Minor granted bail due to an 'ill-equipped justice system'

Lesedi Mkhutshwa | Wednesday April 30, 2025 12:55

The particulars of the offence are that the minor, together with two adult co-accused persons Therisanyo Mmemo, Kgomotso Phillip, are alleged to have unlawfully killed one Omphile Mofaladi at White City, Francistown, on or about March 29, 2025. In his ruling, Magetse said granting the child bail does not mark a departure from the law, but rather a deliberate and faithful application of a child protection-driven spirit. He further said the spirit affirms the centrality of the best interests of the child as the guiding principle in all matters, not only where children are complainants, but equally where children are in conflict with the law. Foregoing the above, the child in conflict with the law was granted bail pending committal to the high court per the last court session’s conditions, he added. Earlier on, Magetse said it is customary that, upon being remanded in custody, an accused person is committed to a prison facility situated within reasonable proximity to the court. 'This proximity affords the accused the benefit of remaining within reach of familial support, familiar surroundings, and the broader framework of community life; elements which, though often overlooked, constitute an integral part of both rehabilitation and emotional stability during the pendency of criminal proceedings', he added. However, Magetse said when the accused is a “child in conflict with the law”, as is the case in the instant, the narrative departs significantly from the above-noted norm.

“The instant case brings into sharp focus the infrastructural and systemic deficiencies that persist within our children in conflict with the law justice system deficiencies which, though long-standing, demand renewed national introspection as the number of minors entering the criminal justice system continues to rise,” he added. He added that it is fitting to commence the ruling by drawing a measured yet vivid portrait of the path of the instant child in conflict with the law. Magetse also said the accused has thus far been compelled to travel; a journey which starkly reveals the lived reality of minors navigating a child justice system that remains ill-equipped and insufficiently adapted to the distinct and delicate needs of children in conflict with the law. He indicated that it is deeply concerning that no police holding cells exist specifically for children in conflict with the law, for a justice system that proudly proclaims the best interests of the child. As a result, Magetse stated that when a child in conflict with the law is arrested, as occurred in the present matter, there is a significant risk that he will be detained alongside adult offenders during the statutory 48-hour period preceding his initial court appearance.

He indicated that this contradicts the protective principles enshrined in their child protection framework and undermines the very standards they purport to uphold. 'Upon being remanded, the child is not placed in a facility for children in conflict with the law within his locality. Instead, he is transported to Moshupa Boys Prison; the only correctional institution in the country designated for underage boys,” he added. According to Magetse, the correctional institution is situated approximately 500 kilometers from Francistown, hence separating the child from his family, his school, his assigned social worker, and crucially, from the court seized with his matter. He further said what ought to serve as a measured and rehabilitative intervention is thus transformed into a prolonged and disorienting journey marked by isolation, emotional disruption, and systemic disconnect. In cases like the instant, murder, where investigations often extend over prolonged periods while the child remains in custody, the situation becomes more complex, he added. He shared that the child would be required to travel between Moshupa and Francistown every few weeks for court appearances, arriving the day before the hearing and returning the day after. Magetse stated that Francistown does not have a facility equipped to accommodate minors, thereby compelling the state to improvise custodial arrangements with each appearance. He indicated that the approach results in a pattern of instability that places both the child and the justice system at risk, introducing logistical challenges, legal uncertainty, and exposing potential breaches of child protection obligations. Additionally, he said the decision to grant bail is not anchored in sentiment or mere compassion, but rather in the recognition of a profound structural misalignment between the rising number of children entering the criminal justice system and the static, ill-equipped state of the custodial infrastructure.

He hoped that this case would prompt both society and the justice sector to reflect and question whether their current child protection systems, particularly relating to children in conflict with the law, uphold the best interests of the child and align with the progressive justice ideals to which Botswana has solemnly pledged itself. Furthermore, he said the minor attorney's concern is that the subject child in conflict with the law is in Form Five and if remanded, he was going to miss exams, thus dooming his life. He was impressed that his team was fully aware of the concerns at hand and adopted a solution-driven approach in this case. The theme of their argument was that the child in conflict has to go back to school at all costs, he added. He noted the deeply appreciated opposition to the granting of bail expressed by the deceased’s family. “As part of the healing process, it is my sincere hope that they will find meaning in participating in these proceedings, and that the state will provide them with the necessary counseling and support to help them understand the criminal justice process,” he added.

Magetse emphasised that going against their wishes does not, in any way, signify a disregard for their input. Additionally, he highlighted that the denial and/or granting of bail to an accused person does not, in itself, amount to the delivery of justice. He stated that their collective focus as a society should shift from the question of bail to the imperative of ensuring that matters are heard and concluded expeditiously. 'It is only upon the delivery of judgment that one can truly say justice has been served'. The matter will be back in court on April 29, 2025, for a status update.