Justice delayed is justice denied

Kgosietsile Ngakaagae | Friday May 19, 2017 12:27

It’s a grand occasion not unlike Prince William’s wedding. I cannot remember if the soldiers bring their white horses but I know they bring their feathered helmets, guns and bayonets. The occasion is graced by the first citizen, chiefs, ministers and just about any other pretender to high office. Beneath a snowy horsehair-wig, His Lordship reminds the nation of the Jurassic backlog of cases clogging the judicial pipework and how the plumbers are at work to address the situation. It is nothing new. Just last year’s speech entered through another door. It is made to a throng of sleepy attorneys, confounded clergy, dejected magistrates and fatigued, well dressed High court staff and it is forgotten by the lunch hour, if not before. When I joined the profession, lawyers would wake up to an impressive array of spirits at state expense. One day, some members of the LLB class of 2001 exceeded the prescribed limit and were seen parading the High Court grounds some wearing Barbara Mogae’s VIP name tag. Someone decided that no University of Botswana (UB) student would ever be happy at state expense.

Senior lawyers generally disregard the event. It has become pretty routine unless you are going to support the Law Society president in his yearly mock charge over the appointment of judges. The justice system ill-deserves the romp and pomp. Beneath the grandeur is a pitiable state of affairs. A former Police Commissioner once remarked that the system had collapsed. He wasn’t far from the truth. Hardly anything moves.

It is not entirely the judges’ fault. That is not to say that some are not to blame. And I do not suggest that as the bar, we are in the clear. I merely say that if you have a case registered today, you can as well hope for a hearing date after mid next year. If you haven’t been delivered from bad luck, your judge may just be decommissioned for misconduct in which case the system effectively consigns you to the archives.

Many judges work very hard. Many magistrates too. Like everyone, they have only so many weeks in a year. Forget the ornamental claims that garnish court entrances about turnaround times. It is all empty rhetoric. Of course, they won’t admit it. They may even be incensed that I said it. It’s the judiciary that said that “justice is not a cloistered virtue” and that “the path of criticism is a public way”. I tender no apology. The justice system has run out of ideas on how to deal with the backlog. Judges and magistrates diaries go as far as next year June. If you are a criminal case appellant, you will likely argue your appeal after serving sentence. It virtually takes a century to type a case record, another to put your matter on the High Court roll, another to be heard, and another to receive a ruling. Good luck securing a date with the Court of Appeal.

I do not mean to pick on the High Court and Magistrates. They enroll cases fairly quickly, often within weeks. At the Industrial court (the Gaborone division) cases are enrolled well after two or three years of registration. By that time, you are contemplating genocide. Once the case has been roll called, however, progress is fairly good with the Industrial Court. Much better than their counterparts in Santa Claus gear.

It’s a different case with the customary courts. The chief knows your mother and your father. He may even be your distant uncle. There is no clap-trap about you being the breadwinner for imaginary orphans and having to round up stray cattle because your father is partially blind. You are arraigned at three o’ clock and you are safely in the slammer at five thirty. Literally. When I was a prosecutor Attorney Rantao and I did a case concerning the theft of a donkey someplace. His client’s lunch was interrupted by a call to the kgotla to answer to what he considered to be a civil dispute over a donkey. His dinner was at state expense.

Then you have the DPP’s office. Even as the justice system groans beneath the caseload, the prosecution office and its auxiliary, the BPS, are funneling everything into it. Sit in any magistrate’s court on any morning and you will understand. The poor magistrates deal with anything from murder to use of insulting language.

We need, as a matter of urgency, to develop a comprehensive framework for alternative dispute resolution, plea bargaining and alternative sentencing. The judiciary, in particular, cannot handle anything and everything. But before we go there, all criminal three years or older, registered and unregistered, involving non-serious crimes should be flushed out of the pipework except where responsibility for delay can be placed on the accused. The perception that the DPP must necessarily prosecute every complaint must fall. The current situation cannot be solved solely by hiring more judges and magistrates. A decisive approach is necessary. Alternatively, we can hive off three quarters of the judicial case-load to the customary courts. The load would have vanished by next week with a library of cryptic records to show and a fully reversible, 100% conviction rate.

kgosi.feeback@gmail.com