AG’s address – legal year opening

SHARE   |   Sunday, 15 February 2015   |   By Athaliah Molokomme
Molokomme Molokomme
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Allow me to begin by joining you in paying tribute to our departed judicial luminary, the Honourable Mr Justice Mukwesu Nganunu, former Chief Justice of Botswana.  The memorial service you held in his honour on 7 August 2014 here, and your naming of one of the conference rooms on the second floor in his memory, was most fitting indeed.  Both he and the late Mr Moatlhodi Marumo, former judge of this Court, will be remembered for their contribution to the development of the jurisprudence of this country.
May I also congratulate my learned friend, Mr Lawrence Lecha on his re-election as Chairperson of the Law Society, and encourage him and his team to continue the healthy dialogue they have started with your Lordship and other justice stakeholders. We can only grow and mature as a profession worthy of being taken seriously if we interact sincerely with each other, and treat each other with respect, even where as lawyers often do, we hold different views.  
I respectfully agree with your Lordship that one of the highlights of 2014, our 11th general elections, were, from the point of view of the legal profession and the judiciary, both successful and eventful.  For the conduct of a general election is indeed a significant constitutional act, and the judiciary occupies a prominent place in this regard.
Section 38 of the Constitution provides that the Chief Justice shall be the returning Officer in the election of the President; the Judicial Service Commission (JSC) is empowered by section 64 of the Constitution to appoint a Delimitation Commission, and section 65 gives a prominent role to the JSC in the appointment of the Independent Electoral Commission. As Principal Legal Advisor to the Government and a member of the JSC, I can confirm that all these functions were well executed by the judiciary, with the firm support of the Government as always.
I concur with your Lordship that the absence of a single election petition is testimony to the good work of the Independent Electoral Commission, which is further reflected in the willingness of candidates to accept the results of the elections.
In this regard I must further thank you and the Judge President of the Court of Appeal for having put everything in place to deal expeditiously with the litigation that followed the general election, which resolved the impasse in the legal position regarding the election of the Vice President, the Speaker and Deputy Speaker, and enabled Parliament to sit after a short delay. It is a great comfort to know that our judiciary is ready, willing and able to rule quickly and decisively whenever there are differing interpretations between stakeholders on the law, especially the Constitution.  I am especially indebted to the Court of Appeal for the guidance they provided in their ground breaking judgment on the interpretation of sections 74, 76 and 89 of the Constitution.  As the highest court in the land, they settled, once and for all, the relationship between the Constitution and the Parliamentary Standing Orders.
I have noted your concerns about the delays in the implementation of development projects in the Administration of Justice, a trend that has been observed in other projects country wide. As you are aware, the matter is being attended to at the highest levels, and it will require collaboration and better communication between stakeholders, including the judiciary, to resolve it.

I am pleased to hear that Judicial Case Management (JCM) is producing the desired results at the High Court, and that case backlogs are a thing of the past. I look forward to the time when JCM has the same positive effect on disposal rates at the Magistrates Courts, especially in Gaborone, where challenges remain. 

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Regarding delays in the delivery of judgments, I am aware that you have personally taken steps to advise those concerned to expedite their delivery. Timeous delivery of written judgments and rulings also avoids the undesirable gap between the oral pronouncement of the decision and the written, signed version, a situation which regrettably sometimes arises, and leads to contestation.
Regarding the Special Court for Corruption cases, I can confirm that the figures you referred to are accurate, and agree that indeed disposal rates can be better. The Corruption unit at the Directorate of Public Prosecutions (DPP) to which I referred in my 2013 address is up and running, and has since committed about 23 cases. We are working with our parent Ministry and Directorate of Public Service Management (DPSM) to increase the staff complement in this unit and the DPP generally, to enable the expeditious disposal of criminal cases.
I have noted the observations of the outgoing dedicated judge for this court, and have consulted the DPP on this matter. He informs me that while there are instances where matters are postponed at the instance of the State, these are not so many as to be a cause for alarm. Reasons for postponement include the location of witnesses who are not resident in Botswana; the non-appearance of accused persons who had not been served with notices of hearing; to enable accused persons to secure the services of an attorney; to allow the parties to meet pursuant to Order 68 of the Rules of the High Court and to comply with the Order; to allow the Registrar to cause the record of proceedings to be served on all the parties; as well as to enable the Registrar to appoint prodeo counsel for the accused. The reasons for postponements are therefore many and varied and such postponements are not always at the behest of the DPP.
Be that as it may, I undertake, as I did in my 2014 address, to use my best endeavors to ensure that all attorneys appearing on behalf of the State in both criminal and civil matters conduct themselves in a manner that is conducive to the efficient disposal of cases. I am aware that in addition to additional staff, we need to adopt the right systems, ensure strict supervision and instill a good work ethic among state attorneys to speed up case disposal rates.

As you are aware, Government lawyers are public servants who often operate under serious resource constraints, especially in the districts. In Palapye for example, our prosecutors had to relocate at short notice from rented offices which were declared uninhabitable for health reasons. Thankfully, our sister department, the Botswana Police Service, came to the rescue and the prosecutors are temporarily accommodated at the palatial police facilities along the A1 highway, for which I sincerely thank the Commissioner of Police.
Despite resource and capacity challenges affecting law enforcement, the police with support from communities and other stakeholders, have managed to reduce crimes of public concern such as break-ins and robberies over the years. The same strategy has been used in addressing other social ills such as increased involvement of youth in crime as well as alcohol and drug abuse. 
Police statistics show that during the year 2014, the Police managed to reduce corporate targeted crimes, that is, break-ins and robberies by 8% as compared to the previous year. Other serious crimes such as rape, stock theft, and threats to kill recorded reductions as well.
The road safety situation has also improved during this period, as road crashes were reduced by 14%. Road fatalities also went down from 411 to 377 (8.3% reduction). Regrettably, as you correctly pointed out earlier Honourable Chief Justice, traffic offences continue to rise, reflecting a disturbing culture of irresponsibility, lack of tolerance and recklessness on the part of some drivers. I am therefore pleased to hear that the special traffic court has started its work, and that specially designed mobile courts are being procured. These are all welcome developments, but I also agree with you that they will not bear fruit unless related functions such as the DPP, the Police and the DCEC are also capacitated. 
A significant development during 2014 that should expedite case disposal is the amendment of the Criminal Procedure and Evidence Act, which allows for the expeditious disposal of certain cases, such as murder cases and corruption cases. The amendment does this by giving the Director of Public Prosecutions the discretion to file such cases with either the magistrates court or the High Court, as the case may be. Previously, it was mandatory for the Director of Public Prosecutions to first file such cases with the magistrates court before being referred to the High Court for trial.
Still in the area of criminal law, the Criminal Procedure and Evidence Act did not previously provide for the admissibility of evidence obtained from forensic procedures. Consequently, the Forensic Procedures Act of 2014 lays down procedures for obtaining forensic material from certain categories of persons, especially those charged with an offence; the use of forensic material for scientific analysis during criminal or other investigations and the establishment of a National DNA database system. The increasing number of child maintenance cases, the large sums of uncollected maintenance payments and the staggering amount in the Guardians Fund to which you refer are indeed a major concern.  I know that our parent Ministry has been in consultations with the Accountant General and suggested ways of improving collection methods.

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Be that as it may, it is my considered view that we should not be having so many maintenance cases in the first place. I appeal to all parents, who are mostly fathers not married to the children’s mother, and who are not supporting their children, to take up their parental responsibilities without reminders and coercion. It is ironic that as you correctly point out, the monthly payments in many cases are much less than the custodian parents’ travel costs to the point of collection. I believe that the time has come to amend the Affiliation Proceedings Act to revisit the minimum amount of P100 per month, which regrettably some judicial officers appear to treat as a standard. 
While on the subject of legislation, a number of pieces of legislation were drafted by the Legislative Drafting Division of our Chambers and passed by the National Assembly during the past legal year.  A total of 30 government bills were tabled in Parliament and 28 were passed into law. Allow me to share those which I believe are of significance.

The Electronic Communications and Transactions Act of 2014, seeks to facilitate commerce using the electronic means of communication, and enables the legal recognition and validation of electronic commercial transactions conducted internally and externally.  Most importantly, it gives electronic signatures the legal equivalence to the handwritten signature.
Related to this, the Electronic Records (Evidence) Act of 2014 provides for the admissibility of records produced by an electronic records system as opposed to only documentary evidence, to be tendered as evidence in legal proceedings.
On the financial intelligence side, a number of complex pieces of legislation were passed in 2014 to make our Financial Intelligence Agency more effective, and to avert the risk of Botswana becoming a safe haven for proceeds of crime.
The Proceeds and Instruments of Crime Act of 2014 retains conviction - based forfeiture and introduces a new regime of civil forfeiture which is not conviction based. The civil forfeiture regime will secure property suspected to be a proceed or instrument of crime - using a lesser burden of proof, that is a balance of probabilities.
Also enacted in 2014 is the Anti-Human Trafficking Act, which provides for the prohibition, prevention and combating of human trafficking and for measures to protect and assist victims of trafficking.
The Counter-Terrorism Act of 2014, as its name suggests, provides for measures to prevent and combat terrorism, as well as providing for terrorism offences, including the financing of terrorism.
Other laws enacted in 2014 include laws that transformed the business models of state owned enterprises to increase the efficiency of the enterprises and make them more competitive.  The Botswana Postal Services (Transition) Act and the National Development Bank (Transition) Act will enable Botswana Post and the National Development Bank respectively, to convert from statutory bodies into companies registered under the Companies Act, and to continue to exist as if they have always been incorporated under the Companies Act. 

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Similarly, the Building Societies (Amendment) Act allows building societies to convert into companies under the Companies Act whilst the Botswana Geoscience Institute Act transformed the Department of Geological Survey from the public service into a Statutory Body with legal personality. 

In relation to financial/fiscal legislation, the Securities Act of 2014 was passed, which deals with the licensing of securities businesses, as well as setting out the requirements of Securities Exchanges and Central Securities Depositories. More importantly, the Act contains detailed provisions to deal with market abuse, including the establishment of the parameters of insider trading and other manipulative and deceptive practices applied to abuse markets.
The principles of civil liability and the distribution of proceeds of successful actions against persons involved in insider trading are useful mechanisms under the Act to combat market abuse. In recognition of this, a civil liability claim can therefore be brought by the Non-Bank Financial Institutions Regulatory Authority against insiders who gain or avoid loss from insider trading.

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A further important piece of fiscal legislation which was passed into law in 2014 was the Retirement Funds Act. The Act repealed and re-enacted the Pensions and Provident Funds Act, but also additionally provided for other forms of retirement funds, other than pension and provident funds. The Act also provides a framework that explicitly lays out the governance of administrators of funds and provides for the licensing of funds, the financial requirements of a fund, as well as the termination, winding up, amalgamation and transfer of funds.
The common connection or link between the two pieces of fiscal legislation I have mentioned, is that it is the Non-Bank Financial Institutions Regulatory Authority established under the Non-Bank Financial Institutions Regulatory Authority Act which may issue the licences required by the two pieces of legislation. The NBFIRA therefore can be said to act as an “oversight authority” for this purpose.  
With regard to land issues, the Land Tribunal Act of 2014 extended the mandate of the Land Tribunal to all land tenures.  The Land Tribunal used to be established by Statutory Instrument under the Tribal Land Act to hear appeals from land boards and with regard to tribal land only.  The Land Tribunal Act 2014 continues the establishment of the Land Tribunal by Act of Parliament, and broadens its mandate such that the Land Tribunal will hear appeals arising from the Tribal Land Act and planning appeals arising from the Town and Country Planning Act.

In the area of family law, a significant development to be noted is the Married Persons Property (Amendment) Act of 2014, which has introduced provisions to enable spouses, after the solemnisation of their marriage, to change the property regime they had opted for. The change has to be done within the given safeguards, so as to ensure that, among others, third parties are not prejudiced. The Act also allows for the introduction of a Form as proof for an out of community of property regime, which was previously not provided for.  Further, in response to errors that had occurred previously, the Act allows for a number of marriage instruments that had not been registered with the Deeds Registry, and are therefore not valid, to be registered. 
I went into some detail on legislation this time because as I am sure you will agree, these are indeed, both significant and welcome developments in our jurisprudence. They will surely facilitate the transformation of our economy and society into a truly modern and vibrant one. For this I wish to commend the Legislative Drafting Division of my Chambers, who labour quietly away from the limelight and drama of courtrooms and Parliament, to produce these complex, high quality statutes, often under immense pressure.

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As you are aware, the mandate of the Attorney General includes the revision of laws of Botswana in accordance with the Revision of the Laws Act.  So far, a revision of the Laws of Botswana has been conducted annually, the most recent update being the Law Revision Order 2014, published on 13th October 2014 as Statutory Instrument No. 116 of 2014, updating laws of Botswana as at December, 2013.  We are expecting the Law Revision Order updating the laws up to December 2014 around the middle of 2015.

A tender for a comprehensive revision of the laws of Botswana has been floated and will hopefully be awarded in the first quarter of 2015.  The yearly update of the laws will be done simultaneously, and the exercise is expected to be completed in three years time.

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I am pleased that the long outstanding transfer of the law reporting function to the Administration of Justice was effected during the 2014 legal year, although we continue to provide support, including the services of a seconded officer. We remain at the disposal of the Administration of Justice should any further support be required, subject, as always, to the availability of resources. As an African proverb goes, in winter, a poor man can only stretch his long legs according to the length of his blanket. Needless to say all our blankest are rather short at the moment, irrespective of the length of our legs. While on the subject of resources, I am sure that the Honourable Ministers of Ministry of Defence, Justice and Security and of Finance and Development Planning have noted your desire for the judiciary to enjoy a degree of financial and institutional independence.  I am sure they look forward to the recommendations of the comparative study to which you refer.

Before I conclude my address, I would like to touch upon two issues concerning the need for continuing reform and improvement of our legal system and the tools with which our work is done. Firstly, the question of the procurement by Government of legal services from private legal firms. In terms of Section 51 (3) of the Constitution, the Attorney General is the principal legal adviser to the Government of Botswana. It follows that any request to outsource legal services for Government must take place through the Attorney General’s Chambers. It is also common cause that any procurement by Government of goods and services is regulated by legislation.

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Whilst the AGC generally has the requisite capacity to provide basic legal services to Government, it is nevertheless under ever increasing pressure to discharge its mandate within tight resource constraints. Specifically, AGC has insufficient senior lawyers equipped with expertise to meet all the demands it is obliged to service. Hence I have for some time been exploring the manner in which my chambers can systematically procure services from private legal practitioners who are experienced in certain particular practice areas, in the normal course, and not only in emergencies.

I have for some time been aware of perceptions in some quarters of selectivity in so far as the outsourcing of legal and or consultancy services from private legal firms is concerned. I assure you, my Lord, that there is no substance in any such perceptions, which may arise from the inability by some to appreciate that conventional procurement by public tender often fails to meet the requirements of the government law firm.

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Against this background, my Chambers have completed the design and development of a framework for the outsourcing of legal services for Government, which we expect to be endorsed by our stakeholders, for implementation in the 2015/2016 financial year.
The second development which I wish to share is that recently Cabinet approved the Doing Business Reform Roadmap for Botswana, which contains a section on the enforcement of contracts, an area where Botswana has been found wanting. Specific areas of relevance to the Administration of Justice covered in the recommendations are deadlines for court procedures, specialised Judges for commercial disputes and the introduction of computerised case management systems.

As your Lordship has pointed out, some of these interventions, such as the Judicial Case Management System, are already in place. However, I respectfully submit that a great deal more could be done by us in the justice sector to facilitate improvements to the business environment in this country.
Finally, a brief update on legal aid. As I reported in my 2014 address, The Legal Aid Act and Legal Practitioners (Amendment) Act were enacted in 2013, and assented to by His Excellency the same year. The Legal Aid Act was brought into operation on 1st January 2015, making Legal Aid Botswana an independent public entity. A Board has been appointed, and the regulations will be published shortly. In the meantime, service delivery at Legal Aid Botswana continues unabated.  As at 31st December 2014, ten thousand five hundred and seventy six (10,576) indigent clients had already been assisted with a variety of legal problems. Land matters and family law cases each constitute about a third of the work of Legal Aid Botswana. Other common matters dealt with include land disputes, contractual cases, damages claims, industrial matters, wills and estates.

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During 2014 Legal Aid Botswana undertook various initiatives to make its services known to Batswana including kgotla meetings, the distribution of pamphlets in English and Setswana, and a travelling road show. Work is also proceeding on a mobi-site, which is a website accessible on an entry level smartphone without using excessive data. In the near future, qualifying citizens can access the services offered electronically and will be able to request assistance by SMS.
Subject to the procurement of suitable accommodation in 2015/2016, Legal Aid Botswana aims to move out of our offices in Gaborone and Francistown to its own offices, and to establish offices in Maun, Tsabong and Kasane. I must say that it is a source of immense pride for me and my team that what was conceived as a pilot project co-sponsored by UNDP and the Government of Botswana in 2011 has become a fully fledged statutory body that will from next financial year be entirely funded from the national budget.

For this I would like to thank UNDP and most importantly, His Excellency the President, who identified Legal Aid to the indigent as part of his roadmap in 2008. I know that it has taken some years Your Excellency but I am sure you are pleased that after a long labour, the bouncing baby has not only been delivered, it has grown into a healthy toddler that is now walking confidently and delivering legal services to the most needy Batswana. On that very productive note, the time has come for me to do what I am here to do, that is, move the commencement of the 2015 legal year. I move accordingly your Lordship, and wish all legal practitioners a professionally fulfilling, and needless to say, a profitable legal year. I thank you most sincerely for your indulgence.

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Part of Attorney General Athaliah Molokomme’s address at the opening of the Legal Year



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