03 Feb 2021

Law Society of Botswana (LSB) chairperson, Mr Tshekiso Tshekiso, has said the society is concerned about long incarceration of accused persons awaiting trial, especially in cases involving undocumented foreign nationals.

He implored judicial officers to impress upon state representatives to ensure that investigations of such cases were completed as swift as possible and trials conducted without delay. 

Mr Tshekiso said the advent of COVID-19 had brought with it a new system where some suspects were remanded in custody without even appearing before judicial officers. 

If they did appear, they were remanded in custody for periods longer than permissible in the Criminal Procedure and Evidence Act. 

Mr Tshekiso said the law society was concerned with excessive delays in the transcription and transmission of records from subordinate courts, especially magistrate courts, to appellate courts for the prosecution of appeals. He said the delay was prevalent in criminal cases since some convicts served their sentences wholly before their appeals were heard. 

Talking to appointment of judges, he said the law society was of the view that the exercise was a critical cog in the dispensation of justice, but had observed lack of transparency in the process and therefore cautioned that the current arrangement was likely to lead to appointments that compromise quality of justice dispensed and lower the standards of courts. 

Mr Tshekiso said though the law society remained an ardent proponent of localisation, that should not be done at the expense of quality and merit. 

On the appointment of magistrates, he said the the current approach must be reconsidered. “Not only does it often lead to failure in delivery justice, but also to exposing and possibly destroying professional careers of young legal practitioners,” he said.

He said to the law society, appointment of magistrates from graduates, does not always turn out best as most were young and without sufficient experience to be given such immense responsibility and power. 

“The exuberance of youth may also sometimes unfortunately lead wayward, rash, and unsympathetic conduct against litigants and legal professionals,” said Mr Tshekiso. 

He said delay in delivering judgments continues to be a challenge, and at times forcing litigants who had wanted to enforce their perceived rights to abandon the route of courts. “One is likely to be stuck in the court process until their matter becomes moot,” he said. 

He said delays lead to increased use of arbitration, which was not cheap and therefore only available for the well off. He also raised concern on a growing culture by some judicial officers to hand down judgments by pronouncing orders only, with promises of a written judgment to follow.

He said such judgements will come late, giving concerned parties no time to consider their options. In some instances, he said appeals were filed without the benefit of the reasons for the order. “We are however hopeful that this culture will be ended by the application of the timelines provided for in the recently amended rules of the High Court,” he said.  

Responding to some of the concerns raised by the society, Attorney General Mr Abraham Keetshabe said the judiciary was aware of challenges faced by challenges faced by illegal immigrants while in incarceration. He said there were no intention of keeping them long, and resources permitting they will be deported well on time. 

On assigning judges to preside over cases, Mr Keetshabe said the choice was done based on the credibility of a judge. 

Mr Tshekiso’s concern was that giving the Chief Justice the discretion to decide which judges were to hear which cases cast an element of doubt on fairness and transparency.

In relation to appointment of High Court Judges, Mr Keetshabe said the process was open for anyone who qualified to apply and therefore believeds the process was transparent. ends