On 13 September 1999, Justice Reynolds of the High Court at Lobatse, handed down a landmark ruling declaring that DITSHWANELO - The Botswana Centre for Human Rights, does have locus standi (the right to take a matter to court) in the DITSHWANELO / Maauwe / Motswetla case. This follows the 3 - 4 days of argument on the issue of locus standi and other preliminary points of law raised by the Attorney- General in the hearing of 2 - 6 August 1999.

The two men and DITSHWANELO were represented by two advocates from South Africa, Adv. Brian Spilg (SC) and Adv. Prof. David Unterhalter and Mr Kgafela Kgafela of Botswana. The Attorney- General, Mr. Phandu Skelemani and Mr. Lizo Ngcongco (who had conducted the original prosecution in Francistown) represented the State.

During the August hearing the Attorney- General Mr Skelemani, wanted the Judge to remove from the court record documents that were presented by the legal representatives of DITSHWANELO, Maauwe and Motswetla. The Attorney- General deemed those documents scandalous, vexatious and/or irrelevant.

In his decision Judge Reynolds wondered whether the Attorney- General chose the most suitable rule to cite in his application to have documents removed. In fact in the present matter Judge Reynolds believed that the Attorney- General here may well have been in error in citing the rule in question and yet not following the procedures specified therein. Despite this Judge Reynolds decided that the application of the Attorney- General is acceptable as it stands since DITSHWANELO, Maauwe and Motswetla would not be negatively affected by the admission of the Attorney- Generals application at this stage.

The Attorney- General contended in August that the Court of Appeal had delivered final and definitive judgments concerning the constitutionality of the death penalty and the execution by hanging and further attempts to raise these issues in this Court would therefore be irrelevant.

Judge Reynolds decided that there can be no objection to such a course if new, pertinent and previously unconsidered matter is placed before the Court. There are on the face of it however, new issues raised by DITSHWANELO, that could require further deliberation by the Court on constitutional issues. In the result this preliminary point raised by the Attorney- General failed.

In the August hearing leading counsel for DITSHWANELO, Maauwe and Motswetla, Advocate Spilg raised two issues:

DITSHWANELO, Maauwe and Moswetla accepted that Judge Reynolds ruled on the first issue only initially and in his ruling confined himself to a consideration of the Attorney- General’s application only so far as it relates to the mistrial aspect at this stage.

Judge Reynolds thought it logical to consider issues relating to the mistrial aspect first . Should the Court rule that the earlier proceedings were indeed so irregular that a failure of justice occurred, Maauwe and Motswetla would then resume the status of awaiting trial prisoners. They would no longer be under the sentence of death. This would make findings by this Court on the constitutionality of the death sentence and the manner of carrying out that sentence irrelevant.

It is pertinent to mention that the Court has not as yet made a ruling on the constitutionality of the death penalty or the method of carrying it out. The applicants contention is that they are unconstitutional and these issues are still to be finalised.

The Attorney- General had stated in his application that affidavits confirming that Basarwa are at times victimised and generally marginalised be struck out because of their scandalous, irrelevant and vexatious nature. This was denied, Judge Reynolds decided that the Court may find references to victimisation and Basarwa culture relevant to the mistrial issue in due course.

Judge Reynolds also decided that affidavits concerning the death in police custody of Gwati who was arrested with Maauwe and Motswetla were admissible provided that the statements of opinion and hearsay in those affidavits were deleted.

The Attorney- General objected to a further thirteen (13) documents that DITSHWANELO, Maauwe and Motswetla submitted. Judge Reynolds ruled that one(1) was not admissible in the present matter. The remaining documents were ruled to be admissible affidavits albeit some needed to be amended and these maybe included for consideration at the further hearing of this matter.

The remaining objection raised by the Attorney- General refers to the locus standi of DITSHWANELO. According to the Attorney- General DITSHWANELO does not have the right to bring these proceedings on its own as it did in January 1999. However, the Attorney- General had argued in January 1999 if DITSHWANELO was joined with Maauwe and Motswetla as co-applicants the Attorney- General would withdraw its challenge. But the Attorney- General did not withdraw its challenge and raised the same issue of locus standi in August.

Advocate Spilg expressed his concern that the Attorney- General reneged on his undertaking to withdraw the challenge whilst Maauwe and Motswetla have in fact since January supported DITSHWANELO ‘s application and have joined as co-applicants.

The Attorney- General defended his reviving of the locus standi issue and argued that the Director of DITSHWANELO had misled the Court when initially seeking a stay of execution stating that the sentence of death had been passed in 1995 whereas it has actually been passed in 1997. Furthermore the Attorney- General said he was not empowered to make concessions as he did in January since it was not in accordance with the law and therefore the undertaking given under oath in January should be ignored accordingly.

On the issue of misleading the Court Judge Reynolds decided that the explanation offered by the Director of DITSHWANELO for giving the incorrect date was understandable in view of the urgency of the matter and the Judge found no deliberate intention to mislead the Court.

The Attorney- General has stated that only the person directly affected could approach the Court. Only a person can complain that his constitutional rights were infringed and that DITSHWANELO being an organisation was not a person.

Advocate Spilg contended that a person includes a body corporate and unincorporated body as well as an individual. And to give effect to the Constitution it must be recognised that certain persons, associations or organisations may have the ability to motivate the protection of individuals who may not be able to act for themselves in any meaningful way.

In the Court’s ruling Judge Reynolds considered that DITSHWANELO would fit in the broadest definition of being "a person".

Judge Reynolds 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.

Judge Reynolds decided that there is evidence before the Court that Maauwe and Motswetla are illiterate, suffer from difficulties of communication, are without resources and are otherwise ill-equipped to pursue their allegedly infringed rights whereas DITSHWANELO is in the position to act for them.

DITSHWANELO is in essence a human rights organisation established for the primary object of standing for the protection of human rights of individuals within Botswana. DITSHWANELO holds that the death penalty and its manner of execution constitutes cruel, inhuman and degrading punishment and thereby contravenes the Constitution.

Judge Reynolds decided that to exclude DITSHWANELO now would be an unwelcome step as far as Maauwe and Motswetla are concerned and may amount to a threat to the interest of justice. DITSHWANELO will be allowed to participate in the judicial process it is obvious that not any and every person or organisation would be accorded locus standi. There must be some connecting link or common interest disclosed.

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.

Judge Reynolds satisfied himself that the Attorney- General’s challenge to DITSHWANELO’s right to locus standi should fail. Judge Reynolds 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. 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.

No order of cost was made at this stage of the proceedings. The matter was postponed to 4 October 1999.

13 September 1999
Gaborone