ADDRESS BY: MS MMAKO MPELEGANG ABRAM ATTORNEY GENERAL OF THE REPUBLIC OF BOTSWANA ON THE OCCASION OF THE CEREMONIAL OPENING OF THE 2024 LEGAL YEAR TUESDAY 6TH FEBRUARY 2024

Introduction
1. My Lord, The Honourable Chief Justice, may I begin by expressing my profound gratitude for the privilege and honour to address this august gathering on the occasion of the 2024 legal year opening.

2. I also hasten to mention that this is my first appearance in my capacity as the Attorney-General of the Republic of Botswana since I assumed office on the 1st June 2023.

3. I therefore wish to seize the opportunity to thank His Excellency the President of the Republic of Botswana for the confidence he has shown in me through this appointment. My gratitude also goes to members of the Judiciary, the legal profession and the public at large who congratulated me and wished me well in this solemn Constitutional office, and as I commence this new chapter of my professional life.

4. My Lord, The Honourable Chief Justice, allow me also to pay due respect to my immediate predecessor, Advocate Abraham Merriweather Keetshabe, for his distinguished service and contribution to the legal profession and to the Republic as Attorney-General and in other various capacities in which he served, such as in the Judiciary and the Public Service. We wish him well in his current and future endeavours.

5. Before I delve into my reply, it is opportune for me to join the Honourable Chief Justice in congratulating all those who have been appointed to higher office, and more recently Ms Beulah Kgakgamatso Mguni for her appointment as Chief Registrar. But allow me to also single out senior appointments at the AGC. I congratulate Ms Nomsa Sinki Moatswi on her Constitutional appointment to the position of Director of Public Prosecutions, as part of my executive management team. As you are aware in terms of the Section 51A (1), the DPP reports administratively to the office of the Attorney-General. On a similar note we also recently welcomed to our team as Head of the International and Commercial Division, Ms Ndibo Oitsile.

6. At this point, let me also join the Honourable Chief Justice in paying tribute to the recently departed, including members of the Judiciary. May their souls rest in eternal peace.

7. My Lord, the theme for this year is “The Judiciary as an arm of Government.”

8. The Attorney-General’s Chambers is one of the critical components that supports the Judiciary as an arm of Government. Not only is the Attorney-General appointed as principal legal adviser to the Government of Botswana in terms of Section 51 of the Constitution, the Office of the Attorney-General is a key player in ensuring that the Administration of Justice meets its objective of delivering justice, and the smooth running of the courts.

9. In that regard it is important at this juncture to highlight some of AGC’s achievements and challenges.

Legislation

10. My Lord, the Chief Justice, it is important that I begin with legislation, because Parliament as another arm of Government, enacts laws in terms of the Constitution, and the courts are enjoined to interpret those laws. Thus, legislation provides the regulatory framework for our judiciary as an arm of Government, to continue carrying out its business of the day, that of being arbiters of justice and ensuring that citizens obey the law, whilst also being entitled to the full protection afforded to them by the Constitution.

11. Legislation must therefore continue to be relevant in an ever-changing society. I am pleased to report that over the past legal year, our Legislative Drafting Division has been very active. They have effected amendments to a number of pieces of existing legislation, and drafted new legislation in areas of the law which have been prioritised by Government.

12. A total of thirty-one (31) pieces of legislation were passed by Parliament in 2023, a total of 129 Statutory Instruments and 741 Government Notices were drafted and published. I wish to highlight, amongst these Acts, those which I believe will be of more interest to you.

13. My Lord, the very first notable enactment is the Electoral (Amendment) Act, 2023 which introduced electronic registration and publication of the voters roll on online platforms. This law also increases fees for candidates; allows for costs recovery and enhances penalties for election offences.

14. My Lord, in the area of criminal procedure, I wish to highlight the Bail Act, 2023 which was passed by Parliament at its November 2023 session. In this law, the rules on bail are codified into one piece of legislation to promote access to justice and transparency. It is expected that this will improve the processing of bail applications and public understanding of the requirements of the law around the issuing of bail, and enhance confidence in our criminal justice system.

15. My Lord, the next enactment I wish to underscore is the Anti-Human trafficking (Amendment) Act 2023. Concerning this amendment, I am pleased to note in the Chief Justice’s address that the role of the judiciary in dispensing justice in this area was a subject of serious discussion at last year’s Tenth (10th) Biennial Conference of Commonwealth Judicial Educators (CJEI). It is in light of this that we continue to answer to the call of the international community to make every effort to crack down on human trafficking through tightening legislation. This amendment therefore addresses legislative gaps in the area of enforcement and penalties to be imposed on traffickers.

16. My Lord the Chief Justice, other pieces of legislation which have been promulgated are the Mental Health Act enacted to replace the Mental Disorders Act.

17. Also worthy of mention is the Persons with Disabilities Act 2023 which to an extent, has domesticated the 2006 United Nations Convention on the Rights of Persons with Disabilities and is indeed a reflection of further positive steps to ensure the protection of persons with disability.

Public Prosecutions

18. My Lord the Chief Justice, the Office of the Director of Public Prosecutions (DPP) was established through the Constitution in 2005 and has been in existence for 19 years now. The DPP has the sole power to institute and undertake criminal proceedings against any person before any court other than a court martial, and also has the power to take over and continue a private prosecution.

19. By virtue of this mandate vested in her by the Constitution, the DPP (like other Divisions of the Attorney General’s Chambers) continues to play a critical role as a major stakeholder to the functions of the Judiciary as an Arm of Government.

20. In an endeavour to exercise the powers conferred upon her by the Constitution, the DPP embarked on a project geared towards the taking over of the prosecutorial function from the Botswana Police Service as directed by Cabinet Directive No. 32 (b) of 2004. We wish, at this point to express our sincere gratitude to the Botswana Police Service for having graciously over the years, ably and with so much commitment, assisted the DPP with prosecution of certain matters. The project is not without challenges. Some of the greatest impediments to the Project are; an increase in the workload for the prosecutors, acute shortage of resources, and the absence of the DPP footprints in strategic areas.

21. Your Lordship, the implementation of the takeover Project without dedicated resources has negatively impacted the operations of the DPP which in turn affects the delivery of justice. As already pointed out, the work load ratio has drastically increased, compounded by the high turnover of prosecutors.

22. But I hasten to add on the same note that, since the inception of the Project, Government has, through the DPP made great strides in extending its offices from Gaborone, Lobatse, and Francistown, to areas such as Maun, Selibe Phikwe, Palapye, Kasane and Tsabong but there is still need to reach other areas.

Civil Litigation

23. Your Lordship, the Civil Litigation Division is a key part of the Attorney-General’s Chambers as it is responsible for undertaking litigation of all civil actions for and against Government. For that reason, the Attorney General’s Chambers has always been considered the largest law firm in the country. Allow me to highlight that the litigation terrain has evolved over the years, with our citizens becoming more litigious and aware of their civil liberties. As a result of the increase in litigation, we are working hard to ensure that the office is sufficiently capacitated in terms of resources and further training of officers to meet the specialised nature of legal challenges before the courts. In recent times this Division has been forced to outsource cases of national importance and those requiring areas of expertise that we do not have, as a symptom of not only attrition but lack of skilled and experienced lawyers.

24. Your Lordship, this was confirmed in a parliamentary response by the Minister of Justice Honourable Machana Ronald Shamukuni in March 2023, that the Government currently outsources legal services to professionally qualified, competent, skilled and experienced lawyers. I am pleased to report that we are refining an outsourcing framework that regulates this system.

Notable judgments delivered during the 2023 legal year

25. It is opportune at this time to mention briefly notable judgments which reached the Apex court for final determination in 2023, wherein the Attorney General was cited as a party.

The Voter Registration Case

26. My Lord the Chief Justice, the recently decided voter registration case, which raised the question of whether political parties have a right to monitor and observe the electoral registration process is worth mentioning, as it had a direct bearing on the conduct of the forth-coming elections. The Court of Appeal, as the final adjudicator in the matter, in its judgment delivered on 19th December 2023 held that there is no justiciable right conferred on political parties to monitor and observe the electoral registration process either expressly or impliedly by either the Constitution or the Electoral Act.

27. Following the Court of Appeal decision, the Independent Electoral Commission commenced the just ended registration process for this year’s general elections. It is my hope that we all managed to register within the time given, and may I encourage all to vote when the time comes.

Bamalete land dispute

28. Another notable decision delivered during the 2023 legal year is the case involving the Bamalete Land dispute. In its majority judgment delivered on 7th March 2023, the Court of Appeal upheld the finding by the High Court that Section 7 of the Tribal Territories Amendment Act No. 3 of 1973 amounted to an unconstitutional deprivation of the right to property enshrined under Section 8 of the Constitution.

29. The Court thus struck down the provision and declared the Bamalete tribe the rightful owners of Forest Hill Farm.

30. My Lord the Chief Justice, if the role of Parliament to make laws is onerous, their Lordships have an even more onerous task of interpreting and applying such laws to ensure that they are used to protect and not oppress the people. I therefore commend their Lordships for continuing, without fear or favour, to hand down decisions that shape this country’s jurisprudence and constitutionalism.

Updating of the Laws of Botswana

31. As regards the updating of the Laws of Botswana, I am pleased to report that the Law Revision Order 1 of 2023, which updates Laws up to 31st December 2020, and Law Revision Order 2 updating Laws up to 31st December, 2021 is expected to be published in the last quarter of this financial year. We are currently working on updating Laws up to 31st December, 2023. This exercise is expected to close the backlog by June this year.

Attrition

32. That having been said, it is opportune at this point to fully address the issue of attrition and shortage of skilled attorneys, which is a common denominator and long thread that runs through, not only the Attorney-General’s Chambers but the Judicial arm of Government as well, as confirmed by the Honourable Chief Justice.

33. My Lord the Chief Justice, has also alluded to continued engagements with the Directorate of Public Service Management on the need for more judicial and non-judicial officers. We also continue to knock on the same door as the DPP has lost seasoned prosecutors. In February 2023 we reported that a total of ten (10), including six (6) executive level prosecutors had left the DPP. Since our last address to date, the total number of prosecutors that have left has increased to sixteen (16). In addition, the Civil Litigation, International and Commercial and the Legislative Drafting Divisions have also not been spared in the loss of experienced lawyers in search of greener pastures in the private sector, parastatals and other arms of Government.

34. That said, My Lord, I am pleased to report that, efforts are being made to address the issue of conditions of service for Government lawyers in order to retain them, by achieving alignment and parity in the area of remuneration across the Public Service.

E-Filing

35. Your Lordship, it is gratifying to hear that the AOJ -CRMS (Court Records Management System) will soon be up and running and attorneys and other stakeholders will soon be able to make follow-ups on the status of court processes. Your Lordship, the interruption of e-services connectivity is a problem that cuts across the public service and Government is working around the clock to ensure uninterrupted delivery of service in that area as a whole.

36. Government recognises the importance of e-systems and consistent with the idea that e-governance issues should not remain elusive. Botswana’s National Vision 2036 highlights ICT (information and communication technology) as a crucial enabler for the efficient delivery of Government services across all economic sectors.

37. We are also elated to hear that the judiciary has started working on the e-filing project, sometimes referred to in other countries as e-justice or e-courts. This continues to be the way to go in many progressive jurisdictions.

38. My Lord let me mention briefly that in 2023, the Attorney-General’s Chambers embarked on a benchmarking exercise to other regional jurisdictions in a bid to improve, not only internal litigation processes but also to acquire more knowledge on the workings of e-systems in so far as they relate to the courts. This will assist in effectively collaborating with our stakeholders inclusive of the Administration of Justice on issues of e-filing, e-service of court processes, accessing of court rolls, and e-payments. I report that this exercise is still on-going.

39. Your Lordship, once e-filing is entrenched into our system, it will speed up access to justice and also control costs. Interaction and interconnection with other stakeholders and departments will become seamless and this will go a long way in transforming our judiciary into what it aspires to be “…a World Class Judiciary by 2036” .

Litigation Costs

40. My Lord, the Chief Justice, Statutory Instrument No. 1 of 2021, which effected from the 8th of January 2021, brought about an upward review of rates for legal costs by practising attorneys as per Order 74 of the Rules of the High Court. There is no doubt that such an increase had the good intentions of adjusting the old and inflation-eroded rates.

41. This adjustment assumed that all practising attorneys will utilise courts within their localities – for example, those in Gaborone would issue out processes in the Gaborone District, those in Francistown within the Francistown District, etc. Currently, there are no legal geographical limitations concerning the jurisdiction of our courts.

42. However, the situation calls for legal practitioners’ prudence and good sense, to utilise our courts in a cost-conscious and effective manner to protect the financial interests of clients.

43. Just as the Honourable Chief Justice has stated in his address, we have also observed the trend that some attorneys who litigate, especially against the Government, would leave courts within their locality, to file court processes in faraway places.

44. The result of such a worrying development has invariably been that this practice is likely to increase costs in respect of mileage and accommodation for both parties, but is particularly more expensive for those litigants who are ordered to pay costs of the other party.

45. This defeats the objective of controlling litigation costs in dispensing justice. I therefore advocate for a civil justice system that is user-friendly, rather than one that is plagued by high costs, and accessibility issues.

I am therefore pleased to hear that His Lordship the Honourable Chief Justice has taken note of this issue and will be engaging other stakeholders to address it.

Adequate resourcing of the Judiciary

46. Your Lordship, if the Judiciary as an arm of Government is to dispense justice effectively and meet its goals for 2024 and beyond, it must be sufficiently resourced. An inadequate budget negatively affects the operations of the Courts. As you have reported my Lord, other projects such as Court Annexed Mediation (CAM) are as a result, on hold.

47. It is therefore important that the role of the Judiciary as an Arm of Government and that of the critical stakeholders who feed into the mandate of the Judiciary is fully recognised and all entities adequately resourced to ensure the speedy delivery of justice to the citizenry.

48. Your Lordship, I share the sentiments of many in this gathering that Botswana’s judicial system continues to be the envy of other nations. Therefore, not only will a well-resourced system ensure justice for all, but it will move Botswana as a country into inspiring investor confidence by providing access to quality justice where the rule of law is respected. The rule of law is a basic tenet of any democratic country, requiring an independent judiciary that functions with reasonable efficiency.

Litigation within the Judiciary

49. My Lord, the cornerstone of any sound judicial system is centred on its ability to retain public confidence and respect. During the past two legal years, we witnessed a number of court cases that pitted some of their Lordships of this Honourable Court against the Honourable Chief Justice and the Judicial Service Commission (JSC).

50. It is however comforting that as His Lordship promised when delivering his speech during the opening of the just-ended legal year, some of these cases have been resolved amicably, thus avoiding drawn-out litigation in the public eye.

Stakeholder Engagements

51. My Lord, the justice machinery of any democratic society cannot be effective without stakeholders, both internal and external. The DPP, the Botswana Police Service, Botswana Prison Service, Lawyers, Deputy Sheriffs and others are some of the most crucial “gate keepers” of the criminal and civil justice of this country, without whom our judiciary would become less effective.

52. I therefore applaud the Administration of Justice for its annual stakeholder conferences, which have so far proved to be an effective platform for stakeholder dialogue.

Law Society Boycott

53. Still on the aspect of ensuring collaboration between stakeholders, I wish to submit that the Attorney General supports and indeed encourages continuous partnering and engagement between all the relevant stakeholders for the effective operation of the justice delivery system.

Conclusion

54. In conclusion, I extend my good wishes to the Honourable Chief Justice, Judges and members of the legal fraternity, for good health and success in this legal year.

My Lord, may I at this point propose that the 2024 Legal Year be opened.

I THANK YOU!!!