OPENING OF THE 2022 LEGAL YEAR SPEECH - ATTORNEY GENERAL

Introduction

 

  1. 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 2022 legal year.

 

  1. My Lord the Honourable Chief Justice, permit me to commence my speech by paying tribute to a man who has truly served the country; a man who has served his clients whilst in private practice with admirable distinction; a man who has served in public offices as Deputy Attorney General, Attorney General, Judge of the High Court and President of the Court of Appeal, Mr Justice Ian Stuart Kirby.  Human beings are by nature finite whilst the work of a lawyer is infinite.  I have seen Mr Kirby exploit his human capabilities to bring out the very best of himself.  I am privileged to have worked with Mr Kirby in the Judiciary and in the public service when he was the Attorney General.  I would simply describe him as a true legal giant.  As Mr Kirby retires, there is no need to search for his legal footprints for they are in abundance.  In this country, we are blessed to have one of a nature like him.  May the hand of our Lord continue to touch him and provide immense joy and peace in his retirement.

 

  1. May I recognise Mr Justice Zibani Makhwade, who retires having served at the Attorney General’s Chambers, in private practice and at both the High Court and Court of Appeal.  May the good Lord protect him in his retirement.

 

  1. On the same breathe, I wish to recognise Judge Michael Mothobi and Judge Phadi Solomon who retired last year.  They have engraved their names in the legal history books of this country.  I wish them well in their retirement and may the hand of our good Lord continue to touch them.

 

  1. My Lord the Honourable Chief Justice, allow me to recognise Judge Michael Motlhabi and Judge Bugalo Maripe who both ascended to the High Court bench last year.  Both men are well known in the legal profession and are equally familiar with the heavy and onerous role of a judicial officer in the contemporary Botswana.  I congratulate them and wish them the very best in the discharge of their duties.

 

  1. The country continues to see history in the making as we recently witnessed the appointment of Justice Tapologo Mercy Garekwe to the Court of Appeal bench, and Justice Tebogo Tau as the President of the Court of Appeal.  These appointments do not come easy.  They are earned.  Ladies, I am proud of you, and certainly proud to be a Motswana.  Age is definitely on your side. The appointment of women, not just because they are women, is a welcome development and should raise the governance bar in this country to another level.

 

  1. For His Excellency President Masisi, it is another capable woman occupying a position of power, this time at the Court of Appeal, and he should have the comfort and belief that he has exercised his constitutional authority of appointing the Judge President of the Court of Appeal very well – and for this, he deserves credit.

 

  1. May I also extend congratulations to the first woman Chief Registrar, Ms Juliana Dube-Gobotswang.  I have attended every opening of the legal year since 1987 and it is pleasing to observe that now the Call to Order is being done by a woman.

 

  1. May I also take this opportunity to congratulate and welcome the new Permanent Secretary, Ministry of Defence, Justice and Security, Ms Botlhale Makgekgenene to the Ministry and all its related challenges.

 

Covid-19

 

  1. My Lord the Honourable Chief Justice, as we gather here to open the 2022 legal year, let us sympathise and empathise with someone who is physically constrained - someone who sees and yet cannot see meaningfully; someone who hears and yet cannot hear and understand these proceedings; someone who struggles to regain strength.  Is it not true that right now, one fellow human being is struggling to extract free air from the atmosphere into the lungs and needs assistance?  

 

  1. As Covid-19 ravages indiscriminately through the entire earth’s surface, the human race remains truly perplexed as providing solutions becomes very complex.

 

  1. The starting point in dealing with Covid-19 is acceptance that it is here, and that it is here to stay.  We therefore have to plan all our programs and initiatives around it – cognizant of the fact that our solutions of today are our challenges of tomorrow and hence, we should plan wisely and lay a solid foundation for future generations.

 

  1. I am reminded of what Marshall Ferdinand Foch, a French World War 1 hero, said:

 

“There are no hopeless situations; there are only men and women who have grown hopeless about them”.

 

 

We cannot grow hopeless about Covid-19.  We can, and should remain resilient, and rekindle the spirit of oneness in confronting this pandemic. I should warn and caution that the solution cannot be found exclusively in the law. While a well-established legal principle is that of omnia rite esse acta praesumuntur (translated to mean presumption in favour of constitutionality of statutory provisions), our national response to this pandemic should rather be less legal and more behavioural. In other words, it is not the law, but rather our behavioural attitude that will drive and propel this nation through and out of the debilitating effects of the pandemic.  As they always say, it is our attitude that determines our altitude.

 

  1. In this regard, I find comfort, and I must say that I admire the words of Martin Luther King, Jr when he said:

 

“Through education we seek to change attitude, through legislation and court orders we seek to regulate behaviour. Through education we seek to change internal feelings (prejudice, hate, etc.), through legislation and court orders we seek to control the external effects of these feelings…”

 

Over the past two (2) years, a pattern has emerged, and we do not require any ecclesiastical brilliance and dominance to provide us with knowledge that Covid-19 is an undisguised killer, warranting a deliberate and defined response from the human race as a whole.  It is true to say that no one is safe from Covid-19 until we are all safe and that it affects us all.  Covid-19 truly fits the legal maxim hostis humani generis because it is considered to be the enemy of the human race.  I therefore urge and plead with the nation to support and encourage one another, to assist and join hands with one another as we traverse this extraordinarily difficult and challenge –prone era of the pandemic.  Wisdom from the Bible tells us that:

 

“The race is not to the swift, nor the battle to the strong, nor bread to the wise, nor do riches to men of understanding, nor favour to men of skill; but time and chance happen to them all. For man also does not know his time; like fish taken in a cruel net, like birds caught in a snare, so the sons of men are snared in an evil time, when it falls sudden upon them.”   

(Ecclesiastes 9: 11-12 NKJV)

  1. Let us overcome the evil brought about by the pandemic with the good, and continue with life in a unique way that injects the embodiment of our true cultural norms. Only then can we realise our worth and resilience as a nation.

 

Amended Rules of the High Court:  Greater Control and Decisiveness

 

  1. My Lord the Honourable Chief Justice, focusing now on the Judiciary and the justice system, there is an urgent need for change; change not for the sake of change but for bringing justice closer to the people. The advent of Covid-19 requires that the customer or the litigant, should come first. The justice system should be responsive and response - able to the customer. The country needs to build a robust legal infrastructure that will generate and maintain perennial investor confidence, retention and attraction. The court processes, in that regard should therefore be investor-friendly and should permit ease of ventilation of disputes and grievances, and determination thereof.  It is true to say that Covid-19 has rendered our justice system in its present form somehow archaic and irrelevant, and like a truly aged axe, dull.

 

  1. Drawing again from the wisdom of the Bible it is written:

 

“If the axe is dull, And one does not sharpen the edge, Then he must use more strength…”

(Ecclesiates 10:10 NKJV)

 

Amending the Rules introduces sharpness and teeth with which to bite – thus enabling the Judiciary to take absolute control over the entire litigation process with utmost ease.

 

  1. Our national agenda is to re-set and re-claim the economy.  If we are to truly re-set the economy of this country and generate the much needed jobs, it is a far-fetched idea and a wild goose chase to think, even remotely, that we can do so without significantly altering and/or amending our conservative judicial processes. In that regard, the theme is apposite and has my support. For example, it matters not how voluminous Counsel’s Heads of Argument are, the time for oral submission should be limited for purposes of management and control of the court’s time. Judicial processes should be looked at afresh with a view to injecting speed and effectiveness in the system.  Ex cathedra, that is, from one’s position, His Lordship the Chief Justice has that authority.

 

Sexual Harassment in the Work Place 

 

  1. My Lord the Honourable Chief Justice, as a nation, we have talked about Gender Based Violence (GBV) a lot particularly during the past two (2) years. And it is a source of great discontent that it continues. This problem avails itself for deeper understanding through a study. This will enable us to understand the problem and then isolate our response so that the problem is not in our response. I must pause here and single out the concerted effort of none other than our First Lady, Mrs Neo Masisi who, very courageously, in the midst of severe head-winds, runs this race with admirable endurance. Her efforts in the fight against GBV deserve special mention and commendation, and I so do.

 

  1. Very briefly, I intend to talk about sexual harassment in the work place. A Google search confirms that there is consensus that sexual harassment involves unwanted and unwelcome explicit or implicit sexual advances on another person in return for some unsolicited favours. Sexual harassment may be committed by a female person upon a male person or a male person upon a female person. In the work place, it flows from one employee to the other. The harasser may be a direct manager, direct supervisor, an influential co-worker or a work colleague.

 

  1. Needless to say, such conduct is not only wrong and uncalled for, it is also criminal. Sexual harassment is illegal in Botswana. 

 

It is important to understand that as long as the sexual harassment is directed to a fellow employee, it matters not as to whether the act occurs in the work place or outside the work place, even if it is after working hours.

 

  1. Under such circumstances, the victim may start to have concerns about performance or job security or prospects of advancement. Such environment is threatening and intimidating, at least in the mind of the victim who now begins to dislike the work environment, clearly drops in performance and fails to meet timelines as the focus both in and out of the work place, is now more on how to deal with the irritating situation.

 

  1. I am perfectly aware that such victims have choices and because they have lost rationality, they often opt for the wrong choice – the wrong choice of silence and suppression of their suffering. I wish to specifically advise such victims that in Botswana we are all equal- no one is above the law. It is true that even if one is a supervisee it is not the size of the dog in the fight that matters, but rather the size of the fight in the dog that matters, and therefore, no matter how small they may believe, victims of sexual harassment in the work place should come out and bring this type of criminal conduct to the surface for the law to take its course.  The legal maxim here, often also used as a motto is fiat justitia ruat caelum - let justice be done though the heavens fall. It is important to allow the law to take its course so as to smoke out sexual predators from the work environment.  

 

Role of the Botswana Police Service

 

  1. My Lord the Honourable Chief Justice, the Botswana Police Service continues to play a critical role in the Criminal Justice System. On Gender Based Violence, the Police Service has responded relatively well.

 

Capacity building programmes are being enhanced to improve the investigation and prosecution of Gender Based Violence related cases, and those involving children. Already, two Child Friendly Service Centres have been established in Gaborone and Francistown, in part, to create a conducive environment for handling the victims and safeguarding their privacy. The on-going roll out of the Centres to Maun, Palapye and Lobatse will go a long way in protecting and preserving the dignity of victims of these crimes.

 

It is also worth noting that the Police Service is committed to providing public safety as a primary responsibility. It is observed that efforts to guarantee requisite safety and security are among top policing priorities. In this connection, the recent spate of armed robberies targeting businesses and cash-in-transit vehicles has been reduced. This will obviously have a positive impact on public confidence in the Police.

 

Director of Public Prosecutions

 

  1. My Lord the Honourable Chief Justice, it is well known that the Director of Public Prosecutions (DPP) derives his mandate from section 51A of the Constitution of Botswana.  Of recent, it has become fashionable for litigants to legally question and challenge the DPP’s discretion to prosecute/prefer charges against certain individuals.  These matters have reached the apex of our court structures and the Court of Appeal has adjudicated upon them and brought finality.  The issue of the powers/discretion of the DPP has been settled swiftly and succinctly.  This efficiency is truly appreciated.

 

 

  1. Section 51A(6) of the Constitution provides that in the exercise of the functions vested in him, the DPP shall not be subject to the direction or control of any other person or authority.  The proviso that says the DPP shall consult the Attorney General on cases considered by the Attorney General to be of national importance, does not in any way detract or subtract anything from this independence, nor can the “administrative supervision” of the Attorney General do so.  The DPP is, and indeed, should be independent, particularly in a leading democracy such as ours.  Speaking with utmost conviction, every DPP will jealously guard against interference in the exercise of this mandate.

 

  1. It is a source of great pleasure to announce that some success has been realised in securing office accommodation for the DPP.  The construction of Maun DPP office is progressing satisfactorily, with occupation being expected by September 2022.  This should go a long way in further assisting the Directorate to effectively deliver on its mandate.

 

  1. In order to keep abreast with the developments in the Judiciary, the Civil Litigation Division has also opened a satellite office in Maun so as to deal with cases registered at the new Maun High Court. Chambers will, during the course of the year, provide additional lawyers to augment the existing number.

 

Allocation of Cases

 

  1. My Lord the Honourable Chief Justice, I wish to humbly bring to your attention a challenge that we are beginning to experience and that is quite unpalatable in the litigation space.  There is a very unusual and strange pattern of some types of cases being allocated only to certain judges. I urge the judiciary to consider coming up with a way of discouraging this undesirable practice.

 

 

 

 

 

Provision of Legal Services in Government

Ministries/Departments

 

  1. Currently, the Attorney General’s Chambers has 56 attorneys seconded to Government Ministries and some Departments. The objective of seconding officers is to speed up service delivery and facilitate Government operations, as well as to reduce the incidence of unwarranted litigation against the Government.

 

New Legislation

 

  1. My Lord the Honourable Chief Justice, over the past legal year, the Attorney General’s Chambers has been 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.

 

  1. A total of twenty-eight (28) pieces of legislation were passed by Parliament in 2021, a total of 119 Statutory Instruments and 812 Government Notices were drafted and published. Amongst these Acts are the Constitution (Amendment) Act, the Local Government (Amendment) Act, the   Sexual Offenders Registry Act, the Public Procurement Act, the Local   Authorities Procurement and Asset Disposal (Repeal) Act and the Economic Inclusion Act.

 

  1. The Constitution (Amendment) Act and the Local Government (Amendment) Act each introduced a new provision to cause a vacancy in the seat of an Elected Member, who, having been elected as a candidate for a political party, resigns from that political party or who is not a member of a political party, becomes a member of a political party.

 

  1. The Public Procurement Act is a re-enactment of the Public Procurement and Asset Disposal Act.  It continues the Public Procurement and Asset Disposal Board as the Public Procurement Regulatory Authority and revises the functions of the Public Procurement Regulatory Authority for efficiency and effectiveness in the regulation and management of public procurement processes.

 

  1. Of special interest to the nation is the Economic Inclusion Act. The purpose of the Economic Inclusion Act is to promote effective participation of targeted citizens in the economic growth and development of the economy. Before its enactment, Botswana did not have a stand-alone or consolidated citizen economic inclusion legislation. Instead, citizen economic empowerment provisions were captured under various legislation, initiatives, policies and directives.

 

  1. The Economic Inclusion Act establishes the Economic Empowerment Office which is responsible for the facilitation of the enforcement of the economic empowerment laws, policies, initiatives and programmes and ensures compliance with such. Therefore, the Economic Inclusion Act ensures the development of an integrated, coordinated and uniform approach to economic transformation and empowerment.

 

Review of the Constitution

 

  1. My Lord the Honourable Chief Justice, His Excellency the President has already set in motion the process of the review of our Constitution.  This is by no means a small task.  I would like to caution that our Constitution has, hitherto, served us very well, allowing this country as a democracy to continue to flourish and Batswana to enjoy their rights.  We should never lose sight of this.  I therefore would like to urge Batswana to approach this review with the full understanding that the Constitution has served us very well.  Let us approach this review with the best of our tried and tested nation-building values of botho, humility, tolerance and respect.  Let us avoid being famous for very infamous reasons.

 

 

 

 

 

Conclusion

 

  1. As I conclude, it is worth noting that 2021 was a history - making year, history-making in the form of the landmark judgment in the case Attorney General vs. Letsweletse Motshidiemang and others, an application challenging among others, the constitutionality of sections 164(a) and 164(c) of the Penal Code which criminalise same-sex sexual conduct and prescribe a maximum sentence of seven (7) years imprisonment in the event of a successful prosecution.  The full bench (5 judges) of the Justices of the Court of Appeal unanimously agreed to declare sections 164(a) and 164(c) of the Penal Code unconstitutional and struck them down.  The Court of Appeal held that these provisions have the effect of violating gay men’s right to liberty, privacy, dignity and not to be discriminated against on the basis of gender.

 

 

 

  1. On 30th November 2021, I released a public statement to the effect that the Judiciary is an independent arm of the State with the constitutional responsibility to interpret our laws. In that regard, the Government respects and shall comply with this decision of the Court of Appeal and implement it.  I have already set in motion this process.

 

My Lord the Honourable Chief Justice, finally, may the Lord our God bless you and bless this nation!

 

I AM MOST INDEBTED TO YOUR LORDSHIP.

 

I THANK YOU!