7th February 2023
Own Correspondent
The Chief justice Terence Tsatsilakgosi Rannowane has expressed concern at the alarming incidence of attacks on the judiciary on social media and appealed to the Law Society of Botswana to engage them directly before venting frustration with the judicial system publicly.
He also dismissed allegations by critics that the outcome of legal cases was predetermined. The attacks under the false guise of whistleblowing have targeted Judges of both the High Court and the Court of Appeal. These attacks allegedly undermined and compromised the rule of law and the country’s standing internationally and must in any democracy be frowned upon.
He indicated that according to the WORLD JUSTICE REPORT 2022 Botswana’s Criminal Justice has been ranked No.1 in Sub-Saharan Africa since 2019. However, overall ranking, which includes criminal justice, civil justice, regulatory enforcement, order and security, fundamental 15 rights, open government, absence of corruption and constraints on government, places us at No.4 in Sub-Saharan Africa.
He however acknowledged that the case disposal rates for Botswana courts could have been better had it not had to contend with the challenges posed by the Covid-19 pandemic
“Currently, we have 40 pending corruption cases against 10 that have been completed. Of the 3732 Gender Based Violence (GBV) cases registered, 1261 have been completed. Stock theft cases across the country stand at 380 of which 127 have been disposed of. Out of 17638 civil cases registered at the High Court, 9662 have been completed, said Chief justice Terence Tsatsilakgosi Rannowane.
He said, “As for the Court of Appeal, the report indicates that for substantive appeals the performance for the period January 2022 to October 2022 stands at 90%, whilst for applications over the same period performance was 100%. One must observe that notwithstanding the collapse of our Case Record Management System (CRMS) in 2021, which was introduced to manage and track cases, our manual system still allows us to produce up-to-date and fairly reliable statistics.”
The system collapse is a matter Chief justice is taking every effort to bring under remedy. The collapse was allegedly caused by the replacement of Microsoft explorer with Microsoft edge.
As part of its service delivery initiative, the Magistrates Court Act was also amended to increase the civil jurisdiction of the Magistrates Courts from a maximum of BWP40 000.00 to BWP100 000.00.
This increase is to allow litigants an opportunity to use the less expensive Magistrates forums to pursue their claims. The Trust Property Control Act was amended to address deficiencies found in the mutual assessments conducted by Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG) on the definition of “beneficial owner” in cases of money laundering and related offences and transactions.
The definition of beneficial owner has been amended to conform with the Financial Intelligence Act. As a result of these and other improvements in the anti money laundering legal framework, country’s rating was upgraded from non-compliant to compliant at ESAAMLG meeting in July 2022, held in Zambia.
As a result of inadequate funding, the courts have (since August 2022 to date) not been able to pay pro-deo 20 fees, pay witnesses, effect transfers of officers or conduct murder trials or take justice to the people by conducting circuit courts.
“We have also not been able to provide stationary and related supplies and consumables for our courts. We require funding for structural and air conditioning repairs at Francistown High Court, Mochudi, Ghanzi and Shakawe Magistrates houses, air conditioning at both Gaborone High Court, Broadhurst, Molepolole and Jwaneng Magistrates Courts. Additionally, procurement of temporary office accommodation space for Takatokwane, Mogoditshane and Kasane Magistrates Court is required, without which there will be no or delayed delivery of justice,” said Rannowane.
He said, “The High Court in Gaborone requires more office space without which more Judges cannot be recruited. Institutional houses in Lobatse are 21 structurally defective. This has resulted in some Judges having to commute between Gaborone and Lobatse on a daily basis thus putting their lives at risk. In Maun, there are no institutional houses for Judges of the High Court and it is proving a challenge to secure suitable ones from the private market.”
According to officials, 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 prioritized 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.
The Legal Practitioners Act was re-enacted to introduce new provisions strengthening 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 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 reenacted in 2014 as 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. 22 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%.
“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,” said Abraham Keetshabe, Attorney General of Botswana, at the opening of the Legal Year.
He said, “And more than ever before, there is an unusual number of cases that the Attorney 27 General refers and takes to the Court of Appeal for purposes of finality, and once such finality is attained, the next step is implementation.”
Contrary to a narrative pushed by some, the Law Society of Botswana(LSB) says it does not pursue any political agenda and embraces the principles espoused in the Legal Practitioners Act (LPA), of 1996 as amended and by its membership.
Osego Garebamono, Chairman of the Law Society of Botswana, Osego Garebamono, said “Judicial independence as a concept dictates that the courts should not be subject to improper influence from other branches of the State or from private or partisan interests. This is a cornerstone for the proper functioning of a State which is based on democratic values.”
He said, “As a consequence, judges’ protection from undue influence or interference should be a key concern and there should be norms in place to protect judicial independence. Allegations of interference should be addressed swiftly with the urgency they deserve, as they are a threat to democracy and the rule of law.”
As a consequence, judges’ protection from undue influence or interference should be a key concern and there should be norms in place to protect judicial independence. Allegations of interference should be addressed swiftly with the urgency they deserve, as they are a threat to democracy and the rule of law.
The recent complaint and allegations made by an honourable judge to the effect that the Chief Justice and a Minister in the office of the Presidency sought to influence his decisions in a particular case which he was seized with are worrisome, to put it mildly said the Law Society of Botswana(LSB).
“What is also worrisome to us is how the complaint was handled by the Office of the President and the Judicial Service Commission, as, in our view, it was not accorded the attention it deserved within the shortest period of time,” said Garebamono.
He said, “In terms of our Constitution the Presidency and the Judicial Service Commission bear a responsibility to protect the judiciary and we believe that delays in providing this protection are damaging to the reputation of the institution.”
The Society has studied the recently published Report of the Constitutional Review Commission and did not agree with the manner of appointment of the Commission and believed the nation itself could have benefitted from a more educational approach.
As a result the Report often strayed into matters which have nothing to do with its mandate or the Constitution and therefore reinforced the public’s confusion and ignorance.
