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Dikgosi's powers shrink

SHARE   |   Sunday, 28 June 2015   |   By Keitebe Kgosikebatho

The establishment of a Sentencing Council of Botswana will be a giant leap forward in the delivery of justice, as it will curb incidents of miscarriage of justice where some illiterate dikgosi impose hefty custodial sentences or even capital punishment for minor offences. Needless to say, the Council will further reduce dikgos'si powers, KEITEBE KGOSIKEBATHO reports.
Some members of Ntlo ya Dikgosi have expressed suspicion and worry that the establishment of a sentencing council for Botswana is just another tool to curtail their powers and reduce them into just ceremonial figures.
Dikgosi raised the concerns after the Ministry of Defence, Justice and Security made a presentation to them during the week informing them of a proposal to have legislation establishing  a sentencing council for Botswana and introducing community service as  an alternative  to imprisonment in Botswana. The two presentations were made by representatives from the Ministry of Defence Justice and Security and a legal Consultant from the Commonwealth, Peter Pursglove.
In the document stating  the purposes and functions  of the sentencing council presented before Dikgosi, it is stated that   ‘the sentencing situation  in Botswana is  particularly acute  since many offenders  are sentenced  before the customary courts presided over by persons  with little  or no legal training’, some Dikgosi felt this was clear testimony that the council was being established to sideline them and stand to undermine their authority.
Dikgosi are said to often favor imposing custodial sentences over less harsh sentences like community service or fines. This is said to have led to problematic consequences like overcrowding in prisons.
Although she welcomed the fact that Dikgosi will have representation in the council, Kgosi Mosadi Seboko of Balete pointed out that the representation should be substantial and should reflect the important function and position Bogosi plays in the country’s judicial system. Mosadi warned that should Dikgosi be outnumbered in the council they risk being bullied into indorsing decisions that goes against culture and tradition.
Mosadi gave an example of corporal punishment, saying though a long standing tradition favored and recommended by basic Setswana culture, it was not recognised in common law and most countries were lobbying for its abolishment, thus  she said she would not be surprised if the council also aligned itself to such undertakings.
The Chairman of Ntlo ya Dikgosi, Kgosi Puso Gaborone has also highlighted the need for Dikgosi to be given a plum representation in the council as they handle the bulk of cases which subsequently meant they were responsible for sentencing a majority of the offenders.
Kgosi Oreagetse Machilisa of Boteti region also warned that Dikgosi should be careful when accepting legislation that will clearly affect how they carry out their duties and had suggestions that their powers were being undermined.  Machilisa questioned whether having such a council will not increase the backlog in the number of unprosecuted cases which is already a problem.
Explaining the logistics of the council to Dikgosi, Pursglove said that the sentencing council is going to be a specialist council comprising of the judiciary, dikgosi and other stakeholders within judicial system. He said that there are a number of problems inherent in current sentencing structures and the establishment of a sentencing council may assist  in addressing them.
According to Pursglove generally parliaments have difficulty in formulating policy on the principles that should govern the determination of sentences, hence are unable to reliably control sentencing levels. In situations where parliaments provide little or no legislative guidance with respect to the determination of sentences, he says it is the sentencing judges that largely determine sentencing policy. And ultimately, the sentencing judge must look to the court of appeal for guidance on sentencing. “Courts of  appeal  are not adequately  structured  to make comprehensive sentencing  policy to provide  effective guidance  to trial judges on sentencing,” he said.
The sentencing council he says will also address the perception of inconsistency in sentencing and restore  public confidence in sentencing saying  that  the public do not  understand sentencing  but are quick  to criticize it , particularly in  cases where  sentences are not predictable  and do not reflect   the gravity of the sentence. The sentencing council is expected to provide guidance to sentencers, gather and provide information and statistics for monitoring, planning and policy development and engage the community through informing and consulting with the public.
Sentencing councils proposed for, or already existing in, Commonwealth jurisdiction vary in their size. The size of the council is according to the proposed legislation important as it must be representative; and the greater the size of the council, the more representative it can have. In Botswana it is proposed that in order to balance sufficiency of representation against operational efficiency and credibility, the membership of Botswana Sentencing Council be set at between 10 to 12 members.
The proposed legislation will be presented to the next sitting of parliament.

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