ADDRESS BY ADVOCATE ABRAHAM M. KEETSHABE ATTORNEY GENERAL OF THE REPUBLIC OF BOTSWANA ON THE OCCASION OF THE CEREMONIAL OPENING OF THE 2023 LEGAL YEAR TUESDAY 07 FEBRUARY 2023

Introduction

I am pleased to have this opportunity to respond to the address of His Lordship the Chief Justice, on this very important day in the legal calendar - the ceremonial opening of the 2023 legal year.

My Lord the Hon. Chief Justice permit me to commence my speech by joining you in acknowledging and recognising the service-above-self by some retired members of the Judiciary. History books have already been written that Hon. Justice Monametsi Steve Gaongalelwe retired in April 2022 as Justice of the Court of Appeal, a legal practitioner of repute who used to appear before me when I was in the magistracy, only for the tables to be turned after he joined the judiciary and I would appear before him.

We recognise with admiration the service that Judge Abednego Tafa, who retired on the 31st August 2022, provided to this country, serving in the Attorney General’s Chambers up to the level of Deputy Attorney General, and also as a private practitioner of note before joining the Judiciary.

We wish them well and may the Lord our God continue to bless them.

Justice Johan Froneman and Justice Baaitse Elizabeth Nkabinde have been appointed as non-resident Justices of the Court of Appeal.

In August 2022 Justice Goemekgabo Loeto Tebogo-Maruping was appointed to the Court of Appeal from the Industrial Court. Just like his predecessor, the late Justice Legwaila, we believe that his appointment will enrich and broaden experience in the Court of Appeal bench.

Straight from the magistracy, we welcome Hon. Judge Masilo Mathaka and Hon. Judge Taboka Slave as judges of the High Court. We recognise the appointment of Dr. Goodwill Makofi, also from the magistracy, as a Judge of the Industrial Court. We also welcome former Registrar of the Industrial Court, Hon Judge Anna Mphetlhe as Judge of the Industrial Court.

I congratulate each one and wish them well in their career as they steer the justice ship through the often troubled and unstable waters.

A special welcome to the new Chairperson of the Law Society of Botswana, Mr Osego Garebamono.

I sincerely congratulate you and wish you success in this assignment.

Creation of New Ministry of Justice

In the exercise of his executive powers, His Excellency the President has created the Ministry of Justice. This is a first for Botswana. And for this, His Excellency the President should be truly commended. This is another major milestone in projecting the independence of the Judiciary. And the corollary of this is that history has been made as the country now has Hon. Machana Ronald Shamukuni as the first Botswana Minister of Justice. Congratulations are in order, Sir. The other side of the coin, Hon. Minister, is that this responsibility is onerous and heavier than any human being may imagine. Seek therefore the light of the Almighty so that you may walk in his path.

Covid-19 Pandemic

The Covid-19 pandemic has come. It has not gone. But this is a chapter in our life that we would like to swiftly close. In our generation, we have never seen anything like this. Classified now as survivors, we really should count our blessings, and also make our blessings count, by each doing more to improve our life.

We should be proud as a nation that we did not allow Covid-19 to interfere with the legal rights and privileges of anyone. The Constitution and the judicial system in particular, remained fully functional and citizens were allowed to claim their rights.

In this sense, in so far as the judicial system is concerned, the pandemic clearly did not act as a novus actus interveniens (a new intervening act) in the rights of our people. Whilst here, I would like to pause and remind the nation that legally, time was always running during the pandemic and hiding behind the pandemic is legally no excuse. An established principle of law is that vigilantibus non dormientibus iura subveniunt – the law will aid only those who are vigilant, not those who sleep on their rights.

While we work very hard to exit the pandemic, we should understand that it is our health that makes our wealth and not our wealth that makes our health. In this regard, I stand here to pronounce the readiness of the Chambers to draft and generate any legislation or statutory instrument that may be required in the quest to promote the health of our people as we exit the pandemic.

University of Botswana

On 20/10/2022, we witnessed the University of Botswana (UB) 40th anniversary and graduation ceremony. Three (3) exemplary lawyers, Ian Kirby, David Magang, Sanji Monageng and a remarkable politician, Michael Dingake were each awarded an appropriate Honorary Doctorate Degree. While I congratulate each recipient, I must, in the most sincere terms, recognise and applaud the UB under the leadership of Prof. Norris for keeping the eye on the ball, as well as playing a significant role in the promotion and recognition of true statesmanship. Not one person can ever doubt the historical weight and significance of this indelible step by the UB. If we do not recognise our own, who will?

The Attorney General’s Chambers and other key stakeholders took part in the process of revamping the L.L.B Degree syllabus. The UB has now introduced relevant and contemporary subjects with the ultimate aim of conferring graduates with the LL.B (Honours) degree. We commend the UB and in particular, the Law Department for this. The introduction of Legislative Drafting is most appreciated. We have no doubt that lawyers who go through this programme will be fit for purpose and ripe for the market.

Peace

I would like to appeal to Batswana to cherish and preserve the peace that we have in this country. Elsewhere, people do not enjoy this peace. The Global Peace Index (GPI) ranks us amongst the world’s most peaceful countries with a score of 1.801 out of 5 points, sitting at number 48 out of 163 countries. The principle is that the lower the score the more peaceful the country is. There is obviously plenty of room for improvement.

New Wave of Crime

Crime is a stain on this peace, and we should see it as such. Therefore, the justice system, as the institution of last resort, should respond to the current wave of unusual and indeed very strange crime. I have no intention whatsoever of even attempting to ponder over the root cause of this.

What we all notice however, is that as we emerge from the pandemic, some of us are angry - and that anger translates into wanton disregard and destruction of human life and property. The entire justice system therefore is being indicted to respond appropriately to this wave of crime. As a nation, we are agreed that we cannot become prisoners in our own country. We are known to be a nation that is slow to anger and quick to quell unbecoming behaviour.

On a related matter, there is a new phenomenon of recklessness by some of us with what they say; they are loose-tongued, and are without a filter when they speak. Granted, a tongue is a powerful tool of communicating and sending across messages. Lawyers are too familiar with this. The reverse side is that a tongue is a dangerous weapon. In this regard, I can do no better than quote from the Bible:

“Even so the tongue is a little member and boasts great things. See how great a forest a little fire kindles! And the tongue is a fire, a world of iniquity. The tongue is so set among our members that it defiles the whole body, and sets on fire the course of nature; and it is set on fire by hell.” (James 3:5-6 NKJV).

There is an unfortunate amount of litigation on account of what we say and what happens as a result of what we say. I call upon the nation to exercise self restraint. We can do it even if anyone thinks that we cannot.

Cross Roads

As we emerge from the Covid-19 pandemic, we should pick up the pieces. Many a times I hear an elderly statesperson lamenting that we should go back to the cross roads. In the midst of storms that we are going through as a result of the pandemic, I would like to join and support the call to go back to the cross roads and reset. I am inspired by the biblical message that:

“Stand in the ways and see,
And ask for the old paths, where the good way is,
And walk in it;
Then you will find rest for your souls.”
(Jeremiah 6:16 NKJV).

There are many ways of going back to the cross roads. The mind set change is a priority in His Excellency the President’s reset agenda. It is one such. Resetting and retuning our minds is a sure way of going back to the cross roads.

Backlog

My Lord the Honourable Chief Justice, the single most important challenge in the justice sector is the incessant backlog of cases. The stubbornness of the backlog of cases is such that we are beginning to deal with it as if it is normal. The truth is that backlog is a project and should be dealt with as such. It should have a life cycle – the beginning and the end. The failure to deal effectively with the backlog of cases results in more cases coming into the system, more crime being committed, spurious shortage of resources, and ultimately it may appear as if we are losing grip on enforcement of law and order at national level. I would like to appeal to judicial officers at all levels, to do more with less and drive the crusade against the backlog. Similarly, I appeal to all legal practitioners to assist in this regard. Imagine what would happen to crime, businesses, investor confidence and peace and stability if court cases were heard and concluded in a period of only three (3) months.

There are many factors that contribute to delays in the conclusion of cases. I do not wish to detour in that direction. Of great concern is where the presiding officer leaves office, or station, before completion of some cases. This, in many instances, results in the affected cases having no or little progress for an unusually long time. This situation is certainly prejudicial to the litigants. As it has often been said, justice is sweetest when freshest and justice delayed is justice denied.

Bail

Flowing from the above, I would like to briefly comment on the issue of bail. Bail is a never ending story. It is upon us, in this courtroom, to end the story and bring more confidence and trust into the system. The courts are inundated with bail applications. I see bail as a complete distraction. As I have said before, bail isn’t the problem. The problem is the backlog of cases, and because we are not disposing of our cases in a timely manner, the system gets clogged.

I do not wish to give a lecture on the law on bail save to indicate what almost everyone in Botswana knows mainly that the Constitution of Botswana provides for what is commonly referred to as fundamental rights and freedoms. In terms of the law, a person is presumed innocent until proven guilty, and so the withdrawal of a person’s freedom should be fully legally justified.

But that shouldn’t be the real issue. If we each work very hard and conclude cases on time, there may well be no need for any robust debates on the bail issue. The legal debate on bail is a function of depriving an unconvicted person of their liberty. If a case is disposed of within a short space of time, the need for that debate evaporates.

My Lord the Hon. Chief Justice, in that regard, I agree with the theme that an under resourced Judiciary is an impediment to justice. I consequently support the proposal to clothe the Judiciary and its stakeholders with more resources so that law and order, in the true sense of Botswana, is restored and maintained. I am sure that when the long arm of the law reaches out, even the most hardened criminal will feel the heat and others with a like mind will be sufficiently deterred.

Before leaving this subject, I can only reiterate that a person’s liberty may only be withdrawn through a court order and that in considering bail applications, judicial officers should balance the interests of the society with those of the individual. The law is always meant to serve its society, hence the aphorism that justice should not only be done but should also be seen to be done. Where for example, the individual exhibits animus nocendi (intention to harm) as well as clear recidivism, the court should not hesitate to withdraw such individual’s freedom.

Takeover of Criminal Prosecution by the Director of Public Prosecutions

My Lord the Honourable Chief Justice, in the quest to take over the prosecutorial function from the Botswana Police Service, the Directorate of Public Prosecutions (DPP) has revised the Takeover Strategy so as to pick up the pace of relieving all the Botswana Police Service (BPS) stations in the domicile DPP offices of the prosecutorial role. Thus far, complete takeover has been achieved in Selebi-Phikwe and Palapye, whereat BPS personnel have altogether ceased to appear in Court. Resources permitting, by the end of next month (March 2023), Lobatse, Maun and Francistown will be fully taken over and police in these areas would cease prosecuting so they can concentrate on their core mandate of crime prevention. The obvious predicament that we are dealing with is lack of dedicated resources. It is further expected that by April 2023, DPP satellite offices in Kasane and Tsabong will be operational. Office space has been secured and personnel identified for these offices.

My Lord the Honourable Chief Justice, on the infrastructure front, the construction of the Maun DPP Office Block and Residential Houses is nearing completion. The project was initially scheduled to be handed over by September 2022. However, due to a number of challenges, the project is expected to be completed by the end of March 2023.

Maun Office

Last year I indicated that in order to keep abreast with the developments in the Judiciary, the Civil Litigation Division has opened a satellite office in Maun so as to deal with civil cases registered at the new Maun Division of the High Court and that Chambers will, during the course of the year, provide additional lawyers to augment the existing number. I am pleased to announce that we have recruited a senior lawyer, who is now based in Maun.

Public Procurement Tribunal

My Lord the Honourable Chief Justice, during the course of the 2022 legal year, we saw the coming into force of the Public Procurement Act, which repealed the Public Procurement and Asset Disposal (PPAD) Act. The Act introduced significant changes aimed at among other objectives promoting integrity, fairness, public confidence, and transparency in the procurement processes and procedures relating to public procurement in Botswana.

A notable reform under section 114 of the Act is the introduction of the Public Procurement Tribunal. The Tribunal, whose mandate is to adjudicate over any matter brought before it by a complainant for a breach of any of the provisions of the Act, or any appeal brought in accordance with the provisions of the Act, is a commendable milestone. I am confident that it will deliver a speedier, more specialized, and more efficient adjudication of procurement disputes, which by their very nature require prompt resolution.

Legal Services in Government Ministries/Departments

My Lord the Honourable Chief Justice, will no doubt be aware, from my previous speeches here, that the Attorney General’s Chambers has seconded lawyers to all Government Ministries and Independent Departments for purposes of providing on the spot legal advice, thereby reducing litigation against Government.

Forecasting into the future, and in line with His Excellency the President’s clarion call, it is our intention to improve Botswana’s visibility at the international fora, through, amongst others, the secondment of lawyers to regional and/or international organisations. In this regard, we have broken new ground and seconded one lawyer to the African Commission on Human and People’s Rights, an organ of the African Union, in The Gambia. Mindful of diminishing financial resources, I am certain that this is only the starting point.

My Lord, in line with Priority 2 of the Reset Agenda, the Attorney General’s Chambers has been actively involved in the review and reform of Government’s contracting landscape, in order to ensure that contracts entered into for and on behalf of Government are fit for purpose and do not expose Government to unnecessary risks and liabilities. In this regard, we would like to appeal to the entire Government machinery, including all State-Owned Agencies to use our expertise before contracting, particularly on major and impactful areas. This will go a long way in mitigating loss of money by Government, occasioned by claims arising out of poorly drafted contracts for supplies, works and services, which fail to comply with the minimum standards set by the Public Procurement Authority.

New Legislation

My Lord the Honourable Chief Justice, over the past legal year, the Attorney General’s Chambers was extremely active, both in drafting amendments to a number of pieces of existing legislation and in coming up with new legislation in relation to areas of the law which have been prioritised by Government.

In terms of generating laws, the current Parliament is most prolific and keeps abreast with the legislative needs of the country. A total of forty-two (42) pieces of legislation were passed by Parliament in 2022, a total of 193 Statutory Instruments and 798 Government Notices were drafted and published. Amongst these Acts, those which may be of interest are the Constitution (Amendment) Act, the Legal Practitioners Act and the Retirement Funds Act.

The Constitution (Amendment) Act amended section 58 of the Constitution to increase the seats of Elected Members of Parliament from 57 to 61. May we be so advised.

The Legal Practitioners Act was re-enacted to introduce new provisions which strengthen the law regulating legal practitioners in Botswana. The Act introduces a new provision which addresses the deficiencies identified by the Eastern and Southern African Anti-Money Laundering Group (ESAAMLG) in their 2017 Mutual Evaluation Report. The Act further provides for the requirement that a legal practitioner employed by a Law Clinic shall apply for a practising certificate, apply for a fidelity fund certificate and enter into a contract of pupillage in terms of the Act. Law Clinics are created under the Legal Aid Act and are under the management and control of a legal practitioner and further introduces a new procedure for conducting disciplinary proceedings against legal practitioners who have committed acts of professional misconduct.

The Pension and Provident Funds Act, 1988 was repealed and re-enacted in 2014 as the Retirement Funds Act (Cap.27:03). The 2014 Act was again repealed and re-enacted with amendments in 2022. It is now Act No.38 of 2022 and was published on 11 October, 2022. It commenced on 14 October, 2022.

The amendment and re-enactment of the Act is aimed at aligning it with modern developments based on the experience in the implementation of the 2014 Act. It also seeks to comply with international standards and best practice in the management of pension funds, in order to protect the benefits of the members.

The Act provides improved encashment of residual funds in cases -

• where a deferred member has defaulted on any loan other than mortgage owed - the amount which can be accessed to pay for loans is increased from the current one third to 100% of pension, provided the pension can cover the whole amount of the loan;

• where a deferred member has defaulted on mortgage loans owed. This is a new provision which allows access to deferred pension to repay mortgage loans for principal homes; or

• where a deferred member has become terminally ill and has to pay for medical expenses. This is also a new provision, which will allow access of deferred pension to pay for medical bills in respect of terminal ailments.

This enhanced encashment is for deferred members only and “deferred members” are those members who no longer contribute to the fund, but who still have their benefits preserved and have preserved pension rights with the fund.

Changes in related legislation brought by this Act are as follows:

(a) Income Tax Act (Superannuation Funds) Regulations, 2001 - These have now increased the amount of pension commutable at retirement from the current one third to a maximum of 50%;

(b) Pension Prudential Rules - These increase the limit of funds which can be invested locally by Pension Funds from the current minimum of 30% to a minimum of 50%.

Updating of the Laws of Botswana

With regards to the updating of the Laws of Botswana, I am pleased to report that the Law Revision Order 1 of 2022, which includes Laws up to 31st December 2019, was published on 29th July, 2022. We are currently working on updating Laws up to 2021, to be completed at the beginning of the next financial year and thereafter update the Laws up to 2022.

Loss of Professional Staff by Chambers

I must confess that Chambers is indeed carrying a heavy burden of providing varied legal services to the entire Government machinery. The workload is not commensurate with the number and expertise that we require. We continue to register no professional staff additions but only subtractions. We have to stem the tide before it is too late and block this brain drain. We require a pool of skilled, competent and experienced lawyers so as to enhance and complement our capacity and legal battlefield prowess. We are, in this regard, actively engaging the Government.

Review of the Constitution

My Lord the Honourable Chief Justice, the Commission of Enquiry into the review of our Constitution delivered its report to His Excellency the President last September. Currently the Government is studying the recommendations with the ultimate output being the White Paper. The review of the Constitution is being done in the most transparent and democratic way, in accordance with all existing laws of Botswana.

Law Reform

Following the decision by Government to establish a Law Reform Unit under the Legislative Drafting Division of the Attorney General’s Chambers, the AGC in collaboration with the United Nations Development Program (UNDP) has established the Law Reform Unit and developed a Law Reform Strategy. To date, UNDP has been unsuccessful in procuring the services of a consultant to implement the Law Reform Strategy.

Notwithstanding the challenges regarding procuring services of a consultant to implement the Law Reform Strategy, the Law Reform Unit is minimally functional. The Law Reform Unit is responsible for the yearly update of the Laws of Botswana.

Worth noting is that the Law Reform Unit has collaborated with the UNDP and other Government departments to develop the Botswana Legal Information Institute Project (Bots LII). The aim of the project is to provide the Laws of Botswana, Judgments of the higher courts and the Government Gazette on a free digital platform. A Consultant has been identified by the UNDP to lead the project and the contribution of the Law Reform Unit to the project has been the compilation and submission of Laws of Botswana in digital form.

Court Orders and the Rule of Law

I would like, for clarity and emphasis, to re-state that the Government has complied, and will continue to comply with all court orders. Not only is this necessary, but it is also a key tenet of the rule of law. In Botswana, the rule of law is supreme and must remain so. We are a true democracy where institutions of democracy should consistently and continuously function. The three (3) arms of the State should be seen to be independent from each other and should be effective in discharging their mandate.

The Judiciary is a creature of our very own supreme law, the Constitution. Its primary role is to interpret existing laws. If in the interpretation of existing laws, the Judiciary, with its constitutional independence, makes decisions that are unpopular, or even somehow repugnant to our morals, beliefs and/or national policies, let us accept those decisions, and get on with life.

The Attorney General, representing the Government, is regarded as any other litigant and actively participates in the litigation space as such. There are no special rights or privileges. And more than ever before, there is an unusual number of cases that the Attorney General refers and takes to the Court of Appeal for purposes of finality, and once such finality is attained, the next step is implementation. I implore Batswana to understand this – that we are Batswana in Botswana and that there is only one Botswana and there can never be any other Botswana.

We have noted instances where some litigants are reluctant to obey court decisions that are not in their favour. Not only is this illegal, it is, in many ways and for very many reasons, wrong. I urge litigants to respect court orders and comply with those. On the same breath, failure to comply with court orders is a breeding nest for anarchy and lawlessness and should never be condoned by our courts.

Amendment of section 164 of the Penal Code

Talking of complying with Court Orders, section 164 (a) and (c) were declared unconstitutional by the Court of Appeal in the case of Attorney General and Letsweletse Motshidiemang - Court of Appeal Civil Appeal No. CACGB-157-19. We immediately commenced the process of compliance with the Court of Appeal order and accordingly drafted a new Bill.

The objective of the Bill is to amend these provisions of the Penal Code [CAP. 08:01], which criminalise carnal knowledge between two adults against the order of nature. We published the Bill on 21st October 2022 as Bill No. 29 of 2022.

Therefore, the process of compliance with the Court of Appeal Order is at an advanced stage.

Litigation by Judicial Officers

My Lord the Hon Chief Justice, the least that should be said is that the Judiciary is going through a storm. Naturally, there is turbulence. It is true to say that a door opens so that it can close; darkness comes so that light can come; the sun sets so that it can rise. It logically follows that this turbulence is the passage-way to stability. The point is that after every storm it is time for calmness. I am, in this regard, hugely motivated by The Words of Martin Luther King, Jr when he said that:

“Fortunately, history does not pose problems without eventually producing solutions...”

It is always true to say that we are all equal before the law. Judicial officers are no exception. They are citizens with rights and obligations that other citizens have. In the true context of Botswana, judicial officers are entitled to ventilate their grievances before the same courts. I am sure I am right that the judicial system of Botswana has sufficiently matured and stood the test of time, and that it is so well established that it will deal with grievances of judicial officers as effectively as in the past.

I am the first to admit as the Attorney General that the established legal maxim here is actori incumbit onus probatio (the burden of proof falls to the plaintiff or claimant). But that is not the direction I am going. The point is that in Botswana, the sub judice rule exists and is enforceable. This Latin expression is translated to mean "under judicial consideration". In terms of the Constitution of Botswana, the courts are independent and we should leave these matters to the courts to deal with.

Recognising that these matters are sub judice and therefore nobody is at liberty to publicly comment on their merits, I wish to state that while Judicial Officers, at all levels, have the right to assert themselves before Courts of Law, the influx of cases against the Administration of Justice has the potential to erode public confidence in the Judiciary. Personally, I would have preferred exploring alternative ways of dealing with the concerns rather than through litigation.

Choice of Forum

My Lord the Honourable Chief Justice, the established position that in any legal dispute, the dominus litis is at liberty to choose their preferred forum for adjudicating over the dispute remains intact and deeply entrenched in our laws.

In terms of this position, everyone with legal standing is at liberty to file a case in any of the four (4) divisions of the High Court across the country. However, there is not the least doubt in my mind that some litigants and their Attorneys are now abusing this freedom.

There is an emerging trend where some litigants and their Attorneys file their matters as far as the Maun Division of the High Court despite all parties to the dispute and their attorneys being based in the southern part of the country. This is cause for grave concern as it not only makes litigation unnecessarily expensive but also has the potential to enable “forum shopping” to take root in our justice system. I hold the view that this regrettable trend should be brought to a complete cul-de-sac through stringent regulation.

Conclusion

As I conclude, permit me My Lord the Honourable Chief Justice to borrow from The Words of Martin Luther King, Jr:

“When evil men plot, good men must plan. When evil men burn and bomb, good men must build and bind. When evil men shout ugly words of hatred, good men must commit themselves to the glories of love. Where evil men would seek to perpetuate an unjust status quo, good men must seek to bring into being a real order of justice.”

My Lord the Honourable Chief Justice, My Lords and Ladies, Your Worships, when some plot, may you plan; when some burn and bomb, may you build and bind; when some shout ugly words of hatred, may you commit to the glories of love; when some perpetuate an unjust status quo, may you bring into being a real order of justice. And may you remember that oath – that oath to do justice to all at all times, in accordance with the laws and usage of Botswana!

My Lord the Honourable Chief Justice, nothing lasts forever, including my speech at the Ceremonial Opening of the Legal Year. May the Lord our God bless you and this nation!

I AM MOST INDEBTED TO YOUR LORDSHIP.

I THANK YOU!