In her address to the opening of the legal year, Attorney General Dr Athalia Molokomme revealed that they are drafting guidelines on government’s engagement of private law firms in litigation.
She said the process is at an advanced stage and will be in operation in the 2015-2016 financial year. In her 10 years at the helm, this is the best thing the AG has done for this country. Indeed, it is never too late to remedy a wrong. We have been following with chagrin, disappointment, and helplessness developments at you’re the Attorney General Chambers, where only one law firm seems to have been unfairly favoured over others. It got worse in the past five years of the current administration of the Five Ds. We hope the AGs Chambers will also consider drafting similar regulations to guide parastatals on the engagement of law firms, either at litigation process or for daily advice. There are many instances where the head of a parastatal, or chief executive officer engages the services of a law firm that also advices the parastatal he/she is heading. An immediate example is the 2009 trial of former managing director of Debswana Diamond Company, the late Louis Nchindo who engaged the services of a law firm that also advised him in his official capacity before he left the company.
But then the state, the AG, has been found wanting in this regard. For years now, there has been a single law firm that has taken up litigation for and against the state. The law firm in question would within a specified period be engaged by the AG to represent the state, while at the same time acting as the President’s legal representative, as it would be for individual ministers and the BDP. This is the law firm which, post the October General Elections was engaged in a High Court case wherein the AG and the Botswana Democratic Party (BDP) president, Ian Khama challenged the Speaker of the National Assembly and all political parties in Parliament, the Umbrella for Democratic Change, the Botswana Congress Party and the BDP, on a voting clause. This is a case that left the public perplexed, not knowing who was fighting whom. Even after loosing against Parliament, the law firm hit the ruling party with a huge legal note. And in the middle of this mess was the AG who many were left wondering who, between the AG and the private law firm, engaged whom. It is our hope that the AG will stipulate the limit for parastatals who wish to can use the services of same law firm. In other words, not more than one parastatal should use the services of a single law firm as it is today. We hope that this can be achieved with the input of the Law Society of Botswana, which has long held a different position as far as government’s engagement of private law firms was concerned. We are fully mindful of the constitutional right of individuals to access legal services of their choice. But it is important for the taxpayer not to be forced to line the pockets of particular individuals or organisations.
In the meantime it would be ideal as the AG is correcting mistakes of the past, for it to review the legislative framework. It may be an opportune time to inform the National Assembly of some statutory instruments that are unconstitutional and repressive, such as the 1960 Sedition law, the National Security Act, and others that have been overtaken by events in this Information Age.
“Nobody can give you freedom. Nobody can give you equality or justice or anything. If you’re a man, you take it.”
- Malcolm X