Kutlo Motseta
10th October 2024
They are many unemployed Information Technology (IT) graduates in Botswana, yet strangely, there are many complaints about cyber-criminal activities.
Cyber-crime is a new field in Botswana and perhaps it is appropriate to consider establishing a special cyber complaints court and permit IT graduates to represent parties in court as non-lawyers are entitled to in the Labour High Court.
There are at least three instances in law when a lawyer does not need to have the qualifications ordinarily held by attorneys and advocates to practice law in the local courts. Firstly Magistrates, secondly, prosecutors who are appointed at the discretion of the Director of Public Prosecutions (DPP) and thirdly legal representatives at the Labour High Court.
The DPP already has the discretion to enable anyone to appear for the State in terms of section 51 of the Constitution of Botswana, thus the DPP can relieve the public in this regard.
However, in terms of the Legal Practitioners Act, if the defense opts for legal representation a court, he or she must be represented by an attorney or advocate who is admitted and enrolled in the High Court of Botswana unless the matter is heard before the Labour High Court.
The issue of standardized qualifications in the private practice is existent and necessary to control unsupervised, incompetent and unknown people setting up shops and harming public interest.
This problem does not arise with state prosecutors and magistrates as they fall under the auspices of the DPP and Regional Magistrates respectively and carry out most of their duties in open courts as is the nature of litigation.
There are many cyber complaints but you do not hear of many cases that have been settled by the courts, as is evident from the Botswana Law reports.
In view of this, it is opportune to consider establishing a Cyber Complaints Court, which is operates similarly to the Labour High Court with regard to rights of representation. The latter has a less stringent legal procedure than other courts to enable non-lawyers to prosecute cases without hindrance of technical legal procedures of the Magistrate and other High Courts.
There are few lawyers that have a solid Information Technology background, thus IT Graduates may do a better job than non-computer trained lawyers in disposing of cyber complaint cases.
Many cyber lawyers in more economically advanced jurisdictions have computer training alongside a law degree, because technology is dissimilar to law and has to be learnt separately. Training in law is as different to technology training as Greek is to Chinese.
Setting up these courts will not necessarily come at a high cost to government. New courts do not need to be built as court can be formed at any site that a presiding officer deems fit.
There is a humorous case in which the legality of a judge’s decision raised eyebrows after he made a ruling from the comfort of his bathtub. The point of this example is to show the possibilities the law can reach in order to administer justice and that where there is a need, the law can be flexible to ensure that the public does not suffer unnecessarily to combat growing cyber complaints.
In view of rising cyber crime a bill ought to be considered to assist the State and public to practically deal with cyber complaints.
