Attorney General speaks

ATHALIAH MOLOKOMME | Friday February 8, 2008 00:00

* In doing so, allow me to begin by adding my voice to the fitting tribute you have paid to the President Festus Mogae, who is gracing the occasion for the last time in his capacity as Head of State. Permit me to add just one more item to what I know is an already long list of achievements that will become his legacy. Under your stewardship, this country has made enormous strides towards the achievement of gender equality as guaranteed in our constitution. You have appointed increasing numbers of women to key decision making positions in the public service, and the judiciary. The evidence is here this morning in this court, for all to see: up on the bench, where I stand  and in the magistracy. On this note, I would like to congratulate Justice Anna Raisibe Mathiba, on her appointment as judge of the Industrial Court.

* On the important subject of the separation of powers, I could not agree with your Lordship more that the three arms of government are meant by the constitution to perform different functions, and that each should balance the work of the other two to prevent abuse. During the course of last year, I had the occasion to advise Government and publicly express myunderstanding of this concept during the debate around the privatisation of the national airline. I reminded the nation that, and I quote: 'It must be understood that none of these organs is supreme over the other; each is supreme in its own sphere of operation. The doctrine of the separation of powers must be understood in the context of the supremacy of the Constitution. The concept of the supremacy of the Constitution obliges all the three branches of government to operate in accordance with the Constitution. In other words, none of these branches is at liberty to operate outside its sphere of ration...there may be overlaps between the functions of the various branches of government; some real, and others perceived. It is equally clear however that in practice, the three branches of government need to coexist with one another, and work out a complementary and constructive relationship'. I repeat this here, in open court My Lord, because it is a basic tenet of our constitutional dispensation. As lawyers and officers of the court, we must advise on such concepts truthfully, sincerely, without fear or favour, inside and outside court, and irrespective of our personal views on the particular subject matter under discussion. While we enjoy freedom of association and expression, we must eschew litigating in the media, leaking court documents to unauthorized persons, otherwise we undermine our own profession and the public's confidence in the justice system. 

* That said, it is pleasing to see - thanks to the commitment and excellent collaboration between executive and the judiciary at the highest levels- that progress is being made in the delivery of the infrastructural projects to which His Lordship referred. We look forward with similar enthusiasm to the day when the High Court and Court of Appeal buildings will occupy their proper place in the skyline of Gaborone's central business district.

* As you acknowledge in your remarks, Chief Justice, palatial buildings and an independent judiciary are not all that is required to deliver justice effectively. The courts require adequate and qualified human resources, as well as modern systems that will ensure that they act with speed and efficiency. The quantitative human resource constraints to which you refer are real, but there is also a qualitative challenge, which I believe applies to varying degrees, in the legal profession as a whole.

* In the case of our Chambers, while we are able to attract fresh university graduates into the lower ranks of state counsel, once they have acquired some experience, and maybe a masters degree (at government expense), they leave for what they perceive to be the greener pastures of the private sector. The result is that in the ever increasing pressure of workgenerated by our dynamic economy, there is a heavy workload on the remaining staff. Unlike a private law firm which can turn down clients when they are too busy, the Government law firm has no choice but to attend to the needs of its sole client.

*l This situation is especially acute in our civil division, where our human resources are really stretched beyond capacity. Since my last speech, five attorneys in the Civil Litigation Division resigned their posts to join the private sector. Staff retention in the DPP is not any better, with at least 6 staff having resigned during 2007, undermining some of the gains on which I reported last the year.

* It is in this context that I appeal to your Lordship and Judges to bear with us on occasions when officers representing the Attorney General and the DPP may not liver in accordance with your expectations. Many of them are young, inexperienced and overworked, but I hope they demonstrate a readiness to learn, admit and correct their mistakes here in court, as they do in my chambers. 

* This appeal should not, however be interpreted as a tolerance for shoddy work, truancy or sub-standard performance, which will not be tolerated in our chambers. 

10. In the meantime, we are trying to respond to this human resource challenge by briefing external counsel to handle cases of varying complexity. However, outsourcing government legal services in our relatively small legal profession raises difficult questions of ethics and accountability, with which we are grappling. 

* This brings me naturally to the second strategy, in addition to human resources provision, which will improve the delivery of quality legal services to the nation.

This is the development of modern systems and work methods which are conducive to efficiency and productivity. In this regard, allow me to congratulate you, Chief Justice, on the new initiatives you have adopted to address backlogs and delays in the justice system. I am reliably informed that the judicial case management system you have selected works very well in those jurisdictions where it has been adopted. Similarly, the case record management system or CRMS is also an innovative step which I believe reflects international best practice.

* Equally welcome are the revised rules of court, which we are pleased to have participated in drafting. I pledge the full support our Chambers in the implementation of these reform initiatives.

* While on the subject of reforms, allow me Chief Justice, to briefly express a concern that I have in the area of civil procedure. During my address last year, I expressed our appreciation for the speedier and more efficient manner in which the court was processing urgent applications. A disturbing practice is now developing where some attorneys bring matters on urgency and give the opposing party a few hours to appear in Court. It is not unusual to be served with papers in the morning and be expected to appear before Court in the afternoon.

14 While genuinely urgent matters should get the attention they deserve, the practice where parties claim urgency in undeserving cases is extremely prejudicial and is  sometimes calculated to get the other party by surprise. What is of greater concern is that after some colleagues have obtained an order by default, they stop treating the case as urgent and keep on dragging the case.

l. The Government has particularly been seriously disadvantaged by this practice. As we all know the court process has to be served on our Chambers and then we have to seek the relevant Ministry or Department to obtain instructions, with the result that officers knowledgeable in the matter may not be readily available. The result of the new  trend is that important development projects, amounting to millions of Pula, could remain stagnant for unnecessarily long periods of time, associated costs escalate and the projects offshoot the budget.

* It is for this reason that I humbly appeal to Your Lordship and Judges to discourage this practice, so that the court can concentrate on matters that are truly urgent.

* Moving on to the field of criminal justice, the government shares the concerns of your Lordship on the serious crime situation in the country. According to official police reports, during the third quarter of this financial year, the total crime situation showed a modest decrease of 3.21percent. However, the same reports indicate that serious crimes such as murder, rape, defilement, stock theft and motor vehicle theft increased significantly. Of particular concern to the police is the level of the usage of weapons, especially knives, in armed robberies and home invasions. 

* It is cold comfort that 96percent of armed robbery cases are minor in nature, targeting cellular phones and handbags. Still, these invasive and violent crimes greatly undermine the personal security of citizens, and can negatively affect foreign direct investment. They also add to the already long list of cases waiting to be taken to court, which in turn puts more pressure on our already congested prisons.

* It was in response to these concerns that the Minister of Justice, Defence and Security, PTC Skelemani, convened a High Level Consultation for Stakeholders in the Justice System in April 2007, in collaboration with your Lordship and our Chambers. The outcome of the consultation was, as you will recall, the adoption of a concrete action plan identifying short, medium to long term measures to address these challenges. 

* The Minister presented the report of the consultation to the High Level Consultative Council (HLCC), which is chaired by the President and consisting of representatives from the public and private sectors, on 10th November 2007. The High Level Consultative Council endorsed the recommendations of the Consultation and urged the stakeholder representatives to implement them. It is pleasing to see your Lordship leading by example with the reforms that you have instituted, and I urge colleagues to take urgent steps to implement their part of the plan.

* Still on the subject of crime, deaths on our roads also showed a 15 percent increase, and the police have identified general disregard for the traffic laws, overspeeding and drunkenness, irresponsible use of motor vehicles by young drivers, and general lack of road  courtesy as major causes. This is one area where the public can assist the police by acting responsibly. Proposals to amend the Road Traffic Act are currently being processed, which will no doubt include stiffer penalties for traffic defaulters.

* I know that the police have adopted a number of initiatives such as mounting strategic roadblocks, focused patrols, specialized investigation teams and public education on crime prevention. The Minister of Justice, Defence and Security is currently working on proposals to increase the compliment of the judges of the High Court, to better deal with the increasing caseload. Arrangements to ensure that the Court of Appeal is also adequately staffed to hear appeals all year round are also underway.

* On the legislative side, His Lordship will be aware that that the Judges' Pensions Bill was passed by the National Assembly on the 9th August, 2007 and was later published as an Act of Parliament on 12th October, 2007. I am pleased that we have at last joined the rest of the region and the Commonwealth in putting in place unequivocal and reasonable pension provisions for our superior court judges.

* Other legislation of major importance that was passed in 2007 includes the Cybercrime and Computer Related Crimes Act, and the Intelligence and Security Services Act. All in all total of 21 Bills, 22 Acts and 87 Statutory Instruments, as well as 681 Government Notices were published during 2007.

* A draft Legal Practitioners Bill was sent to the Law Society on 6th June 2007, and we look forward to their comments. A speculative draft Electronic Records (Evidence) Bill has also been prepared.

* Regarding the small claims courts, I am pleased to inform your lordship that Cabinet has, at the request of the Minister, indeed approved the drafting of a Bill establishing these courts, along the lines you have proposed. I can also confirm that our drafting division is currently seized with this task, and that we are treating it with the urgency it deserves.

* In execution of our role as custodian of the statute book, the 2007 Volume of the Botswana Statute Law has been submitted for printing. The fourth Law Revision Order updating the Laws of Botswana up to 31 December 2006 was also published on 3rd July 2007 and the fifth Law Revision Order updating the Laws up to 31 December 2007 is expected sometime in June this year.

* The Consolidated Index of the Botswana Law Reports 1964-2005 had to be withdrawn because of the number of errors in the text. It will, however, soon be replaced by the Consolidated Index 1964-2006 which is expected to be published by April this year. The second volume of the 2006 Botswana Law Reports has now been published, and the first volume of the 2007 Botswana Law Reports is expected to be published in February 2008.

* As a further development to the publication of the CD-Rom version of the Laws of Botswana and Botswana Law Reports, our Chambers have embarked on an E-laws project through which all legislation and law reports, including unreported judgments will be available online. Access to this resource will initially be limited to the Government Data Network during the pilot phase. In due course it will be opened to the public with some of the products freely-accessible, while other products will be available on a subscription basis through a link to the E-Gazette, which will have an online  purchase option. We are excited about this project, which will put us on the information superhighway, and facilitate easy online access to our legal resources for members of the profession, students and the public at large. An important aspect of our mandate as principal legal advisor to the government is to draft, advise on and negotiate international and commercial agreements on the behalf of the Government. We have in the past year been involved in assisting various Government ministries and departments in the negotiation of numerous commercial, regional and international agreements. These include critical trade agreements such as the SADC-EU Economic Partnership Agreement, which is important as it allows us continued preferential access to the EU market.

* Still on the international side, we have been involved in representing the country and sometimes litigating before international treaty bodies such as the African Commission on Human and Peoples Rights Commission. As a nation, we need to prepare ourselves to participate in and shape debates in at the global level, and compete for posts in these various institutions.

* On this note, I wish to congratulate our very own Sanji Monageng, former Executive Secretary of the Law Society, and Judge of the High Court of the Gambia, on her election as Chairperson of the African Commission on Human and People's Rights.

In the same vein, we are proud that Dr Ntanda Nsereko, until recently Professor of Law at the University of Botswana, has been appointed to the International Criminal Court.

* Clearly, the process of globalisation has raised new issues and placed new demands on all nations to which they must respond. We need to skill ourselves in the more intricate emerging areas of the law, new generation issues such as Intellectual Property, Competition Law, Environmental Law, as well as on issues of Mining law and Energy Law. We therefore need to build capacity in these new areas to ensure that we do not get left behind.

* With the reforms that are being instituted in the Administration of Justice, ongoing training at our Chambers and other parts of the civil service, I am confident that we have begun the task of addressing these challenges.

I invite our counterparts in the private sector to also invest in specialized training for the development of our profession.