The five-men Court of Appeal (CoA) bench this week left Sunday Standard editor, Outsa Mokoneís attorney, Dick Bayford in a tight corner as they could not barge to the demand of making any constitutional ruling in relation to the sedition law.
The bench led by Judge President, Ian Kirby will not be making any determination on the part of constitutionality on the matter in which Mokone is appealing a High Court judgement that found part of the sedition law to be constitutional.
The justices said they could not be expected to determine whether Sections 50 and 51 of the penal code were ultra vires (beyond the powers) to Section 12 of the Constitution as they were not presiding over the sedition case which is currently pending at the Magistrate’s Court.
The Judges insisted that the matter will have no barring on Mokone’s pending sedition case, therefore there was not going to be any use to dwell on it.
“The matter is on an academic level in the sense that at the time it was lodged, Mokone was not charged yet, so it would not be right to make determination, more so that not much facts have been laid for us,” was a comment of the bench.
Mokone is currently on bail in a case in which he is accused of publishing a seditious story contrary to section 51 (1) (c) as read with section 50 (1) of the penal code (Cap 08:01) Laws of Botswana and the Criminal Procedure and Evidence Act. The current CoA matter has led to the case’s postponement until the CoA issues its judgement.
Bayford surrendered his fight after a lengthy debate as he insisted that the court should determine whether the two sections were constitutional or not as they go beyond Section 12 of the Constitution, which guarantees the right to freedom of expression.
The focus now turned on the legality of the warrant of arrest and legal representation during Mokone’s detention.
Bayford wanted the bench to declare as invalid and unlawful the warrant of arrest issued against Mokone by Broadhurst Magistrate on September 2, 2014 on the basis that his client was not afforded prior notice of the application for the warrant.
Bayford argued that the court a quo’s finding was merely based on speculation as the only evidence before the court was a copy of the warrant itself and the application for the warrant.
On the legal representation, Bayford submitted that his client’s legal representation’s rights were violated as he was denied a chance within a reasonable time while detained.
His argument was that the court a quo judgement in respect of the issue be upheld as it found that his client’s legal representation as enshrined in Section 10 (2) (c) of the constitution was infringed by the delay in access to legal counsel.
“The court was right to find in respect of my client, despite the respondents contending he was able to consult within hours of his arrest which is not true as upon his arrest between 8-9 September 2014, there was a delay,” he said.
He said the station commander’s refusal to allow him access to his client whilst in police custody, infringed on his client’s rights to legal representation and access to the court, therefore the court should uphold the ruling.
Olayemi Aganga, representing the three respondents; Attorney General, Gaborone Chief Magistrate and the Commissioner of Police, denied that Mokone was arrested unlawfully, arguing that the warrant was issued procedurally.
“The warrant was applied for and issued lawfully.” Aganga was also challenging the finding of the court a quo that found that Mokone’s access to his lawyer was denied.
He told court that it was rather a case of delay, not denial as the appellants put it.
“It is not true that the appellant was denied access to his lawyer. I admit that there was time lapse on our part, which led to the delay therefore the court should take that into consideration. Judgement is set for February 2, 2018.