Honourable Mokgware, Customary Courts are courts of injustice
Owen Nsala | Wednesday October 25, 2017 14:13
Honourable Pius Mokgware suggests that Parliament must pass a law that would oust the Magistrate’s Courts as courts of first instance from entertaining stock theft cases.
I really got worried at that suggestion. To suggest on any given day that Customary Courts are better placed than any court to entertain stock theft cases is in my view a distortion of reality. To suggest that men and women not trained in the school of law and some not having had a date with formal education are better placed to interpret the penal code and criminal procedure and evidence Act than those that possess the required legal qualification to sit on the bench as Magistrates and judges is nothing more than a joke. The sad truth is that Customary Courts are not courts of justice if we take the literal meaning of justice with its crudeness. Conversely put, those tasked with delivering justice at Customary Courts do not meet the requisite standard and test of proper adjudicators.
Customary courts are manned by Chiefs whose only qualification to sit at the Kgotla is bloodline. That is all it requires. No qualification in law is a requirement.
As long as you were born in the royal house and you are next in line, you assume the responsibilities of a Chief. Thereafter the Chief, whose educational background and credentials matter less, adjudicates on criminal cases and applies the Penal Code and the Criminal Procedure and Evidence Act. Without any training, one can imagine, if some who went to law school struggle with the interpretation of the Criminal Procedure and Evidence Act, what more of one who only got to meet the legal instrument on duty. Honourable Mokgware seems to proceed on the basis that Customary Courts are more efficient than Magistrate Courts and provide a breeding and conducive environment for an increase on convictions. He posits that those tried at Magistrate Courts seem to get away with aquitals on account of mere technicalities and lawyering. Therein lies the problem. Customary Courts will of cause convict those accused of stock theft simply because to them, process and procedure matters less.
An accused person's rights to a fair trial are the least of Customary Courts concerns. Imagine being arrested today, being tried tomorrow and sentenced to a prison term of seven years the day after conviction. No witness statements to prepare for trial and very little to no investigations by the Police who would proceed on confessions made before them and never recorded by a judicial officer. Is that justice?.
Honourable Pius Mokgware clearly demonstrates that as a legislator he has deliberately refused to make a date with, and study the Constitution.
He seeks to propose a law that would flout and trample upon the Constitution at first reading. Instead of advocating for and upholding the Constitution as he so took oath, Honourable Mokgware seeks to go against the oath he so took. You see, in terms of the Constitution and more particularly Section 10 thereof, every accused person has a right to legal representation. That is a Constitutional right granted to every single person appearing before a court at a charge, criminal of course and emanating from the State. The provision is couched in no uncertain terms and dictates that no matter the offence, we all are entitled to legal representation. The reality of it is that as it is, lawyers do not have audience before Customary Courts and rightfully so. How do they appear before people not trained in law and argue law? It would be a fruitless exercise.
Instead of decrying the inefficiency of the Magistrate Court, Honourable Mokgware must advocate for a capacitated and well-resourced professional at the Directorate of Public Prosecutions trained enough in stock theft to deal with defence attorneys who seem to irk Rre Mokgware each time a stock theft accused person walks free.
The days of police officers prosecuting against trained lawyers must end.
I must admit I became very anxious when Honourable Mokgware made the statement without holding back. I began to wonder whether those that sit at Parliament have the necessary tools and training to sit over and debate amendments of laws and introduction of bills.
Law making is a very onerous task since the laws as passed affect the day-to-day running of society and therefore the laws need to be just and accommodative to society. It was then that I figured that the problem maybe lies on our very own Constitution. In terms of our Constitution, for one to sit in Parliament as a Legislator the minimum requirement, age aside, is that one must be able to speak and read English well enough to participate in the on goings of Parliament.
Maybe it is time the bar is set a bit higher and further add qualifications necessary to qualify to become a Member of Parliament. I however must not be understood to suggest that Honourable Pius Mokgware is not cut for the job as a Member of Parliament. He only had an off day and was, I assume, like many farmers worried about the rise in stock theft.