Customary Courts must explain people's legal rights - CCA

KOPANO OLESITSE
Correspondent | Friday February 25, 2011 00:00

 

'At times they bring forth complaints that they have been denied the right to legal representation and so we at times realise that the Customary Courts do not inform the complainants of their rights as enshrined in both the Customary Court Act and the Constitution of Botswana,' stated Kgosi Masunga

He said that Section 15 of the customary court states that the customary can administer the customary law and the provisions of the written law which those  courts may be authorised to administer. He said that in administering the written law, customary courts shall give effect to section 10 of the constitution of Botswana, which calls for the right to legal representation that is afforded to all Batswana.

'So this means that section 10 of the constitution must be red together with section 32 of the customary court act.Section 10 sub-section 1 of the constitution of Botswana says that the cases must have a fair hearing within a reasonable time. Section 10 sub-section 2 states that in a criminal case, a person must be presumed innocent until proven guilty. Also it states that a person must be informed as soon as practicable in a language that they understand and must also be afforded adequate time and facilities to prepare for the case,' outlined Kgosi Masunga.

He added that Section 10 of the constitution also states that any person shall be permitted to defend himself or herself in court in person or at his own expense by a legal representation.

'But section 32 of the customary court states that no advocate or attorney shall have a right of audience in the customary court. So this means that section 10 of the constitution must be red with section 32c of the customary court act to offer people a fair hearing. The customary courts will always transfer some cases to other courts such as the Magistrates' courts or other courts as they may be suitable to adjudicate over those cases,'   explained  Masunga.

Meanwhile, Roger Calendar, a legal practitioner from Calendar Attorneys stated that at times the customary courts may overlook the legal fraternity: 'At times members of the public experience a miscarriage of justice from the customary courts. Customary courts must be fair and balanced. Also the law of prescription is not applied in customary courts whereby you can lodge your complaint after some years. There are of course cases, which are suitable for customary courts such as damages, inheritance and marriage wrecking.  Also we need customary courts, especially in villages,' said Calendar.

He said that the reason why most cases from the customary courts are often being overturned by the Customary Court of Appeal is that they are often not properly prosecuted.  'This is normally caused by the fact that the customary court presiding officers often do not have the relevant qualifications in the area of law.

However, Matilda Sibanda (58) stated that the customary courts are fine: 'But their judgments are not satisfactory at times.  I think they must give us more time to present our cases. I have launched an appeal with the CCA that was successful after the lower customary court ruled that I give everything that acquired  including a shop and car with my late husband to my daughter.'