Appeal is concerned, errors committed by counsel are insufficient to warrant the setting aside of a verdict. Despite the fact that the two condemned men had written to the Registrar of the High Court, prior to the hearing of their appeal, asking that their counsel be replaced as they no longer had confidence in them.

This letter, although received by the Registrar, had not been acted upon, so that attorney Baera and Furuza continued to act on their behalf, despite their objection.

In his in reply, Advocate Spilg accused the Attorney General of 'nit picking'. He insisted that the Attorney General had only highlighted that the defence offered by the pro deo counsel was "Inept to the highest degree", and maintained that their "representation was so ineffectual as to represent no real representation."

He maintained that the pro deo counsel had shown no real interest in their clients' case, and this was not what the Attorney General should expect of any pro deo counsel engaging the criminal justice system. He emphasised Attorney General Skelemani's admission that the failure to challenge the admission of the confessions as 'stupidity'.

By admitting the confessions, Advocate Spilg maintained, the course of the trial was irreversibly altered, especially as the trial judge had directed that more reliability be placed on the confessions than on the statements from the dock.

Advocate Spilg said that the whole proceedings, both in the trial court and the Court of Appeal had been based on assumptions regarding the behaviour of the pro deo counsel, and that these assumptions could not be reliably sustained. 

Advocate Spilg also returned to the question of language use, and asked the court if it could be sure that the applicants were able to adequately engage the criminal justice system in either Setswana or iKalanga. He highlighted this by emphasising that their original counsel, Attorney Kgalemang, (who had later recused himself), had, in an affidavit, stated that he had needed a Sesarwa interpreter in order to take instructions from the appellants, when they were still awaiting their trial.

At the conclusion of Spilg's reply, Judge Reynolds adjourned the matter, as he said he needed time in order to reach his decision. This he had translated into Secherechere (the language spoken by the two) for the two men who had been in the dock throughout the proceedings. 

5 October 1999
Gaborone