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Chief Justice weighs in on “bail after bail”

The outgoing Chief Justice, Maruping Dibotelo*, this week aired his thoughts on the touchy topic of the granting of bail. Mmegi here reproduces his remarks as part of our continuing efforts to stimulate national discourse on the matter

In 2017, the Botswana Police Service upped the ante by pouncing unannounced on crime scenes following surveillance and intelligence gathering and parading suspects in the public glare on national television.

Using this strategy, police have arrested many suspects and recovered many unaccounted goods ranging from huge amounts of money, household property and drugs courtesy of the sniffer dog “Boots”.

As a matter of fact, a new phenomenon of drug abuse particularly motokwane, especially amongst the youth, has emerged which not only requires better resourcement of the Police Service but the active intervention of the parents and the community to stop the scourge. This is in consonance with the adage “no amount of law enforcement can solve a problem that goes back to the family”.

Added to this are the road accidents which are linked predominantly to careless driving, over-speeding which is turning our roads into racing tracks, unlicensed driving and driving under the influence of alcohol or drugs. Police visibility on our roads has proven to be a deterrent for overzealous motorists.

We in the judiciary, like the rest of the nation, commend the police for the job they are doing and join the appeal for the better resourcement and the establishment of specialised units in the critical areas which impact on investigations.

I wish to assure the nation that the courts will continue to impose deterrent and exemplary sentences upon those convicted of the aforesaid and other offences.

We however note an emerging disturbing perception that whereas the police arrest suspects, the courts are quick and busy frustrating their noble endeavours by releasing the said suspects on bail.

This narrative, if not properly handled, has the effect of setting the public against the judiciary. For example, during the course of last week, the police paraded on the national television, one accused person by the names of Keodiretse Tlhofaetse alleged to have committed the offence of murder whilst on bail for allegedly having committed another offence of murder.

Our records show that on November 15, 2016, this accused person was denied bail by the Village Magistrate Court and remanded in custody with his case being set for next mention on November 29, 2016.

Our records further show that when this accused person appeared before the magistrate on November 29, the police officer who represented the prosecution did not oppose bail.

 Instead he went on to propose conditions under which the accused person was to be released and the court duly released the accused person on the conditions as proposed by the prosecution.

It is worth noting that even though this offence was allegedly committed in 2016, as I speak, the accused person has not been committed for trial

by the High Court. I have in the past, taken advantage of forums such as this and stakeholders conferences to articulate the correct legal position and the situation as it obtains grounded by empirical data.

Please allow me to quote myself on what I said at the 2013 Legal Year Ceremony. “… the public outcry on its perception on how the judiciary has and is handling the issue of bail in this country is unnerving. I want to assure the nation that their concerns have not fallen on deaf ears.

There seems to be a blame game among stakeholders in the judicial and legal system on the issue of bail in particular with regard to the granting of bail to those who have committed certain types of offences and repeat offenders.

Whilst admitting that it is the court as the arbiter which is vested with the power to decide whether one is released on bail or not, the court does not act in isolation.  Neither does it rely on any other facts other than those presented before it to make a determination and the providers of this information are none other than the police as investigators and the prosecution.”

Statistics from the magistrates courts for the period November 2016 to October 2017 show that 4,207 bail applications were registered of which 731 (17%) were opposed result in 3,476 or 83% being released on bail unopposed.

Of the total number of 3,476 released on bail unopposed, 163 reoffended and were arraigned for similar or other offences.

The total number of applicants refused bail and who have been in custody for a period in excess of three months is 278.

Of this figure, 87 have been in custody for a period in excess of six months, while 17 have been in custody for a period in excess of 12 months pending conclusion of investigations.

It must be emphasised that the denial of bail must not be used as a mechanism for imprisoning people under the guise or pretext that investigations are ongoing. Something tangible has to be produced before the court. Further, Judges of the High Court have resolved that a person denied bail at the Magistrates Court must approach the High Court by way of appeal, save in other exceptional circumstances as there were many instances of queue jumping.

Judges and magistrates live in society and discharge their duties without fear or favour but no oblivious of the context and take all relevant factors into consideration in arriving at their decisions.

*Chief Justice Dibotelo was speaking at the Opening of the Legal Year on Tuesday in Gaborone. Have your say by emailing the editor on




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