University of Botswana Law Journal - PULP

UNIVERSITY OF BOTSWANA LAW JOURNAL
The University of Botswana Law Journal is a peer refereed journal published twice a year. It provides a forum
for scholars and practitioners to reflect on diverse legal issues of national, regional and international significance
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PATRON
The Hon. Justice Nganunu, Chief Justice of Botswana.
INTERNATIONAL EDITORIAL ADVISORY BOARD
Prof. D. D. N. Nsereko, Judge, International
Criminal Court, The Hague, The Netherlands
Prof. W. Du Plessis
Faculty of Law, North-West University
(Potchefstroom Campus), South Africa.
Prof. T. Maluwa
H. Laddie and Linda P. Montague Professor of Law,
Dickinson School of Law, Penn. State University,
USA.
Prof. M. Reisman
Myres McDougal Professor of Law, Yale Law
School, New Haven, USA.
Prof. K. Frimpong
Ghana Institute of Management and Public
Administration, (GIMPA), Accra, Ghana
Prof. S. Roberts
Department of Law, London School of Economics,
United Kingdom.
Prof. A. McCall Smith
Edinburgh Law School, University of Edinburgh,
United Kingdom.
Prof. C. Forsyth
Faculty of Law, Robinson College, University of
Cambridge, United Kingdom.
Prof. B. Othlogile
Vice Chancellor, University of Botswana.
Dr. A. Molokomme
Attorney-General, Botswana.
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Prof. Peter Takirambudde
Editor-in-Chief, University of Botswana.
Mrs. E. Macharia-Mokobi
Secretary, University of Botswana.
Dr. K. Solo
University of Botswana.
Prof. C. Ngongola
University of Botswana.
Prof. J. Kiggundu
University of Botswana.
Prof. E. K. Quansah
University of Botswana.
Dr. O. B. Tshosa
University of Botswana.
Mr. T. Sebego
Vice chairman, Law Society of Botswana
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ISSN 1817-2733
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Washington, D.C.

UNIVERSITY OF BOTSWANA LAW JOURNAL
VOLUME 11 DECEMBER 2010
ARTICLES
Foreign Aid, the Rule of Rule of Law, and Economic Development.........3
in Africa
N.A.Curott
Paradigm Shifts in International Justice and the Duty to Protect: ............19
In Search of an Action Principle
P. Glen
The Right to Maternal Health Care: Developing International ................39
Human Rights Law to Prevent Maternal Mortality
L. S. Johnson
Between Judicial Enabling and Adversarialism: The Role of ..................81
the Judicial Officer in Protecting the Unrepresented Accused
in Botswana in a Comparative Perspective
R.J.V. Cole
Competition and Regulation in the Gold Industry:.................................117
An American Perspective
J. Wilkerson
Procurement Law in Nigeria: Challenge for Attainment........................131
of its Objectives
O.A. Jacob
COMMENTS
Principled Leadership: Finding Common Ground Among.....................153
Divergent Philosophies
V.D. Lopez JD
MTN & Airtel’s African Tryst: The Legal Angle ..................................159
S.V. Adithya Vidyasagar
Limits of Fair Dealing with Literary Works in India..............................169
A. Goel

2 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
RECENT LEGAL DEVELOPMENTS
Lesotho - Q. Letsika .....................................177
- L. Kometsi
Zimbabwe - J. Pfumorodze ..............................185

3
ARTICLES
Foreign aid, the rule of law, and economic development in
Africa
ABSTRACT
N.A. Curott*
Foreign aid has failed to bring about any significant development results in the
poor countries of Africa in over sixty years of existence. The failure of aid is
due to the fact that development planning faces an insurmountable calculation
problem. Attempting to salvage aid by making it more selective does not
address this problem, and will not make aid effective. Aid by its very nature
causes waste, corruption, politicization, privilege seeking, and statism, all of
which are detrimental to economic development. Instead of relying on aid,
African economies should occupy themselves with creating legal institutions
that are commensurate with the protection of private property and the Rule of
Law, which are foremost among the institutions necessary for sustainable, long
run economic growth.
1. INTRODUCTION
In the sixty years since its inception, foreign aid has failed to bring about any
significant economic development in the poor countries of Africa. This fact has
caused many analysts to criticize the internal workings of foreign aid
administration in recent years, but they rarely question the actual potential of
foreign aid to lift poor countries out of poverty. Instead, the political
establishment calls for ever more aid: The United Nations recommended in
January of 2005 that the total amount of aid to Africa should be doubled by
2010, 1 while Official Development Assistance from the U.S. to Africa has
tripled since President Bush took office in 2001, 2 and it is likely that the new
Millennium Challenge Account will increase cash grants to poor African
countries. British Prime Minister Tony Blair has recently been a leading
champion of foreign aid and debt forgiveness, and advocates doubling aid to
Africa. The strategy of the IMF and the World Bank for development also
includes increasing the flow of aid to developing countries. 3 It is widely
* Mercatus Center at George Mason University, 4400 University Drive, Fairfax, VA U.S.
ncurott@gmu.edu.
1 UN Millennium Project, Investing in Development: A Practical Plan to Achieve the Millennium
Development Goals (New York: United Nations Development Programme, 2005).
2 International Development Statistics, http://oecd.org.
3 Global Monitoring Report 2006: Millennium Development Goals: Strengthening Mutual Accountability,
Aid, Trade, and Governance (World Bank Publications, 2006).

4 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
believed by policy makers that increasing foreign aid will achieve the
millennium development goal of a fifty percent reduction in poverty by 2015.
The widespread advocacy of foreign aid is remarkable considering
its failure to produce any sustained development in the past. This study
investigates whether the new round of foreign aid spending is likely to be
effective at reducing poverty in Africa, and finds that both economic history
and economic reasoning suggest that it will not. The article then considers
what alternatives exist to foreign aid. Since the protection of private property
and the Rule of Law are foremost among the institutions necessary for
sustainable, long run economic growth, the article concludes that those
interested in the development of African economies should occupy
themselves with creating legal institutions that are commensurate with the
Rule of Law.
2. THE FAILURE OF FOREIGN AID
Reducing poverty is a noble goal, but past experience shows that merely
increasing foreign aid funding won’t bring about development, and may even
impede it. Foreign aid’s track record is dismal, and economists no longer deny
that Western development aid to Africa has been ineffective. The prevailing
consensus among economists is that previous aid policies have not worked
very well. Approximately $568 billion in foreign aid has been poured into
Africa, 4 with little development to show for it. Countries that were given the
most aid, including Liberia and Somalia, have actually experienced negative
economic growth. 5 Income per capita throughout Africa has completely
stagnated since the inception of foreign aid. 6 Thus many analysts have come to
question the effectiveness of aid in the first place. 7
Still, the political establishment generally calls for more foreign aid.
They argue that foreign aid is necessary for three reasons – (1) it promotes the
political interests of the givers, 8 (2) it is necessary for providing humanitarian
relief in times of emergency, and (3) it is necessary for eliminating poverty.
The first two justifications of foreign aid, while perhaps relevant, are beyond
4 W. Easterly, Freedom versus Collectivism in Foreign Aid, in J. Gwartney and R. Lawson, Economic
Freedom of the World: 2006 Annual Report 34 (Fraser Institute, 2006).
5 World Bank, World Development Indicators Online, http://www.worldbank.org. In the case of Somalia
there is evidence that conditions have actually improved since the complete collapse of the national
government in 1991. See B. Powell, R. Ford and A. Nowrasteh, Somalia After State Collapse: Chaos or
Improvement? Independent Review Working Paper Number 64.
6 Ibid.
7 See, for example, J. Morton, The Poverty of Nations: The Aid Dilemma at the Heart of Africa (British
Academic Press, 1994).
8 A large portion of foreign aid has always been earmarked for the advancement of Western political
interests, in particular toward stopping the spread of communism. See P. T. Bauer, The Development
Frontier: Essays in Applied Economic (Harvard University Press, 1991) p. 42. More recently, foreign aid
is being used in an attempt to prevent terrorism. See USAID, Policy Framework for Bilateral Foreign Aid
(2006) for the current US policy on bilateral foreign aid.

FOREIGN AID, THE RULE OF LAW AND ECONOMIC DEVELOPMENT IN AFRICA 5
the scope of this investigation, which deals with the effectiveness of foreign
aid in bringing about economic growth and prosperity for those countries
which receive it. 9 The elimination of poverty requires the higher levels of
income that come with economic growth and development, and the best hope
for the impoverished masses in the third world to improve their well being lies
in economic growth. The reason is that economic development is essential to
human welfare.
Although well-being is a subjective concept that cannot itself be
measured, proxies such as income, life expectancy, educational opportunities,
literacy, and nutrition can serve as reasonable estimates. Statistical studies
show that economic development is a very significant factor in determining
many desirable well-being indicators. 10 A productive economy is necessary
for creating an environment in which individuals are capable of developing
their faculties and can peacefully pursue meaningful and fulfilling lives. One
should ultimately ask, then, does foreign aid “work?” Is foreign aid capable of
lifting poor countries up out of a cycle of poverty, onto a higher plain of
economic development? Economic reasoning and historical evidence suggest
that the answer to this question is a resounding “no.”
A. Foreign Aid is Not Necessary for Development
The original economic argument for foreign aid was that third world
development would be impossible without it. 11 This line of thinking holds that
people in under-developed countries are simply too poor to save any money, so
they never have a pool of funds available for creating the capital formation that
is necessary for economic development. According to this view, foreign aid
can help them break out of this trap and get on the path to sustainable long-term
economic growth by providing the funds necessary for capital investment.
The facts of history, however, strongly refute the notion that poor
countries need foreign aid to break out of poverty. For starters, the first
nations to develop, such as England, achieved economic growth and
development without foreign aid. If foreign aid were really necessary for
9 It should be noted, however, that although humanitarian assistance programs are usually defended on the
grounds that they have intrinsic humanitarian value, in the long run they often create more problems than
they solve. Even a program as seemingly unobjectionable as food aid has had many unintended but
harmful consequences in Africa, including disrupting local markets and putting local producers out of
business. See J. Bovard, The Continuing Failure of Foreign Aid, Cato Policy Analysis No. 65 (1986); D.
Osterfeld, Prosperity Versus Planning (Oxford University Press 1992) p. 142. More importantly, even
when successful, humanitarian assistance programs are only temporary alleviations for those in extreme
need. They do nothing to fix the underlying problem, which is the human suffering associated with
extreme poverty.
10 See P. J. Boettke & J. R. Subrick, Rule of Law, Development and Human Capabilities, 10 Supreme Court
Economic Review 109 (2002).
11 This theory, known as the “vicious cycle of poverty,” is still the leading justification for foreign aid today.
Economist Jeffrey Sachs is now its leading proponent; see J. D. Sachs, The End of Poverty: How We Can
Make it Happen in Our Lifetime (Penguin Books, 2005). For a refutation of this poverty trap theory see P.
T. Bauer, Dissent on Development (Harvard University Press, 1972) pp. 31-38.

6 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
development, then no country could have developed to begin with. Then there
are also many recent examples of countries, such as South Korea and Taiwan,
which began to develop only after they stopped receiving large-scale
economic aid. 12
Moreover, examination of the relevant data also undercuts the theory
that foreign aid is necessary for economic development. Recent studies have
taken to task conventional foreign aid wisdom, as represented by the
“Financing Gap” approach. Developed by World Bank economists, the
“Financing Gap” approach assumes that the amount of economic growth a
country experiences is proportional to the level of investment. 13 Thus, if poor
countries are not investing enough to achieve a target output, foreign aid could
make up for the shortfall, ensuring enough investment for economic growth.
Experience has failed to validate the assumptions of the “Financing Gap”
approach. A number of empirical studies show that there is no statistical
correlation between economic growth and official levels of investment. 14 This
finding implies that foreign aid for investment is not a sufficient condition for
economic growth. Furthermore, in countries where economic growth has
occurred, only six percent had increased the amount of investment by the
amount required according to the finance gap models. This casts serious
doubts on any simplistic model relating economic growth to investment. 15
Additionally, dozens of econometric studies on the relationship between
foreign aid and economic growth reveal no conclusive evidence that the level
of aid is correlated with the amount of growth in recipient countries. 16
B. Why Aid is Ineffective and Harms its Recipients
Studies of economic data and statistics have resoundingly shown that foreign
aid has not brought about the expected economic growth in recipient countries.
One must now ask, why hasn't foreign aid worked? Indeed, can foreign aid
work, within the constructs of economic reasoning? A vast body of literature
tells us no, and for the following reasons. First, foreign aid handouts are not
subject to the “market test” of profit and loss, thus they are wasted rather than
being put to productive use. Second, foreign aid creates “perverse incentives,”
12 M. Krauss, Development without Aid (New Press, 1983) p. 190.
13 See W. Easterly, The Elusive Quest for Growth: Economists’ Adventures and Misadventures in the
Tropics (MIT Press, 2001) pp. 28-37.
14 Ibid., 39-42; M. Blomstom et al., Is Fixed Investment the Key to Economic Growth?, 111 Quarterly
Journal of Economics 269 (1996).
15 See Easterly, note 13 above, p. 40. This isn’t to say that investment in capital isn’t crucial for economic
development. What is important is the right kind of investment, which government aid programs lack the
knowledge and incentive to provide. Easterly goes too far in rejecting the importance of investment
altogether.
16 A number of recent studies have found that aid fails to systematically improve growth rates. See P.
Boone, Politics and the Effectiveness of Foreign Aid, 40 European Economic Review 289 (1996); I.
Vasquez, Official Assistance, Economic Freedom, and Policy Change: Is Foreign Aid Like Campagne?,
18 Cato Journal 275 (1998); T. Ovaska, The Failure of Development Aid, 23 Cato Journal 175 (2003).

FOREIGN AID, THE RULE OF LAW AND ECONOMIC DEVELOPMENT IN AFRICA 7
entirely antithetical to economic growth and development, amongst those who
receive it. Finally, foreign aid, by subsidizing corrupt regimes, empowers
dictators and begets increased corruption and repression of the poor masses it
aims to help. Despite its noble intentions, foreign aid is doomed to failure for
these systemic reasons, which shall now be examined in further detail.
Foreign Aid Lacks Market Signals
Under market capitalism, entrepreneurs evaluate possible investment projects
on the basis projected return- “i.e.”, will the investment be profitable? 17
Entrepreneurs stake their own funds, or borrowed funds for which they are
ultimately liable, on these investments, thus they have strong incentive to “get
it right,” “i.e.” to avoid bad investments that won't pay off. Of course,
entrepreneurs can and do fail in this regard; they frequently lose money in what
turn out to be unprofitable investments and face the prospect of going out of
business. Entrepreneurs who repeatedly fail will ultimately lose their funding,
whether it be their own money, bank credit, or shareholders' equity. In general,
successful entrepreneurs, those who do the best job of satisfying consumers
and thereby winning their business, are rewarded with profits, and
unsuccessful entrepreneurs, who waste resources, are “fired” by the
consumers. In contrast, the bureaucrats and government officials responsible
for “investing” foreign aid dollars face no such market test, and hence have no
such incentive to make the best investment choices. 18 As long time aid
practitioner Thomas Dichter has noted: “Whereas a large corporation cannot
lose money forever without facing some consequences, the aid industry has
gone on for 60 years with hardly anything to show for the two trillion dollars it
has spent (something it does not really bother to deny), and yet it is still very
much in business.” 19 The primary incentive of World Bank bureaucrats is to
spend as much money as possible, not to ensure it is effectively spent.
Consequently, billions of dollars have been siphoned into inefficient, and
unproductive, and capital-intensive projects such as the construction of damns,
oil refineries, airports, and crop-storage depots. 20 Many of these projects are
unsustainable, and have to be abandoned. A 2000 report found that 73 percent
of the projects undertaken in Africa that year by the World Bank were not even
17 For a more detailed explanation of the entrepreneur’s role in the market economy, see I. Kirzner,
Competition and Entrepreneurship (University of Chicago Press, 1973).
18 For an explanation of the different incentives that private and public decision makers face, see L. V.
Mises, Bureaucracy (Yale University Press, 1944).
19 T. Dichter, Time to Stop Fooling Ourselves about Foreign Aid: A Practitioner’s View, Cato Institute
Foreign Policy Briefing No 86 (2005).
20 See D. Osterfeld, note 9 above, p, 150; G. B. N. Ayittey, Aid For Black Elephants: How Foreign
Assistance Has Failed Africa, in D. Bandow & I. Vasquez ed., Perpetuating Poverty (Cato Institute,
1994).

8 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
a success by their own standards. 21 Investments in education and AIDS
prevention have been equally ineffective. 22 No matter how noble the
intentions, nor how vast the pocketbook of the foreign aid establishment, it
cannot get around the fact that it lacks the discipline imposed by the profit and
loss test. In fact, without the information generated by market price signals,
there is no way to make rational choices about where to allocate resources. 23
In the absence of property ownership and the competitive process of market
exchange, it is impossible to determine the true opportunity cost of investment
decisions. Thus it should come as no surprise that the vast majority of foreign
aid dollars are wasted. Development planners face a fundamental and
unsolvable economic calculation problem. And since there is no telling
whether foreign-aid funded investments make economic sense, how can
anyone expect foreign aid to yield economic growth?
Foreign Aid Perverts the Incentive Structure of Recipients
Not only has the foreign aid establishment largely ignored this “market test”
idea, but they have ignored the broad incentive structure that foreign aid creates
for the government and the people in recipient countries. Foreign aid amounts
to a subsidization of poverty in third-world countries, and when you subsidize
something, you get more of it. To be a well-qualified candidate for foreign aid
payments, a country must be full of impoverished people and show weak or
non-existent economic growth. Yet foreign aid payments do not go into the
hands of the impoverished masses, they go into the hands of government
officials, who then decide how the money is spent. Thus government officials
have little incentive to enact policies amenable to economic growth, and much
incentive to retain the status quo ante of grinding poverty, in order to show their
rich Western benefactors that they need ever greater foreign aid handouts. In
addition, foreign aid has enabled many African governments to engage in
policies harmful to growth, such as economic regulations, confiscation of
property, and suppression of trade. 24 Perhaps the most pernicious effect of
foreign aid is that the money has been used by ruthless and tyrannical dictators
in Africa to suppress their own people. 25 These are long-standing policies and
cannot be attributed to mistakes on the part of well-intentioned governments.
They are defects inherent in the aid system itself.
21 International Financial Institution Advisory Commission (Meltzer Commission), Report to the U.S.
Congress and the Department of the Treasury (March 8, 2000).
22 See Easterly, note 13 above.
23 The Austrian economist Ludwig von Mises was the first to explain why market prices are necessary for
rational economic calculation. See L. V. Mises, Economic Calculation in the Socialist Commonwealth, in
F. A. Hayek, ed., Collectivist Economic Planning (G. Routledge & Sons, 1935).
24 See Bauer, note 8 above, p. 46.
25 See G. B. N. Ayittey, Africa in Chaos (St. Martin’s Press, 1998); M. Maren, The Road to Hell: The
Ravaging Effects of Foreign Aid and International Charity (Free Press, 2002).

FOREIGN AID, THE RULE OF LAW AND ECONOMIC DEVELOPMENT IN AFRICA 9
Foreign aid also harms it recipients by creating perverse incentives
for ordinary workers. The impoverished masses, in order to have a shot at
participation in the foreign aid bonanza, have strong incentives to align
themselves with the political factions that have control of the money. Thus it
comes as no surprise that many poor African countries are characterized by an
unusually high intermingling of private and political life. 26 Aid puts more
resources at the disposal of the governments, and therefore increases its power
vis-à-vis the rest of society. One consequence is that peoples’ affairs tend to
be diverted from economic activity (“i.e.” wealth creation) to politics. 27 This
undermines the productivity of an economy because resources are shifted
from productive activity into seeking political favor and privileges. 28
Enormous sums of money have also been lost because of the
widespread corruption in African governments. 29 And even worse, aid
actually promotes corruption by providing resources that are fought over by
interest groups and factions. 30 If the only downside to aid were that much of it
is lost and wasted, perhaps it would still be desirable. After all, some aid is
better than none. But aid has had many deleterious effects in the recipient
countries. The very term “aid” is misleading because it implies that it actually
helps the recipients. In this way it prejudices debate in the favor of more aid.
In actuality aid is a government-to-government subsidy, and must be judged
by the overall effects that this subsidy produces. Aid does not go directly to
the impoverished African masses. In the long run it will only help the poor if it
leads to development, which, as we have seen, it has not, and indeed cannot in
the light of economic reasoning.
C. The New Debate on Foreign Aid
The combination of waste, corruption, and rent seeking all combine to explain
why aid has not contributed to economic growth. The manifest failure of aid
programs to achieve their intended goals and the corruption they have
engendered has caused the World Bank to recognize the importance of the
26 Bauer long contended that aid increases the size and scope of recipient governments, contributes to the
politicization of life, and is an anti-market force. See, for example, Bauer, note 8 above. A statistical
examination of the relationship between economic freedom and the amount of development aid is treated
in B. Powell and M. Ryan, Development Aid and Economic Freedom: Are they Related? Forthcoming,
Journal of Private Enterprise.
27 See W. Baumol, Entrepreneurship: Productive, Unproductive, and Destructive 98 Journal of Political
Economy 893 (1990).
28 In economics, the process by which individuals attempt to gain through manipulation of the political
environment instead of through trade and the production of added wealth is called rent seeking. This idea
was first developed in G. Tullock, The Welfare Costs of Tariffs, Monopolies, and Theft, 5 Western
Economic Journal 224 (1967). The term rent seeking was introduced by A. O. Krueger, The Political
Economy of the Rent-Seeking Society, 64 American Economic Review 291 (1974).
29 For a general account of corruption in Africa, see J. M. Mbaku, Bureaucratic and Political Corruption in
Africa: The Public Choice Perspective (Krieger Publishing Company, 2000).
30 See J. Svensson, Foreign Aid and Rent-Seeking, 51 Journal of International Economics, 437 (2004); A.
Alesina & B. Weder, Do Corrupt Governments Receive Less Foreign Aid?, 92 American Economic
Review 1126 (2002).

10 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
recipient countries’ policies. An influential paper by Burnside and Dollar has
provoked a new debate about the effectiveness of aid. 31 It claims that while aid
has not caused a systematic improvement in living standards, it has promoted
economic growth when given to countries with good policies and governance.
These findings are overly optimistic, however, and have been hotly disputed. 32
In the first place, it is difficult to define a standard of good policies
and then stick to this standard by withholding money from countries that don’t
meet it. In the past corrupt governments have not received less aid, 33 and this
is unlikely to change because it is not seen to be in the interest of donors or
recipients. Donors do not want to withhold aid money from poor countries, so
the standards for disbursement are likely to be ineffectively weak or simply
ignored. Recent history confirms this conclusion. Despite the new rhetoric of
selectivity, not much has been done to promote real reform or greater
accountability. The attempts by donors to influence the policies of recipient
countries have been half-hearted and ineffective. African leaders accept
reform reluctantly, if at all, and trying to impose institutions from the outside
in by tying aid to political performance engenders resentment and hostility
amongst its recipients. For these reasons foreign aid is unlikely to be given
selectively.
More importantly, even if foreign aid were selectively given, it
would still undermine the good policies it was meant to promote because of
the perverse incentive structure inherent in foreign aid. For the reasons
already stated above, foreign aid causes corruption, privilege seeking, and
crony statism. These effects are counterproductive for countries attempting to
implement good policies and develop the institutions necessary for economic
growth and development. The attempts to fix foreign aid are self-defeating
and will not work in practice.
3. THE RULE OF LAW AS AN ALTERNATIVE TO
FOREIGN AID
Rising out of poverty depends in the long run on economic growth. Since
foreign aid has not contributed much toward economic growth, and is not likely
to do so for the reasons explained above, it is necessary to consider the
31 C. Burnside & D. Dollar, Aid, Policies, and Growth, 90 American Economic Review 847 (2000). Other
key papers in the “new economics of foreign aid” include: P. Collier & D. Dollar, Aid Allocation and
Poverty Reduction, 46 European Economic Review (2002); P. Collier & D. Dollar, Development
Effectiveness: What Have We Learnt?, 114 Economic Journal F244 (2004).
32 Two papers that argue against the findings of Burnside and Dollar are W. Easterly, The Cartel of Good
Intentions: The Problem of Bureaucracy in Foreign Aid, 5 The Journal of Policy Reform 223 (2002); and
I. Vasquez, The New Approach to Foreign Aid: Is the Enthusiasm Warranted?, Cato Institute Foreign
Policy Briefing No. 79 (2003). In addition, several recent studies have found that aid is detrimental to
growth even for countries with good policies. See H. J. Brumm, Aid, Policies, and Growth: Bauer was
Right, 23 Cato Journal 167 (2003); W. Easterly et al., Aid, Policies, and Growth: Comment, 94 American
Economic Review 774 (2004).
33 A. Alesina & B. Weder, note 30 above.

FOREIGN AID, THE RULE OF LAW AND ECONOMIC DEVELOPMENT IN AFRICA 11
alternatives. Empirical work has found that differences in social, political, and
cultural institutions across countries are among the most important
determinants of differences in economic growth rates. The reason is that
institutions establish the framework for economic activity within a country. 34
As the late economist Mancur Olson explained, economic performance is
determined mostly by the structure of incentives that individuals face when
they make choices. National boundaries create different structures of
incentives, which determine much of the difference in wealth between
countries. 35
Good institutions create an environment that promotes
entrepreneurship, inventiveness, economic growth and development. Some of
the most important of these institutions embody what is known as the Rule of
Law. The consensus among empirical researchers is that the Rule of Law is a
key determinant of economic growth. 36 Since the Rule of Law is a significant
factor in bringing about economic development, understanding what this
entails and how it leads to development is essential for evaluating
development policy.
A. The Meaning of the Rule of Law
In recent years there has been a resurgence of interest in The Rule of Law
among legal scholars, and appeals to the Rule of Law have become frequent in
policy analysis. 37 Despite its popularity as a rhetorical device, however,
invocations of the Rule of Law are typically vague and often contradict one
another. 38 This is probably due to the fact that important scholars have
disagreed over the precise meaning of the phrase “Rule of Law,” so that several
strands of ideas have been subsumed under the same name. 39 Irrespective of
this theoretical dispute, the aspects of the Rule of Law that are important for
development are relatively straightforward.
34 For a discussion of institutional economics by a Nobel Prize winning economist, see D. North,
Institutions, Institutional Change, and Performance (Cambridge University Press, 1990).
35 M. Olson, Jr., Distinguished Lecture on Economics in Government: Big Bills Left on the Sidewalk: Why
Some Nations are Rich and Others are Poor, 10 The Journal of Economic Perspectives 3 (1996).
36 R. J. Barro, Determinants of Economic Growth: A Cross-Country Empirical Study (MIT Press, 1997); R.
J. Barro, Rule of Law, Democracy, and Economic Performance, in G. P. O’Driscoll, K. R. Holmes, M.
Kirkpatick, eds, 2000 Index of Economic Freedom 31 (Heritage Foundation and Dow Jones & Co.,
2000); S.-i-Martin, I Just Ran Two Million Regressions, Amercian Economic Review, 87 (2) (1997). For
a complete survey of studies on the relationship between economic freedom and growth, see N. Berggren,
The Benefits of Economic Freedom: A Survey, 8 Independent Review 193.
37 Cf. T. Carothers, The Rule of Law Revival, Foreign Affairs Mar/Apr 1998, Vol. 77 Issue 2 (“One cannot
get through a foreign policy debate these days without someone proposing the rule of law as a solution to
the world’s troubles.”).
38 Cf G. P. Fletcher, Basic Concepts in Legal Thought 12 (1996) (“(W)e are never really sure what we mean
by the ‘rule of law’.”), cited in R. H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional
Discourse, 97 Columbia Law Review 1 (1997). In Fallon’s estimation “Invocations of the Rule of Law
are sufficiently meaningful to deserve attention, but today are typically too vague and conclusory to dispel
lingering puzzlement.”
39 See Fallon, note 38 above, who identifies four separate ideal types that underlie different Rule of Law
based arguments.

12 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
In its simplest form, the Rule of Law is expressed eloquently by the
well-known political maxim that a nation should be under the rule of laws,
and not men. But this means not merely that the laws of the land are followed
or that everything is regulated by law. 40 If the law making authority were free
to make laws arbitrarily dictating to people their actions, this would differ in
no appreciable way from the very “rule of men” that the Rule of Law is meant
to contrast. Therefore, for the Rule of Law to prevail the laws must apply to
everyone, and those who make the law must be subject to the same legal rules
as the rest of society. More specifically, the government must be constrained
by fixed rules that are known publicly before their application, and the
discretionary abilities of those wielding the coercive apparatus of the state
must be curtailed as much as possible. Under the Rule of Law, government
cannot discriminate against individuals on an ad hoc basis. In this way the
individual has a sphere of autonomy, circumscribed by the general rules,
within which he may undertake the activities he prefers without fearing that
the government will suppress or hinder his efforts. 41
Under the Rule of Law political power can only be exercised on the
basis and within the constraints of the law, and various substantive and
procedural institutions exist to protect civic and economic liberties from
arbitrary interventions by authorities. 42 The most important procedural
institutions in a constitutional democracy are the separation of powers, an
independent judiciary, and an impartial court system. The judges should be
appointed according to a constitutional procedure and not directly by the
executive authority. In order to be impartial, the judiciary must be
independent from the executive authority and not subject to control or
manipulation. The judiciary must be able to deliberate freely, and even find
against government and its officials without having to fear reprimands or
violence.
The existence of these procedural institutions, however, is not by
itself a guarantee of the Rule of Law. Even where they exist, no country does
a perfect job of securing the Rule of Law. Critics of constitutional democracy
40 See F. A. Hayek, The Road to Serfdom (1944) p. 92 (“Anyone ready to deny this would have to contend
that whether the Rule of Law prevails today [1944] in Germany, Italy, or Russia depends on whether the
dictators have obtained their absolute power by constitutional means.”).
41 The political philosopher and Nobel Prize winning economist F. A. Hayek has aptly boiled down these
aspects of the Rule of Law into three main requirements: first, generality, “i.e.” that government is bound
by explicit legal rules so that minimum discretion is left to the arbitrary decisions of the individuals in
charge of government; second, formality, “i.e.” that these rules are announced and can be known
beforehand by all members of society, leaving the individual free to pursue his own ends within these
parameters without fearing deliberate acts of coercion by the government; and last, equality, “i.e.” that
these rules apply equally to all people, such that no one is without the protection of the legal system and
no one is above the law. See F. A. Hayek, note 40 above, p. 72-84 (1944); The Constitution of Liberty
(1960).
42 See W. Kasper & M. E. Streit, Institutional Economics, 165ff. (Edward Elgar, 1998).

FOREIGN AID, THE RULE OF LAW AND ECONOMIC DEVELOPMENT IN AFRICA 13
have even argued that the Rule of Law under government is impossible. 43
Under this view, only market, or non-politically chosen law that emerges
spontaneously from the actions and decisions of free individuals can be
consistent with the Rule of Law. 44 Be this as it may, it is clear that some
governments come much closer to achieving the ideal than others. The degree
to which the legal structure functions properly to secure the Rule of Law varies
greatly among countries. 45 These differences have had a great impact on
economic growth rates because the Rule of Law is necessary for securing
private property rights and economic predictability.
B. The Rule of Law and Economic Development
Governance under the Rule of Law is restricted to formal rules that tell people
beforehand what actions will be taken by government in a certain situation.
These rules allow individuals to plan their affairs with reasonable assurance as
to how the state will use its coercive powers. This predictability makes
economic activity much more effective. In the words of Hayek: “If the
individuals are to be able to use their knowledge effectively in making plans,
they must be able to predict actions of the state which may affect these
plans.” 46 Successful entrepreneurship in particular requires a stable legal
environment. As economist Peter Boettke has explained, it is “… the rule of
law [that] provides us with the stability and predictability in economic affairs
required for agents to engage in entrepreneurial action – both in terms of
exploiting existing opportunities for profit through arbitrage and the discovery
of new profit opportunities through arbitration.” 47 Since the essence of
entrepreneurship is alertness to profit opportunities that satisfy the desires of
consumers, the more successful entrepreneurship there is the more consumer
desires will be satisfied and the more economic growth there will be. 48
Under the Rule of Law the laws must be stated clearly without
reference to particular individuals or groups. The generality and formal nature
of the laws prevent discretionary and ad hoc economic policies that inhibit
43 See J. Hasnas, The Myth of the Rule of Law, Wisconsin Law Review 199 (1995). (“The fact is that there is
no such thing as a government of law and not people. The law is an amalgam of contradictory rules and
counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any
desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the
political ideology of those invested with decision-making power.”)
44 Order under the law without government is discussed in E. Stringham, Market Chosen Law, 14 Journal of
Libertarian Studies 53 (1999). Evidence for the superiority of a spontaneously ordered Rule of Law
without political provision is given in B. Benson, The Enterprise of Law: Justice without the State
(Pacific Research Institute, 1990).
45 The extent of the Rule of Law is measured in J. Gwartney & R. Lawson, Economic Freedom of the
World: 2006 Annual Report (Fraser Institute, 2006).
46 Hayek, note 40 above at p. 84.
47 Boettke & Subrick, note 10 above.
48 The satisfaction of consumer desires is the essence of entrepreneurship; see I. Kirzner, note 17 above.

14 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
entrepreneurship and economic growth. Private property rights are protected
in this way from being violated by government officials or arbitrary laws.
Individuals who are not secure in their property lack the incentive to
undertake investment or engage in entrepreneurship. Individuals and
businesses must be confident that their efforts will not be wasted before they
will engage in commerce, save income, and make long-term plans. The Rule
of Law provides a stable system of protection within which people can engage
in economic activity and have the incentive to do so. Investors are particularly
concerned about the prevalence of law and order, the burdens of arbitrary
regulation, and the possibility of expropriation. The amount of investment in
countries without the security provided by the Rule of Law is severely
restricted, limiting the possibility of economic expansion.
A well functioning legal system is also a key determinant of capital
accumulation. An ever growing capital structure is essential for a vibrant,
growing economy. Hernando De Soto, in his groundbreaking work, “The
Mystery of Capital,” argues that the degree of capital formation in an
economy depends largely on a country's legal system, specifically, how easy
or difficult is it for a landowner to establish clear, recognized legal title to his
land. 49 For only with clear, legal title, De Soto argues, can small-time
landowners, who comprise a large component of every economy, “capitalize”
on their land, their main asset, and become able to acquire the funds and tools
that they need to be more productive and to contribute to further capitalization
of the larger economy.
No country can develop without economic freedom and the
protection of private property rights. The Rule of Law, by providing the
framework for protecting private property and individual freedom, creates the
stability and predictability in economic affairs necessary to promote
entrepreneurship, saving and investment, and capital formation. It is
nonsensical to expect that foreign aid will lead to economic development in
Africa without addressing the institutional factors, such as the lack of Rule of
Law, which are responsible for Africa’s failure to develop in the first place.
4. EMPIRICAL EVIDENCE
In our consideration of the role that a well functioning legal system plays in
protecting private property rights we have seen that the Rule of Law should be
an important determinant of economic performance. It is obvious from simple
observation that countries that secure the Rule of Law have much more
productive economies than those that do not. This everyday experience is
formalized and confirmed by evidence from the Fraser Institute’s economic
49 H. De Soto, The Mystery of Capital, (Basic Books, 2000).

FOREIGN AID, THE RULE OF LAW AND ECONOMIC DEVELOPMENT IN AFRICA 15
freedom report, Economic Freedom of the World. 50 Area 2 of the Fraser index,
Legal System & Property Rights, provides an annual estimate of the realization
of the Rule of Law principle in 123 countries. Countries are ranked according
to the security property rights, the independence of the judiciary, and the
impartiality of the court system. The scale ranges from a score of one for
countries with no Rule of Law up to a score of ten for countries that perfectly
secure the Rule of Law for all of its citizens.
Chart 1 divides the Fraser index scores for 121 countries in 2004 into
quintiles and compares them with the average level of GDP per capita,
measured by the World Bank according to the Atlas method. 51 The countries
in the top quintile of the Legal System and Property Rights scores had an
average per capita income of $29,122 in 2004, while those in the bottom
quintile averaged only $2561. The chart bellow shows a strong relationship
between the Rule of Law and per capita income.
Relation Between Rule of Law and GDP Per-Capita
GDP/CA
35000
30000
25000
20000
15000
10000
5000
0
Top 2nd 3rd 4th Bottom
Legal System and Property Rights Quintiles
This snapshot view of the relationship between the Rule of Law and
GDP per capita is reinforced by data from the Heritage Foundation’s Index of
Economic Freedom. 52 The index ranks the security of private property on a
score from 1, being the best, to 5, the worst. In a sample of 143 countries for
2004, those that had a property score of 1 averaged $30,505, while those
countries with a score of 5 averaged only $2,953.
50 Gwartney and Lawson, note 45 above.
51 Income statistics are from the World Bank (2005): GDP per capita 2004, Atlas method and PPP, World
Development Indicators database, World Bank, www.worldbank.org./data/wdi/.
52 The Heritage Foundation & Wall Street Journal, Index of Economic Freedom: 2006 Annual Report
(Heritage Foundation, 2006).

16 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Relation Between Property Rights and GDP Per-Capita
GDP Per/C
35000.0
30000.0
25000.0
20000.0
15000.0
10000.0
5000.0
0.0
1 2 3 4 5
Property Score
We can glean from these statistics that there is a strong relationship
between the status of a country’s economic development and how well private
property is protected in that country and the extent to which there is Rule of
Law. But the fact that the Rule of Law and development go hand in hand does
not establish which one causes which, or if they aren’t both the result of
something else entirely. 53 Deduction and economic reasoning, however, tell
us that the security of private property and the Rule of Law are primary causes
of economic growth. Econometric studies that survey the historical evidence
demonstrate and support economic theory, and find that the Rule of Law is an
important determinant of economic growth. 54
These generalized findings have been reinforced by individual case
studies of African countries. Of particular interest is the recent economic
success story of Botswana. For many years Botswana has been one of the
world’s fastest growing economies, with an average economic growth rate of
7.7 percent. 55 Without much foreign aid, and in the absence of a large state,
Botswana has gone from being the third poorest nation of the world in 1965 to
an upper middle income nation today. In an important new case study,
economist Scott Beaulier has found that the Rule of Law and comparatively
free economic institutions are the major explanations for Botswana’s greater
success at economic development than other African countries.
53 Existing studies have established the correlation between components of economic freedom, including the
protection of property rights and the Rule of Law, and economic growth, but they have not fully
established the arrow of causation. See J. W. Dawson, Causality in the Freedom-Growth Relationship, 19
European Journal of Political Economy 475.
54 See references cited in note 36 above. A recent study decomposing the effects between economic freedom
and growth concludes that the component of economic freedom that is significant and has the largest
effect on growth is the Legal Structure and Security of Private Ownership. F. Carlson & S. Lundstrom,
Economic Freedom and Growth: Decomposing the Effects, 112 Public Choice 335 (2002).
55 S. Beaulier, Look Botswana: No Hands! Why Botswana Should Let the Country Steer Itself, in B. Powell
ed., Making Poor Nations Rich: Entrepreneurship and the Process of Development (Stanford University
Press, Forthcoming).

FOREIGN AID, THE RULE OF LAW AND ECONOMIC DEVELOPMENT IN AFRICA 17
The sum of this historical evidence points strongly to the conclusion
that the Rule of Law is an essential prerequisite for development to take place
in Africa. Poor African nations must follow the example of Botswana, and all
of the nations that have achieved development, by establishing the protection
of private property rights and the Rule of Law. A well functioning legal
system is a prerequisite for economic development, without which the poor
countries of Africa cannot hope to rise out of poverty.
5. CONCLUSION
Foreign aid has been completely ineffective at bringing about development in
impoverished nations. A great deal of foreign aid money has been wasted on
inefficient and unproductive investments. This waste is not surprising because
those in charge of the funds are not subject to the profit and loss test of the
marketplace. Given this fact, it is hard to imagine how future aid programs
might turn out any better. A great deal of aid money has also been given to
tyrannical governments that have used it to suppress and violate the rights of
their own subjects. The grave defects of the aid system and the magnitude of
the harm that it has caused should cause any well meaning individual to
question the logic of the political establishment that is calling for the expansion
of aid programs and greater foreign aid spending. Attempting to salvage
foreign aid by making it more selective will not fix the problems inherent in
foreign aid or make aid effective in bringing about economic development. Aid
by its very nature causes waste, corruption, politicization, privilege seeking,
and statism, all of which are detrimental to economic development.
What countries need for development is an institutional framework
that encourages entrepreneurship, hard work, saving, investment and capital
accumulation. The institution of private property creates the incentive for
individuals to carry out productive economic activity. The Rule of Law
establishes a framework in which property rights are respected and enforced.
Economic reasoning therefore suggests that the Rule of Law should be an
important determinant of economic development. This theory is supported by
historical evidence, which shows a strong relationship between countries that
secure the Rule of Law and their rate of economic growth. Foreign aid
undermines the Rule of Law by engendering corruption and diverting energy
from productive to counterproductive endeavors, and therefore undercuts the
process of development that it is meant to bring about.
The poor nations of Africa remain undeveloped because they lack an
institutional environment conducive to economic progress. Suboptimal
institutional arrangements have become locked-in, so to speak, and in order to
get on the path to sustainable economic growth they must be replaced with
institutions that inculcate respect for private property and the Rule of Law.

18 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Reform efforts, however, should be approached with caution. Simply
earmarking foreign aid funds for Rule of Law reform, for example, will
probably have little positive impact because institutions grafted on
exogenously are unlikely to stick. In order to stick, an institutional change
must be rooted in the informal practices and expectations of the indigenous
population, and be compatible with their prevailing culture and norms. For
this reason, it is unlikely that aid can provide the appropriate shock to the
indigenous institutional regime to help them break out of their current
institutional trajectory. Indeed, most underdeveloped nations in Sub-Saharan
Africa remain mired in poverty despite recent attempts to exogenously
introduce institutional change. For Rule of Law reform to be successful, an
amenable cultural climate is an essential prerequisite. Therefore, recognizing
and articulating the importance of the Rule of Law is at least an important first
step because attempts to impose institutional reform without widespread
support are premature and likely to fail.
The entire mindset of central planning, even for Rule of Law reform,
needs to be dropped. Instead, effort should be spent trying to discover
mechanisms that effectively constrain predatory government and make it
possible for poor nations to get past stakeholder problems. The population and
the political leaders must support and devise mechanisms based on their own
indigenous institutions to coordinate around new rule changes and usher in a
Rule of Law regime. Development planning merely interferes with individual
decision making (individual planning) and the natural evolution of market
institutions. Ill-conceived development planning, such as foreign aid,
undermines the foundation that makes development possible.
The answer to poverty is not foreign aid, which does more harm than
good. What is needed instead is an institutional environment that unleashes
the creative energy of a society. Economic development depends upon the
attitudes of the individual citizens and the conduct of their government. When
individuals have freedom, their natural drive to improve their own lives brings
about the process of economic development. If the impoverished masses of
the third world want living standards comparable to the people in the west,
they must adopt the institutions of Western civilization that make such wealth
possible. If individuals in developed countries want to help those in poor
countries get out of poverty, they must convince them to adopt the necessary
institutions, such as the Rule of Law, and help them devise mechanisms to
secure it.

19
Paradigm shifts in international justice and the duty to
protect; in search of an action principle
ABSTRACT
P. Glen*
This article places the emerging “responsibility to protect” within the
historical development of international human rights and criminal law, while
also attempting to more fully theorize the responsibility to ensure that it can be
a basis for action in the face of a state’s commission of atrocities against its
citizens. The main point of departure concerns the issue of “right authority” at
that point in time when a coercive intervention is justified. Rather than rely
solely on the Security Council in these situations, this article contends that
unilateral and multilateral action must be countenanced by a fully theorized
“responsibility to protect.” Such action is the only likely action to be taken in
many circumstances, on account of the self-interest of Security Council
members and general apathy towards intervention in the United Nations.
There are solid legal and policy grounds for permitting such interventions and
no compelling arguments to the contrary. Without sanctioning such action, it
is very likely that the responsibility to protect will become just another quaint
theory in international law, irrelevant to on the ground decision-making and
incapable of the protection it was created to provide.
1. INTRODUCTION
In his seminal work on the history of scientific development, Thomas Kuhn
described the structure of that development as revolutionary in nature,
occurring at that point in time “in which an older paradigm is replaced in whole
or in part by an incompatible one.” 1 The impetus for this paradigm shift is
malfunction – “scientific revolutions are inaugurated by a growing sense …
that an existing paradigm has ceased to function adequately in the exploration
of an aspect of nature to which that paradigm itself had previously led the way
... [T]he sense of malfunction that can lead to crisis is prerequisite to
revolution.” 2 Kuhn himself analogized his conception of the theory and
operation of scientific revolutions to political revolutions, drawing out
parallels in genesis, form and function between the two. The notion of
revolutionary change, or paradigm shifts, itself provides a useful framework to
judge the evolution, current state, and potential future of international human
Associate Professor, Georgetown University Law School, Washington, DC.
1 T.S. Kuhn, The structure of scientific revolutions 92 (Chicago: University of Chicago Press, 1996)
(1962).
2 Id.

20 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
rights and criminal law. Although the analogy must necessarily be incomplete,
as is the analogy between scientific and political revolutions, it does go a long
way in explaining how the current system of international justice has reached
its present state, and what may need to occur before that system can develop
further.
The central focus of the instant article is on the emerging principle of
the “responsibility to protect,” a principle still in its infancy almost ten years
after its initial iteration. That principle itself is built of discrete smaller
principles, which together build the overarching notion of a “responsibility to
protect,” but for present purposes, this article is concerned only with the
potential recourse to military or other definitive action in the face of a state’s
failure to safeguard its citizens. 3 Using Kuhn as the backdrop, this article
argues that the international justice system finds itself again at the threshold of
a paradigm shift, one which, whether the community makes the shift or fails
to make the shift, will have far-reaching consequences for international law
and policy in the twenty-first century. In essence, the international
community, confronted with continuing instances of genocide, crimes against
humanity, and mass atrocities committed by states against their own
populaces, finds itself desperately in need of an “action principle,” a principle
that can motivate and sanction actions by states in the interest of populations
generally.
Despite much political rhetoric and posturing on the international
stage, such a principle still escapes policy-makers and those with the will to
act. This is not surprising considering the myriad interests that are often in
play when members of the international community sit down and attempt to
address specific and concrete realities and situations. Further, it should be
noted at the outset that there may never come a time when a true action
principle is embraced and utilized by members of the international
community. Nonetheless, to cease striving for such a principle would be an
abdication of responsibility by those who have the power to act. As Gareth
Evans has written, “[i]t can only be a matter of time before reports emerge
again, from Central Africa, Central or South Asia, the Balkans, or somewhere
else, of massacres or mass starvation, rape or ethnic cleansing, occurring or
apprehended.” 4 It would be nice if, for once, the international community
actually had a plan and a course of action prepared for such occurrences that
could be implemented and undertaken in time to halt the commission of
crimes, rather than to simply wait and dispense post hoc “justice” after the
fact. It is to this aim that the instant article is dedicated.
3 The “responsibility to protect” comprises three distinct responsibilities: the responsibility to react, with
which this article is concerned, and the responsibilities to prevent and rebuild each vitally important in
their own right.
4 G. Evans, The Responsibility to Protect: Rethinking Humanitarian Intervention, 98 Am. Soc’y Int’l L.
Proc. 78, 80 (2004).

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 21
2. REVOLUTIONS IN INTERNATIONAL JUSTICE
Since the Treaty of Westphalia established the framework of the modern
international order, there have been two major shifts in the world of
international justice that could be construed, in the Kuhnian sense, as
revolutions. The first occurred in the wake of World War Two with the trials
of former political and military leaders of the defeated German and Japanese
sides. The Nuremburg tribunal explicitly disallowed any defense based on
sovereign immunity, “i.e.”, the position prevailing under the Westphalian
conception of the state that a country’s leaders would be immune to
prosecution by other states. 5 Although not entirely without precedent, and
there are few innovations in international law and policy that are truly sui
generis, Nuremburg represented a partial replacement of the Westphalian
paradigm with a new paradigm in which state actors could be held accountable
for certain crimes against their populaces. Returning to Kuhn, the paradigm
shift itself is clear, and the fact that the Nuremburg principles only partially
unraveled the sovereignty contemplated by the Treaty of Westphalia does not
discount the revolutionary nature of this moment. Moreover, the malfunctionas-impetus
is also apparent, although the shift is made post hoc – it is not a
systemic malfunction that necessarily led to the shift away from Westphalia,
but that shift occurred because, had the international community failed to make
the shift, the malfunction would have been manifest. Those who committed the
crimes of Nazi Germany could have been freed, and a dangerous precedent
regarding international accountability would have been set.
The basic principle of Nuremburg, that a state’s leaders will be held
accountable for atrocities committed against its citizens, remained in the
consciousness of international law, despite several years of somnolence, and
returned with vigor in the last years of the Twentieth Century. In response to
the atrocities committed during the disintegration of Yugoslavia and in
Rwanda, the United Nations established ad hoc tribunals for the trial of those
responsible. More recently, hybrid tribunals have been established in
Cambodia and Sierra Leone. Yet despite the continuing vibrance of the
Nuremburg principle, the international community’s application of that
principle was obviously and decidedly ad hoc – although perpetrators would
be brought to justice, such justice remained dependent on the establishment of
a specific forum for a specific situation.
Thus, the second revolutionary moment occurred at the point when
international justice became institutionalized in the body of the International
Criminal Court. This moment fits more neatly into the Kuhn analogy, as a
“malfunction” was at least implicitly present – the cost and time involved with
5 See G. Robertson QC, Ending Impunity: How International Criminal Law Can Put Tyrants on Trial, 38
Cornell Int’l L.J. (2005) p. 649, pp. 650-656.

22 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
establishing a tribunal anew for each situation warranting justice – and the
paradigm shift towards an institutionalized forum for administering
international criminal justice at least partially replaced the prior system of ad
hoc and national justice. National jurisdictions will continue to have a
significant role to play in the system via the principle of complementarity, and
nothing in the Rome Statute itself bars recourse to hybrid or other forms of ad
hoc tribunals, yet insofar as it does present an entirely new and permanent
forum for the administration of international criminal justice, the ICC is truly
revolutionary in the Kuhnian sense. From its establishment on, and to the
extent that crimes are committed within its temporal and substantive
jurisdiction, it will be charged with the role of investigating violations of
international criminal and humanitarian law, bringing appropriate charges,
and trying the violators. And it will do all this from a permanent seat, with a
full complement of judges, prosecutors, and staff, whose full time job will be
international criminal law.
These first two moments have built off of each other, as the
establishment of the ICC is a direct result of the continuing vitality of the
Nuremburg principles and the international community’s desire to see justice
done when the worst atrocities are committed by state political and military
leaders. So, to, have the cumulative “effects” of these preceding moments
given rise to the current point of crisis in international criminal and human
rights law, where, for the first time, the international community has begun to
question to what extent the atrocities themselves may be halted prior to or
during their commission, rather than simply punished post factum. To
ultimately answer this question, however, means that one must return to the
surviving aspects of Westphalia and rationalize one state’s “meddling” into
the sovereign domain of another state, a course of action effectively rendered
impermissible by the founding document of the current international order,
the United Nations Charter: “Nothing contained in the present Charter shall
authorize the United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state[.]” 6
The “malfunction” here is clear – a state’s sovereignty, as
traditionally conceived under the international system, in essence means that
certain ongoing acts will be isolated from review by the international
community, even if, under prevailing norms of international law, the
perpetrators may ultimately be held to account for those atrocities. This
dilemma was noted by former Secretary-General Kofi Annan over the course
of several high-profile appearances and speeches from 1999 through 2001. In
his speech to the Fifty-Fourth Session of the U.N. General Assembly, Annan
stated that “[s]urely no legal principle – even sovereignty – can ever shield
6 Charter of the United Nations, 26 June, 1945, 3 Bevans 1153, article 2.7.

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 23
crimes against humanity.” 7 In his millennium report issued the following year,
the dilemma was posed in more existential terms: “If humanitarian intervention
is, indeed, an unacceptable assault on sovereignty, how should we respond to
a Rwanda, to a Srebrenica – to gross and systematic violations of human rights
that affect every precept of our common humanity?” 8 This course of thought
culminated at the very moment that the new principle of a “responsibility to
protect” became manifest. At his Nobel lecture in 2001, Annan stated
emphatically that the “sovereignty of states must no longer be used as a shield
for gross violations of human rights.” 9 That same year, the International
Commission on Intervention and State Sovereignty issued a report designed to
meet the inherent tension between state sovereignty and the state’s continuing
proclivity to commit atrocities against its own citizens. In the words of one
prominent member, to meet these difficulties, the international community had
“to rethink sovereignty in terms of its essence being not so much control as
responsibility.” 10 Thus, we find ourselves in the midst of the third (potentially)
great, although currently incomplete, revolution in international criminal and
human rights law.
3. THE RESPONSIBILITY TO PROTECT: FROM
2001 THROUGH THE PRESENT
The “responsibility to protect” was the result of the International Commission
on Intervention and State Sovereignty’s 2001 report, The Responsibility to
Protect. 11 This report, in the course of rethinking sovereignty-asresponsibility,
premised the resulting conception of sovereignty on two basic
principles: “a primary responsibility to protect lies with the state and a
secondary or surrogate responsibility to protect falls to the international
community when the state is unable or unwilling to halt or avert a population
suffering serious harm, whether resulting from internal war, insurgency,
repression or state failure.” 12 This conception of state sovereignty envisions a
two-fold conception of state responsibility: a state is internally responsible to
its citizens for the welfare of those citizens, and externally responsible to the
international community for its internal actions. 13 In essence, then, the
Commission contemplated a “residual responsibility” on the part of the
7 Secretary-General presents his Annual Report to General Assembly, U.N. Doc. SG/SM/7136 and GA/
9596 (20 September, 1999).
8 K.A. Annan, We the peoples: The role of the United Nations in the 21st century 48 (2000), G.A.
Resolution 2000, U.N. GAOR, 54th Sess., U.N. Doc. a/54/2000 (2000), available at http://www.un.org/
millennium.
9 K. Annan, Nobel Lecture (10 December, 2001).
10 Evans, supra note 4, p. 82.
11 International Commission on Intervention and State Sovereignty, the Responsibility to Protect (2001).
12 E. McClean, The Responsibility to Protect: The Role of International Human Rights Law, 13 J. Conflict &
Security L. (2008) pp. 123-127.
13 Id. at 128; C. Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?, 101 Am. J.
Int’l L. (2007) p. 99, p. 104.

24 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
international community, to be activated: (1) when a particular state is clearly
either unwilling or unable to fulfill its responsibility to protect; (2) when a
particular state … is itself the actual perpetrator of crimes or atrocities; or (3)
where people living outside a particular state are directly threatened by actions
taking place there. 14
When this residual responsibility is activated, states in the
international community may take coercive measures as against the offending
state, which “may include political, economic, or judicial measures, and in
extreme – but only in extreme – cases, they may also include military
action.” 15 The possibility of military action is central to the instant article, but
as Evans noted, that possibility is accompanied by a number of difficult
questions: “[W]hat is an extreme case? Where should we draw the line in
determining when military intervention is prima facie defensible? What other
conditions or restraints, if any, should apply in determining whether and how
intervention should proceed? Most difficult of all, who makes all these
decisions? Who should have the ultimate authority to determine whether an
intrusion into a sovereign state, involving the use of deadly force on a
potentially massive scale, should actually go ahead?” 16 The Commission
established six basic criteria that should govern the question of military
intervention:
1. Just cause (the threshold for action) – military intervention should not be
countenanced unless two potential situations are present: “large-scale loss
of life, actual or apprehended, with or without genocidal intent, that is the
product either of deliberate state action, state neglect or inability to act, or
a failed state situation; or large-scale ‘ethnic-cleansing,’ actual or
apprehended, whether carried out by killing, forced expulsion, acts of
terror, or rape.” 17 The Commission also noted that situations of natural
disasters or catastrophes could also provide the catalyst for military
intervention, “when the state concerned is unwilling or unable to cope or
call for assistance, and significant loss of life is occurring or threatened.” 18
2. Right intention – “The primary purpose of the intervention, whatever other
motives the intervening states may have, must be to halt or avert human
suffering.” 19
3. Last resort – military intervention must always be an option of last resort:
“Every diplomatic and nonmilitary avenue for the prevention or peaceful
resolution of the humanitarian crisis must have been explored.” 20 The
Commission hedged against the interminable delay a strict application of
14 Stahn, supra note 13, p. 104 (citing The responsibility to protect 17).
15 Evans, supra note 4, p. 84.
16 Id.
17 Id. p. 85.
18 Id.
19 Id. pp. 85-86.
20 Id. p. 86.

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 25
a “last resort” principle could lead to, noting that the requirement that
military intervention must be a recourse of last resort “does not necessarily
mean that every such option must literally have been tried and failed; often
there will simply not be the time for that process to work itself out. What
it does mean is that there must be reasonable grounds for believing that, in
all circumstances, if the measure had been attempted it would not have
succeeded.” 21
4. Proportionality – “The scale, duration, and intensity of the planned
military intervention should be the minimum necessary to secure the
humanitarian objectives in question.” 22
5. Reasonable prospects – “Military action can only be justified if it stands a
reasonable chance of successfully halting or averting the atrocities or
suffering that triggered the intervention.” 23
6. Right authority – the military intervention must derive its invocation from
an international actor with the legal authority to authorize military
interventions into a sovereign state. 24
The question of right authority is central to whether the
“responsibility to protect” will ever become an efficacious principle of action.
As Gareth Evans noted in the wake of the Commission’s report, “[w]hen it
comes to authorizing military intervention for human protection purposes, the
argument is compelling that the United Nations, in particular the Security
Council, should be the first port of call. The difficult question – starkly raised
by Kosovo – is whether it should be the last.” 25 Thus, although the
Commission’s report made clear that the United Nations should be the first
stop in obtaining authorization to intervene for protection purposes, it did not
foreclose the option that states unilaterally, in coalitions, or under the auspices
of regional organizations, could intervene if the United Nations failed to take
appropriate action. 26
The issue of right authority was next taken up by the United Nations’
High-Level Panel on Threats, Challenges and Change, whose mandate
encompassed issues mainly pertaining to institutional reform at the U.N.
Unsurprisingly, then, the focus of the eventually issued report centered on the
primacy of U.N. authorization, specifically via the Security Council. 27
“Unlike the Commission [], the panel did not envisage that an international
responsibility to protect could be invoked by coalitions of the able or willing
21 Id.
22 Id.
23 Id.
24 Id. pp. 86-88.
25 Id. pp. 86-87.
26 The responsibility to protect 54-55; see Stahn, supra note 13, at 104; R. J. Hamilton, The Responsibility to
Protect: From Document to Doctrine—But What of Implementation?, 19 Harv. Hum Rts. J. (2006) pp.
289-291.
27 See High-level Panel on Threats, Challenges and Change, a More Secure World: Our Shared
Responsibility (2004).

26 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
or regional organizations in the absence of Security Council authorization.
The report stressed that the ‘emerging norm’ of a ‘collective international
responsibility to protect’ was only ‘exercisable by the Security Council’ and
only if military intervention was at stake.” 28 Again unsurprisingly, this same
tact was presented in Secretary-General Annan’s 2005 report, In Larger
Freedom: Towards Development, Security and Human Rights for All. 29 In this
report, the “[u]se of force was described as an ultima ratio measure that, if
taken, ought to be carried out by the Security Council. The notion of
responsibility to protect was used to constrain, rather than to enable, the use of
force.” 30 As Carsten Stahn noted, “the general focus of the report on the
[Security] Council and the silence of the secretary-general on alternative
means of carrying out interventions for purposes of human protection
indicated a general reluctance to accept military action without the Security
Council’s authorization.” 31
Nonetheless, despite the United Nations own attempts to maintain
not only a focus on the Security Council, but a monopoly of decision, gray
area was restored to the “right authority” debate via the 2005 World Summit
Outcome Document, the product of the High-Level Plenary Meeting of the
60th Session of the General Assembly. 32 The relevant provisions of that
document are paragraphs 138 and 139, which embody the responsibility to
protect and contemplate the circumstances when the residual responsibility of
the international community may be activated. Paragraph 138 recognizes that
“Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their
incitement, through appropriate and necessary means.” Turning from the
state’s internal responsibilities, paragraph 139 addresses the external
dimension of the state’s responsibility: “The international community,
through the United Nations, also has the responsibility to use appropriate
diplomatic, humanitarian and other peaceful means, in accordance with
Chapter VI and VIII of the Charter, to help to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity.” When
that responsibility comes into play, the international community should be
“prepared to take collective action, in a timely and decisive manner, through
the Security Council, in accordance with the Charter, including Chapter VII,
on a case-by-case basis and in cooperation with relevant regional
organizations as appropriate, should peaceful means be inadequate and
28 Stahn, supra note 13, p. 106.
29 See Report of the Secretary General, in Larger Freedom: Towards Development, Security and Human
Rights for All (2005).
30 Stahn, supra note 13, at 107.
31 Id. pp. 107-08.
32 G.A. Res. 60/1 (24, October, 2005).

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 27
national authorities are manifestly failing to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity.” 33
The Outcome Document does not, contrary to the previous iterations
by Annan and the High-Level Panel on Threats, Challenges, and Change,
“firmly state that UN collective security action constitutes the only option for
responding to mass atrocities through the use of force ... It leaves the door
open to unilateral response through its ‘case-by-case’ vision of collective
security and qualified commitment to act in cooperation with regional
organizations (‘as appropriate’).” 34 Another commentator has posited that
unilateral intervention may be contemplated upon the satisfaction of three
conditions: (1) one of a narrow set of “extreme human rights abuses” is
present; (2) a course of international action has been exhausted or is infeasible
(“the agreement implies a hierarchy of actors and of interventions: Good faith
U.N. action is privileged over unilateralism and peaceful action is privileged
over violent means.”); and (3) the intervention is undertaken solely for
purposes of protection. 35
Although the circumstances that may warrant a military intervention
in the face of a state’s failure to protect its own citizens are more or less clear,
the course of conduct contemplated once those circumstances become
apparent is less so. The four documents explored above diverge in this regard,
with some contemplating potential unilateral or multilateral action outside the
confines of the U.N. system if that system itself is unable to take the
appropriate steps, while others view the U.N. as the sole permissible step on
the enforcement side of the responsibility to protect. Unfortunately, until this
dilemma is resolved, there is little reason to believe that the responsibility to
protect, no matter how beautifully theorized, will have any relevance in
practice.
4. THE RESPONSIBILITY TO PROTECT: AN
EARLY FAILURE
Whether in the Congo, Sudan, Burma, or any of a range of other states, the
responsibility to protect has failed as a principle in motivating a response to a
state’s clear abdication of its internal responsibility to protect its citizens. This
failure can be attributed to a number of causes, including a lack of clear support
for the principle in practice, “i.e.” a lack of political will for broad
implementation, an incompletely and potential incorrectly theorized view of
the “responsibility,” and the pervasiveness at the United Nations and in foreign
delegations of a paper culture antithetical to definitive action.
33 Id. at p. 139.
34 Stahn, supra note 13, p. 109.
35 See A. L. Bannon, The Responsibility to Protect: The U.N. World Summit and the Question of
Unilateralism, 115 YALE L.J. (2006) pp. 1157-1158.

28 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
First, it is far from clear that there is currently, or ever will be,
sufficient political will to make the responsibility to protect a political reality
in those situations where its invocation would be needed. This is a distinct
issue from those circumstances which present a need for invocation of the
principle, but where action may be impossible from a logistical or operational
perspective. The failure here is starker, as the international community could
do something, but for failure to adequately mobilize political resources does
not. The situation in Darfur is often viewed through this prism, as operational
capacity has never been a real concern in planning on the ground aid and
action. Rather, one of the many lessons of Darfur is that “even if operational
targets can be met, they will not be met without political commitment.” 36 This
situation, a failure of political will despite the capacity to act, is not particular
to Darfur, but will infect every circumstance where the responsibility to
protect is invoked, and this is true for a range of reasons, from individual
apathy in the populations of other states to self-interest on the part of
governments and international actors. 37 A failure of political commitment is
fatal in these situations, as there is nothing outside the very imperative to
action that these situations cry out for that can compel action on the part of
states or international bodies. Yet unless this situation can be remedied, the
enunciation of the “responsibility to protect” may well “merely mark the turn
of another century of inaction in the face of mass human suffering.” 38
Second, it is also not clear that the principle has achieved any sort of
real consensus regarding its scope and implementation in theory, making any
practical application that much more difficult. Emma McLean has noted that
“the change in language advocated by the ICISS report has done little to forge
consensus or overcome the struggle between sovereignty and human
rights.” 39 Despite paying lip-service to the responsibility to protect, many
states still wish to maintain rigidly classic definitions of sovereignty, whether
so they can keep a tight grasp on regions seeking independence, or because
they simply want outside eyes averted from domestic issues. This inevitably
means that the responsibility to protect cannot gain hard legal traction, as it
remains simply a principle, or a soft law ideal, yet to coalesce around a
definitive consensus of when and how sovereignty can be “side-stepped” in
favor of international action. 40 Although the responsibility to protect itself
should probably never become such a hard principle of law, as that would
36 Hamilton, supra note 26, p. 294.
37 See G. Evans, From Humanitarian Intervention to the Responsibility to Protect, 24 Wis. Int’l L.J. (2006)
pp. 703-720.
38 Hamilton, supra note 26, at 297.
39 McLean, supra note 12, p. 134 (internal quotation marks and citation omitted).
40 See, “e.g” id. at p. 135 (“At this juncture it is pertinent to recall that the responsibility to protect is not a
legal principle. It is a policy option which the ICISS grounds on four pillars to support the position that a
norm of intervention for human protection purposes in extreme cases of major harm to civilians is
emerging.”); Stahn, supra note 13, p. 120 (“Responsibility to protect is in many ways still a political
catchword rather than a legal norm.”).

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 29
implicate the (unwise) establishment of a coercive regime for incidences of
non-action, 41 the foundations of the responsibility must rest on such hard legal
“facts.” Such legal facts must include the extent of a state’s sovereignty and
when sovereignty can cease to act as a cover for a state’s treatment of its own
citizens, the circumstances when militarily coercive action can be resorted to,
and what the nature of the military response could be, “i.e.” international,
unilateral, multilateral, regional. Until these definitional and legal issues are
sorted out, the responsibility to protect will remain not only a point of soft
law, but, for all intents and purposes, simple and superfluous verbiage.
Finally, despite any number of hortatory declarations of support,
implementation of the principle is inevitably compromised by the fact that its
implementation rests with an organization that largely finds written reports,
reprimands, and censures sufficient to discharge its responsibility without
getting its hands dirty with real action. The United Nations and any number of
foreign ministries, including the United States Department of State, are paper
cultures intricably bound to notions of bureaucracy and the interminable delay
inherent therein. Thus, while many trumpet the idea of a responsibility to
protect, there is little reason to believe that this responsibility will ever be put
into action, as the individuals with the responsibility to act must go through
any number of paper exchanges and reports before action could actually be
countenanced. Indicative of this mindset are two recently issued reports, one
by the United Nations, the other by the International Human Rights Clinic of
Harvard Law School. The Harvard report dealt with the issue of international
crimes being committed in Burma, and was overseen by veritable
international jurists, among them, Richard Goldstone, Patricia Wald, and Sir
Geoffrey Nice. 42 The report noted the consistent course of grave violations of
human rights law undertaken by Burma’s military junta, and the fact that such
violations had been extensively documented by the United Nations over the
preceding decades in a range of reports and resolutions. 43 Noting these
reports, however, the report did not question the efficacy of the United
Nations, or advocate for actual action. Rather, it recommended recourse
through the United Nations Security Council; specifically, that the U.N.
should pass resolutions condemning the situation, the Security Council should
establish a Commission of Inquiry to verify the violations, and then the
Security Council should establish a judicial mechanism or refer the case to the
International Criminal Court to address the violations. 44 It seems an odd
conclusion to recommend further reports as the definitive action, when that
41 See Stahn, supra note 13, p. 117 (“If the responsibility to protect were indeed a primary legal norm of
international law, it would be logical to assume that such violations should entail some form of legal
sanction in case of noncompliance. But it is uncertain on what basis and under which rules such violations
could be remedied.”).
42 See International Human Rights Clinic, Harvard Law School, Crimes in Burma (May 2009).
43 See id. pp. 3-4, pp. 37-76.
44 Id. p. 77 and pp. 86-90.

30 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
very conclusion was derived from decades of reports that have obviously not
impacted the situation in Burma at all.
This same flawed logic and lack of self-awareness is even more
present in the Secretary-General’s report on “implementing” the responsibility
to protect. 45 The Secretary-General correctly noted, regarding genocide, that
“[t]oo often, the international response has been inadequate. Far from being
consigned to history, genocide remains a serious threat. Not just vigilance but
a will to act are as important today as ever.” 46 Nonetheless, any directive to
act is almost immediately undermined in the same paragraph: “To this effect,
my Special Advisor and his office continue to pursue a strategy of enhancing
the United Nations’ understanding of genocide and its precursors, of
strengthening the ways in which existing international law can be used to
prevent genocide and, above all, of monitoring and analyzing ongoing
situations of concern and advising me and Member States as needed.” 47 This
inaction is manifest even in the monitoring of actual, rather than apprehended,
incidents. Regarding the breakdown in the Congo, “[t]hroughout 2008, my
Special Advisor on the Prevention of Genocide has followed the situation in
the eastern DRC … with considerable concern ... From his meetings and
observations, my Special Advisor concluded that there is cause for deep
concern regarding the grave human rights and humanitarian situation in
North Kivu, including the risk of genocidal violence[.]” 48 The basic thrust of
this report is the establishment of a framework of analysis “to determine
whether there may be a risk of genocide in a certain situation.” 49
The framework uses eight questions to prompt information
collection and analysis of key areas: (1) the existence and
vulnerability of national, ethnic, racial or religious group(s); (2)
human rights violations committed against the group(s); (3)
domestic capacity to prevent genocide; (4) the existence of armed
opposition actors; (5) the existence of any significant political or
economic motivation encouraging political leads to stroke divisions
between groups; (6) whether elements of the crime of genocide are
already occurring; (7) whether there are moments of particular
vulnerability approaching; and (8) whether there is a discernible
intent to commit to destroy a national, ethnic, racial or religious
population group. 50
45 Implementing the Responsibility to Protect—Report of the Secretary-General, A/63/677, January 2009,
21 Int’l J. Refugee L. 519 (2009).
46 Id. p. 536.
47 Id.
48 Id. p. 531.
49 Id. at 519-20.
50 Id. at p. 520, pp. 522-24.

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 31
One can imagine a genocide being completed in the time that the
United Nations will take to answer these questions which, it bears mentioning,
will only “prompt information collection and analysis” even if a risk of
genocide is apprehended! The kind of analysis and assessment noted by the
United Nations, and undertaken by the Harvard clinic, are important and have
a place within the international justice framework. At some point, however,
the proliferation of reports cannot help but have a deleterious impact on the
will to act, as seems clearly the case at this stage in the development of the
responsibility to protect. Too many actors and policy makers seem content on
writing about why and in what situations the responsibility should be engaged,
rather than in undertaking the necessary steps to ensure implementation on the
ground. Yet, as is obvious, no matter how beautiful the language or theory of
the responsibility is, if it cannot protect in practice, it is not worth the paper
these reports are written on. As Gareth Evans has written, “[w]e cannot be
content with reports and declaration. We must, as an international community,
be prepared to act. We will not be able to live with ourselves if we do not.” 51
5. TOWARDS A PRINCIPLE OF ACTION
If the responsibility to protect, as currently conceived and implemented, is
flawed and incapable of realizing its inherent promise, how can the
international community proceed towards a principle of action that can provide
the requisite impetus in a Darfur or Burma? In order to realize such a principle
of action, the responsibility to protect simply has to be more tightly and
coherently theorized, specifically in relation to the types of overtly coercive
responses it will countenance under its name, “i.e.” how military action may be
undertaken. This may be the most important aspect regarding moving forward,
but all the hard legal “facts” noted in the preceding section must be dealt with
explicitly and comprehensively, which has only occurred to a limited degree
thus far. Specifically, the limitations on a state’s sovereignty must be
addressed, the circumstances warranting an overt and physical response must
be categorized, and the permissible nature of that response must be delineated.
As an initial matter, however, the “theory” of the international
community’s residual responsibility must be more fully developed. The
“responsibility to protect” asserts that a state has an internal responsibility to
protect its citizens, and an external responsibility to the international
community to assure that it does fulfill its domestic responsibilities. 52 Only
when the state shirks the internal dimension of its responsibility may the
international community’s responsibility be engaged. Rather than view the
international community’s “residual” responsibility as derivative of the state’s
51 Evans, supra note 4, p. 89.
52 See McClean, supra note 13, at 128; Stahn, supra note 14, p. 104.

32 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
internal responsibility, that responsibility should derive directly from the
corpus of international human rights and criminal law, “i.e.” the international
community has a responsibility to enforce a state’s compliance with its
obligations under international law, and when a state fails to fulfill those
mandates, coercive action by the international community is permissible.
Although a state does have an external responsibility to the international
community to ensure its own compliance with its international obligations,
this responsibility is not one which implicates the domestic populace or
should engage any international responsibility. It is a traditional state-to-state
conception of responsibility, and recourse for violations in that sense should
be confined to traditional avenues of international dispute settlement. Any
responsibility undergirding the international community’s call to action in
“responsibility to protect” situations should be based not on this external
dimension of the state’s responsibility, but on the international community’s
duty to ensure compliance with international law.
Regarding limitations on a state’s sovereignty, it is still accepted that
so long as a state complies with its obligations to its citizens, its internal
actions will avoid external scrutiny. There is a growing consensus, however,
that when this responsibility is neglected, any defense to external scrutiny
based on sovereignty is weak, at best. This fact is derived from the legal
obligations undertaken by the state on behalf of its citizens, and the
understanding that a state may not commit atrocities against its subject
populace: “If nations have no sovereign right to commit or passively permit
atrocities against their own populations, then they cannot object on
sovereignty grounds to coercive actions halting the commission of those
atrocities.” 53 Thus, the issue of sovereignty need not be dealt with in a
necessarily expansive manner. It is sufficient, for purposes of discerning when
action is warranted, to address solely those grave circumstances where the
state is actively committing atrocities against its populace. In those
circumstances, a state simply does not have any cognizable defense to
intervention, as it is itself committing crimes under international law which
the intervention is designed to stop. Accordingly, this provides the first legal
peg of support for a principle of action: action can proceed against a state that
is committing crimes against its population in violation of international law,
because that state lacks any colorable sovereignty defense.
But what crimes will trigger this “abrogation” of sovereignty?
Any inclination towards adventurism on the part of the members of
the international community can be tempered by making clear that a military
intervention will only be triggered by the worst abuses of a state. Election
fraud or electoral corruption would be an insufficient basis to justify a military
response, making action unjustified based on the recent elections in Iran and
53 Bannon, supra note 35, p. 1162.

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 33
the previous disputed elections in Kenya and Zimbabwe. Violations of other
human rights, “i.e.” religious freedom, rights of association, freedoms of
speech and the press, are also not actions that should trigger an overt military
response. This is not to say that these rights are not extraordinarily important
or that some other form of coercive response should not be contemplated and
implemented – it is solely to recognize that not every violation of a right
cognizable under international law can give rise to the most extreme response.
Rather, the ICISS report has basically gotten it right in categorizing those
circumstances where a state’s actions against its citizens will give rise to
colorable grounds for military intervention: where there is “large-scale loss of
life, actual or apprehended, with or without genocidal intent, that is the
product either of deliberate state action, state neglect or inability to act, or a
failed state situation; or large-scale ‘ethnic-cleansing,’ actual or apprehended,
whether carried out by killing, forced expulsion, acts of terror, or rape.” 54
Additionally, intervention will be countenanced when a state is unwilling or
unable to take necessary steps to protect its populace in the wake of a natural
disaster or catastrophe. 55 Burma’s inexcusable delay and ultimately
ineffectual response to Cyclone Nargis is just such an example.
To this list should be added a state’s commission of crimes against
humanity, as defined by the Rome Statute. This would include as a trigger for
a military response a state’s commission of enslavement, deportation or
forcible transfers of segments of the population, torture, persecution, statesponsored
disappearances, and other inhumane acts of a similar character. 56
Although these acts are justifiably seen as reprehensible, the criticism may be
leveled that to include crimes against humanity as a trigger for military action
increases exponentially those circumstances where such action could be
justified. The line between persecution and deprivation of religious freedoms,
for instance, may be gray, and there are no good reasons for including crimes
against humanity on the one hand, while excluding similarly egregious
violations of human rights on the other. In practice, and in correctly applying
the definition of crimes against humanity, including this class should not
unduly expand the range of circumstances where a military action may be
countenanced, mainly on account of the inherent jurisdictional limitation of
“crimes against humanity.” The acts noted above are not crimes against
humanity when viewed in isolation, or necessarily even when viewed in the
aggregate: rather, to constitute crimes against humanity, a state must be
committing the listed acts, and the state’s commission of those acts must be
widespread or systematic, and the attacks must be directed at a civilian
54 Evans, supra note 4, p. 85.
55 Id.
56 Rome Statute of the International Criminal Court, art. 5(1) (b), U.N. Doc. 1998, A/CONF. 183/9 (1 July,
2002).

34 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
population. 57 Considering the prevailing international law definitions of
“widespread” and “systematic,” it is unlikely that including crimes against
humanity as a trigger to action would lead to action in any but the most
egregious circumstances. 58 Thus, once a state’s sovereignty has been pierced
by its commission of atrocities against its citizens, military action can be
countenanced if those atrocities constitute genocide or mass killings, or crimes
against humanity, or if the state fails to take reasonable responsive action in the
face of a natural disaster or catastrophe to the significant detriment of its
population. This is the second legal peg on which any claim of military action
must be hung.
This leaves, of course, perhaps the most contentious aspect of any
principle of action – when can action be resorted to and who is charged with
the responsibility of acting?
Much of the debate over the “responsibility to protect” has taken
place within the context of “growing concerns as to the effectiveness of the
[United Nations], in particular the Security Council, to respond to genocide,
ethnic cleansing and other mass human rights violations.” 59 The United
Nations generally, and the Security Council specifically, proved ineffectual in
the face of genocide in Rwanda and ethnic cleansing and forced displacements
of persons in Kosovo, and has thus far failed to act with any sort of efficacy in
Sudan, Burma or Congo. Yet the fact remains that the United Nations and the
Security Council are the preeminent legal-political institutions under
international law, for better or for worse, and thus, there is a compelling
argument that before any military action can be undertaken, the Security
Council must be consulted. 60 Nonetheless, there are also compelling reasons
for not consulting the Security Council. Its members vested interests may
often block definitive action in a state where action is sorely needed, such as
in Darfur, where China has substantial oil interests in Sudan and is loathe to
risk those interests on humanitarian grounds. Self-interest leads to two distinct
problems. First, self-interest, if it proceeds through incrementalism, may delay
any action by the Security Council until far past the time when action could
have been efficacious in halting the commission of atrocities. Second, if selfinterest
leads to a more definitive refusal of action, say through an explicit
veto of a contemplated course of action, the Security Council’s refusal to act
will inevitably call into question any actions that are ultimately contemplated
or undertaken by a state singularly or in a coalition of other like-minded actors
57 Id. at article. 7(1).
58 See, “e.g.” Prosecutor v Rutaganda, Case No. ICTR-96-3-T, Judgment, 69 (6 December, 1999)
(“‘widespread,’ as an element of crimes against humanity, was defined in the Akayesu Judgment, as
massive, frequent, large scale action, carried out collectively with considerable seriousness and directed
against a multiplicity of victims, whilst ‘systematic’ was defined as thoroughly organised action,
following a regular pattern on the basis of a common policy and involving substantial public or private
resources.”).
59 McLean, supra note 13, p. 124.
60 See Evans, supra note 4, pp. 86-87.

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 35
in the wake of the United Nations’ failure to act. Thus, a pall may be cast over
any eventual action. Of course, delay may become manifest even if no selfinterest
problems are present. As noted previously, the United Nations is
largely a paper culture, and so even if the Security Council may be inclined
towards action, no action will be implemented until a significant number of
rounds of investigation, reporting, and debate have taken place. As with the
“analysis of genocide” proposed by the Secretary-General in his report on
implementing the responsibility to protect, one can very well image the
completion of genocide or crimes against humanity in the time it may take the
Security Council to act.
This article is not the place to argue for comprehensive United
Nations’ reform or for a position that would blatantly ignore that body’s
prerogatives regarding international law and intervention. Nonetheless, it is
clear that some mechanism must be put into place that will assure at least the
possibility of a course of action in the face of United Nations inaction. Thus,
recourse to unilateralism and multilateralism must be countenanced by a fully
theorized responsibility to protect. The main question that needs to be
answered in that context, then, is when can such action be resorted to?
Assuming for purposes of this article that the Security Council, or,
more generally, the United Nations, should be the first stop in seeking
sanction for the use of military action against a state that has failed in its
responsibility to protect, alternative courses of action should be permitted
when it becomes apparent that the Security Council is either unable or
unwilling to act. Thus, there needs to be a requirement of exhausting available
U.N. remedies prior to undertaking a unilateral or multilateral response, but
the exhaustion requirement has to be read in a pragmatic, not formal sense. In
line with Gareth Evans, it is not necessary that every potential remedial course
via the Security Council be attempted and fail prior to undertaking alternative
courses of action – a state ready to take action need only be certain that all
international courses have been explored and have either failed or further
attempts would be futile. 61 This is a necessarily subjective test – when further
courses of action will be deemed futile will obviously depend on the
perspective of the state seeking sanction for action, and there is, unfortunately,
no bright-line rule for when, in any given situation, the Security Council has
become “irrelevant.” To require some level of exhaustion, however, assures
that the United Nations will be the first stop in seeking sanction to any
military action, which should, in turn, assure that body a place in the debate
about whether coercive military action is justified and provide it with an
opportunity to undertake its obligation to protect subjugated populaces.
If, however, it fails in this obligation, as seems increasingly likely
given its track record over the preceding decades, the responsibility to protect
61 Id. p. 86.

36 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
must be theorized in such a way as to provide explicit legal cover for action on
the part of single states, multilateral coalitions, or regional actors. In most
circumstances, these types of responses will be all that is available, either
because of self-interest on the part of Security Council members or the general
apathy at the United Nations towards action. The failure of the United Nations
to act, however, should not be an obstacle in the road to others exercising their
responsibility to protect. Nor are there any fatal criticisms to allowing
unilateral or multilateral action in these circumstances. Unilateralism is
almost a non-starter, as there are few, if any countries, with the ability to
intervene unilaterally in the circumstances contemplated by the responsibility
to protect. The United States, perhaps the only country with both the resources
and will to undertake such interventions, is reeling from two current wars and
is unlikely to undertake, unilaterally, any new obligations. In any event, any
eventual action is still constricted by threshold requirements that would have
to be met, even if unilateral or multilateral action is taken outside the confines
of Security Council sanction. Permitting such action does not create a “wild
west” type of atmosphere where any gunslinger-country can ride to the rescue
of an afflicted population. Such intervention can only occur once a state has
failed in its own duty to protect its citizens, and the actions being undertaken
in that state rise to the requisite level of severity to warrant forcible
intervention. In short, the responsibility does not grant a carte blanche to
willing states. Additionally, so long as the responsibility is grounded on the
legal pegs noted above, no claim can be made that the intervention itself, even
if it does occur through a “coalition of the willing” rather than under the
auspices of the U.N. blue hats, is impermissible. Any intervention will occur
only under the legal principles that sovereignty is limited, and that the
offending state’s sovereignty has been pierced by its active commission of
heinous crimes against its own population. Finally, and also unfortunately,
self-interest, when present, will likely act against the principle of intervention,
not in favor of action.
The Bush administration’s invasion of Iraq has done much to temper
the international community’s desire to intervene in humanitarian situations.
This is unfortunate, not least so because any humanitarian justification for that
invasion was decidedly post hoc and not relevant to the initial decision to
invade. 62 Those with the power to act now cannot be lead astray by the hangover
of that “misadventure.” Action outside the Security Council in
responsibility to protect situations must be sanctioned, as in the bulk of such
situations that will be the only true action that is likely to occur. This is
embarrassingly apparent from shots of U.N. “peacekeepers” standing by in the
midst of the Rwandan genocide, to NATO’s lead role in Kosovo after the
Security Council’s inexcusable abdication of responsibility, and to the lead
62 P. Wolfowtiz, Realism, Foreign Pol’y, September-October. 2009, pp. 66-72.

PARADIGM SHIFTS IN INTERNATIONAL JUSTICE 37
role of African states and regional organizations in Congo and Darfur. If the
responsibility to protect is to attain the status of an action principle, then U.N.-
fetishism must be jettisoned in favor of a more pragmatic outlook on
international law and policy. Sanctioning the types of alternative action
contemplated by this article, and in those circumstances where such action is
warranted, would go a long way in making such an action principle a reality.
6. CONCLUSION
There is a serious malfunction in the current operation of international human
rights and criminal law, as states continue to commit mass atrocities against
their own populations. Although the “responsibility to protect” does represent
a partial shift away from the prevailing paradigm, whereby a state is largely
unaccountable during the commission of such acts, it has thus far been
ineffectual in marshaling action against offending states. This is so for a
number of reasons, but most importantly because implementation of a plan of
action is too dependent on the United Nations and the Security Council. If a
true “action principle” is to be realized in the near future, unilateral and
multilateral action in the face of United Nations inaction must be sanctioned by
the international community. The fears surrounding such a move are largely
unfounded and, in any event, the potential gains to be realized far outweigh any
of the associated costs. Although some have sought a balancing in these
situations, weighing the harm to the Security Council if action is undertaken
outside its purview against the harm to populations in the face of non-action,
there is another dimension to this analysis, namely the harm to the international
system when states are permitted to flaunt international law with impunity in
the commission of crimes against their populations. Darfur, Burma, and North
Korea, to name a few, are horrendous situations not only for the human cost
associated with the regimes’ misdeeds, but also because the very existence of
these regimes seems a repudiation of those human rights that have grounded
the international order since the birth of the United Nations. Now is finally the
time for action and the time to cease hiding behind reports and other
instruments of interminable delay. For if we fail to act now, in light of decades
of accumulated knowledge, “we will not be able to live with ourselves.” 63
63 Evans, supra note 4, p. 89.

The right to maternal health care: Developing international
human rights law to prevent maternal mortality
ABSTRACT
L. S. Johnson*
The enormous problems of maternal and infant mortality in today’s world are
directly linked to inadequate or nonexistent maternal health care for millions
of women everywhere. This paper argues that viewing the right to maternal
health care as a human right is an opportunity to discern ways in which both
individuals and states wishing to advocate for maternal health care could use
existing international human rights law to do so. By examining international
human rights law that has developed to establish maternal health care as a
human right since the 1970s, this paper builds a framework within which
policy alternatives, for both states and individuals, to advocate for the right to
maternal health care are elucidated. After clarifying the international
agreements and community policies that currently recognize maternal health
care as a human right, the author projects future trends in international human
rights law regarding the right to maternal health care. Making
recommendations to build a multifaceted human rights approach to reducing
maternal death, the paper emphasizes the critical need for both states and
individuals to act to prevent maternal mortality globally.
1. INTRODUCTION
When my mother started screaming, we went into the room and
started crying. Why was no one helping her to get relief from the
pain? My father said we had to wait until morning and then find a
way to take her to a health care center. Minute by minute, her
screaming became louder and louder. We were all sitting beside her.
Her face was so red. She carried on screaming until she died. No,
she stopped screaming before she died, but she was breathing very
loudly just before she died. After she died, we cried a lot. We cried
for five days because we had lost the dearest person in our life. My
mother died because we didn’t have a doctor in our village and the
bad roads had been blocked by snow. I hate the snow ... it’s so
difficult for me when I see other children, their mothers giving them
money, sweets, or kissing them ... I can’t stop crying. We still
39
JD, University of Iowa, Programme Assistant.

40 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
remember our mother and love her.
-Twelve-year-old Mehdi, Afghanistan, 2007. 1
Every day around the world, 1500 women die from pregnancy- or childbirthrelated
complications. 2 Because many pregnant women do not receive the care
they need before, during and after childbirth, up to 1 million pregnant women
die every year from what are considered “largely avoidable causes.” 3 Lack of
health care for the mother during pregnancy and childbirth also leads to tragic
rates of infant mortality. 4 “Maternal and perinatal deaths (stillbirths and first
week deaths) together add up to 6.3 million lives lost every year.” 5 These
deaths are directly linked to inadequate or nonexistent maternal health care for
millions of women everywhere. This paper addresses the problem of maternal
mortality, focusing on the cause of this problem as the denial of maternal health
care to women globally. With the goal of presenting a multifaceted human
rights approach to reducing maternal death around the world, I argue that
maternal health care is a human right. Viewing the right to maternal health care
as a human right is an opportunity to advance a woman-centered approach and
to discern policy alternatives for both states and individuals wishing to
advocate for maternal health care to use existing international human rights law
to do so. 6
1 IRIN, Veil of Tears: Afghan’s stories of loss in childbirth 16 (L. Tunbridge, ed., M. Popalzai, trans., IRIN
2009) (Mehdi and his family live in the Shahristan District in the central province of Daykundi,
Afghanistan, hours away from the nearest health facility).
2 World Health Organization, Maternal Mortality, http://www.who.int/making_pregnancy_safer/ topics/
maternal_mortality/en/index.html (last visited 6 February, 2010).
3 MPs issue maternal deaths warning, BBC News (2 March, 2008), available at http://news.bbc.co.uk/2/hi/
health/7270735.stm. Further, for every woman who dies due to a pregnancy- or childbirth-related
complication, it is estimated that 30 more women will become disabled, injured, or ill because of
pregnancy. Id. See also P. Farmer, Pathologies of Power: Health, Human Rights and the New War on the
Poor 44 (2003) (noting that more than half a million women die each year during childbirth, and
according to analyses of 1995 statistics, 99.8 percent of these deaths occurred in developing countries).
4 Every year across the globe, 3 million babies are stillborn, and nearly 750,000 of these die during birth.
World Health Organization, Maternal Mortality, supra note 2. Additionally, more than 1 million infants
die every year because they are born prematurely. March of Dimes, March of Dimes White Paper on
Preterm Birth: The Global and Regional Toll 3 (March of Dimes Foundation 2009).
5 World Health Organization, Maternal Mortality, supra note 2. The World Health Organization also notes:
“Further many women must live with an obstetric fistula because of childbirth complications, and many
babies are disabled. This combined toll that mother and babies are paying for inadequate services should
be considered when maternal mortality is being discussed.” Id. Obstetric fistula is a serious medical
condition resulting from prolonged, obstructed labor with inadequate medical care, in which a hole
develops between the rectum and the vagina or between the bladder and the vagina. The powerful awardwinning
documentary A Walk to Beautiful, which tells the stories of five Ethiopian women who suffer
from obstetric fistula and who embark on separate journeys in search of a cure and a way to reclaim their
lives and dignity, notes that obstetric fistula is almost entirely preventable. A Walk to Beautiful (Engel
Entertainment 2007). See also, A Walk to Beautiful, http://www.walktobeautiful.com/.
6 I hope to respond to the important argument made by B. Sadasivam, a former Program Coordinator at
Women’s Environment and Development, that “reproductive health advocacy can find itself stymied by
an over-reliance on the rights framework to advance its goals.” In noting that human rights language can
“further politicize deeply sensitive issues of reproduction and sexuality,” Sadasivam argues for a
“women-centered approach to reproductive health” that focuses on trusting women and granting women
the authority and the ability to make reproductive decisions based on adequate information and services.
B. Sadasivam, The Rights Framework in Reproductive Health Advocacy – A Reappraisal, 8 Hastings
Women’s L.J. p. 313, p. 315 and pp. 337-338 (1997). I agree with Sadasivam’s assertion that “even a
broad-based human rights approach does not go to a crucial aspect of the problem: the failure of public
health systems in developing countries,” but I attempt to respond to Sadasivam’s concerns and

THE RIGHT TO MATERNAL HEALTH CARE 41
Part 1 begins by identifying the right to maternal health care as part
of the right to health. Part 2 clarifies the international community policies
establishing maternal health care as a human right. In Part 3, I build from
existing international community policy to develop a multifaceted human
rights approach to prevent maternal mortality. First I note that while the right
to health includes the right to maternal health care, the right to maternal health
care must be separated from the right to health to ensure that international
human rights law is meeting the specific needs, cultural differences and
particular experiences of women. 7 Next, I focus on policy alternatives for
states, using the United States as an example. I then turn to examining how
individuals and non-state actors can use a human rights perspective and frame
strategies within the current international human rights law regime to act to
ensure the right to maternal health care. I conclude by arguing that building
from existing international community policy that establishes maternal health
care as a human right is an opportunity for both states and individuals to act to
prevent maternal mortality globally.
Clarification of the Right to Maternal Health Care
I use the term “maternal health care” to refer to prenatal, obstetric, and
postnatal health care that, at minimum, means: (1) having access to a skilled
health care professional when needed during pregnancy; (2) having a skilled
health care professional present during delivery if desired; (3) the access and
ability to utilize basic emergency obstetric care; 8 and (4) having access to a
skilled health care professional as needed for 42 days after the birth of a child
or the termination of a pregnancy (such as through miscarriage). 9 These four
6 assert that the formal articulations of reproductive rights in international law, which are being advanced
through the development of customary international law and through individual lawsuits, provide a
foundation from which reproductive health advocacy can advance its goals. Id.
7 This statement borrows language from an essay by E. Brems, who uses the theoretical framework of
“inclusive universality” to focus on the “adaptation of international human rights law to the specific needs
and experiences of women.” E. Brems, Protecting the Rights of Women, in International Human Rights in
the 21st Century: Protecting the Rights of Groups 100 (G. M. Lyons & J. Mayall, eds., 2003), reprinted
(with changes from E. Brems) in Human Rights in the World Community: Issues and Action 120, 123 (R.
P. Claude & B. H. Weston eds., 2006).
8 For the definition of “basic” emergency obstetric care that I use, see infra, note 12.
9 Because I use a definition of maternal health care that is specifically tailored to preventing maternal
mortality, at a minimum maternal health care must include access to a skilled health care professional for
42 days after the termination of a pregnancy, whether through birth or through other causes. This is
because the World Health Organization defines maternal death as: “the death of a woman while pregnant
or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from
any cause related to or aggravated by the pregnancy or its management but not from accidental or
incidental causes.” Further, the World Health Organization distinguishes between maternal death (the
cause of which is related to or aggravated by the pregnancy itself) and death during pregnancy (the cause
of which can be accidental or incidental) in stating: “To facilitate the identification of maternal deaths in
circumstances in which cause of death attribution is inadequate, a new category has been introduced:
Pregnancy-related death is defined as the death of a woman while pregnant or within 42 days of
termination of pregnancy, irrespective of the cause of death.” World Health Organization, Maternal
Mortality Ratio, http://www.who.int/healthinfo/statistics/indmaternalmortality/en/index.html (last visited
16 March, 2010).

42 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
minimum standards apply universally, from developing societies to the world’s
wealthiest nations. Ideally maternal health care should include more than
having mere access to a skilled healthcare professional, and states should be
encouraged to go beyond providing only the four minimum standards I set
forth. Nonetheless, because as many as 2/3 of maternal deaths in the world
today are considered to be preventable, even these minimum requirements for
maternal health care would make a tremendous difference in reducing maternal
death globally. 10 The definition of maternal health care that I use draws from
the maternal mortality reduction strategy outlined by Human Rights Watch:
There is broad global consensus on three critical maternalmortality-reducing
strategies – skilled attendance at birth, 11 access
to emergency obstetric care, 12 and access to referral systems ...
Available research suggests that access and ability to utilize
emergency obstetric care will have maximum impact on maternal
mortality ... The most skilled attendant cannot save a woman
experiencing life-threatening pregnancy-related complications
unless she is able to reach the appropriate health facility in time. A
strong referral system is not limited to ambulance services. It must
at a minimum provide obstetric first aid in case of emergencies and
have easily accessible and affordable around-the-clock health care
and referral facilities that connect both private and public health
facilities. For all three core interventions to successfully reduce and
eliminate preventable maternal mortality and morbidity there has to
be a functional public health system. Hence the global priority that
10 See, “e.g.” Birth and Death (White Ribbon Alliance), available at http://www.whiteribbonalliance.org/
resources.cfm?a0=video&play=BirthandDeath (last visited 4 March, 2010) (a short film highlighting the
tragedy of global maternal mortality, which notes that every single minute a woman is lost to the world
because of pregnancy/childbirth complications, and that currently one half of the world’s women give
birth without a health worker present); Human Rights Watch, No Tally of the Anguish (7 October, 2009),
available at http://www.hrw.org/en/node/85773/section/6 and Three-Quarters of Indian Maternal Deaths
Preventable, Study Finds, Medical News Today (12 October, 2009), available at http://
www.medicalnewstoday.com/articles/167001.php.
11 Human Rights Watch states: “Skilled birth attendance refers to the presence of health staff trained in
midwifery at birth. A skilled birth attendant's ability to save a pregnant woman is limited unless she is
supported by a robust health system that includes emergency obstetric care and referral support. Some
experts argue that ‘the skill level of the attendant needed at the peripheral level [sub-district including
village level]...depends upon the ready accessibility and acceptance of referral care.’” Human Rights
Watch, supra note 10.
12 Human Rights Watch defines basic emergency obstetric care as including: “the ability to conduct assisted
vaginal deliveries, remove placenta and retained products, and manage pregnancy complications by
intravenously introducing or injecting anticonvulsants, oxytocic drugs (drugs that expand the cervix or
vagina to facilitate delivery), and antibiotics. Comprehensive emergency obstetric care includes the
ability to provide life-saving interventions including through surgery (cesarean sections) and blood
transfusions. Quality basic and emergency obstetric care are dependent on factors such as availability of
adequate health personnel trained in midwifery skills, specialists such as anesthetists, gynecologists, and
surgeons, adequate infrastructure such as blood banks, blood matching ability, sufficient supply of drugs,
and good referral systems.” Id.

THE RIGHT TO MATERNAL HEALTH CARE 43
is being given to maternal mortality reduction is increasingly hailed
as an opportunity to improve public health systems. 13
Maternal health and maternal health care are to be distinguished. The
right to maternal health (like the right to health generally) encompasses a
range of divergent factors and underlying human rights that must be realized
to fully realize the right to maternal health (such as food, clean water, and
other socio-economic factors). While the underlying conditions that pregnant
women face around the world are a critical part of their right to maternal
health, as an attempt to define a set of minimum standards and to develop
attainable, enforceable duties on governments to prevent maternal mortality, I
focus only on the duty of governments to provide pregnant women with
maternal health care, arguing that duty exists in international human rights
law. 14 Access to abortion, an underlying condition affecting maternal health
generally, often is included in advocating for maternal health protection. I
purposefully avoid discussion about abortion rights in this paper, even though
many advocates for reproductive rights consider abortion rights to be
reproductive rights. 15 While access to abortion services would reduce
unwanted pregnancies, and therefore have some effect on reducing overall
maternal mortality, I do not discuss abortion issues, choosing instead to
examine ways in which to ensure that women have access to health care
during non-intentionally-terminated pregnancy and childbirth. 16 Because
health care during pregnancy and childbirth is known to prevent maternal
mortality, I present policy options to advocate for improved access to health
care services during pregnancy and childbirth by using international human
rights law.
13 Id.
14 This duty on governments to provide maternal health care could be considered a “positive human right.”
In arguing that the right to health should be conceived as a negative right, B. Jessie Hill, Associate
Professor and Associate Director of the Center for Social Justice at Case Western Reserve University
School of Law, distinguishes between positive and negative rights: “A positive right is generally
considered to be an entitlement to something – a right to call on the government to provide, at government
expense, a particular public good, such as shelter, education or medical care. Such rights are sometimes
referred to as ‘socio-economic rights,’ and they are recognized as constitutional rights in a number of
foreign countries. International law and numerous national constitutions, moreover, specifically recognize
a right to health, which is in most instances understood as a positive entitlement to health care. Negative
rights, by contrast, are simply rights to be free of governmental interference with one’s decision to do
something; they are ‘negative checks on government, preserving a sphere of private immunity.’” B. J.
Hill, Reproductive Rights as Health Care Rights, 18 Colum. J. Gender & L. (2009) p. 501, pp. 502-503.
15 See, “e.g” Center for Reproductive Rights, Our Issues, http://reproductiverights.org/en/our-issues (last
visited 15 April, 2010).
16 For comprehensive discussions on abortion rights as reproductive rights central to protecting women’s
health, see, e.g., Hill, supra note 14.

44 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Part 1: The Right to Health and The Right to Maternal
Health Care
The human right to health has been recognized in several fundamental human
rights instruments, and numerous international agreements articulate state
responsibility for the right to health. 17 Among the international instruments
recognizing the human right to health are the Universal Declaration of Human
Rights, 18 the International Covenant on Economic, Social and Cultural
Rights, 19 the International Convention on the Elimination of All Forms of
Racial Discrimination, 20 the Convention on the Elimination of All Forms of
Discrimination Against Women, 21 and the Convention on the Rights of the
Child. 22 “Several regional human rights instruments also recognize the right to
health, such as the European Social Charter of 1961 as revised (article 11), the
African Charter on Human and Peoples' Rights of 1981 (artricle 16) and the
Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights of 1988 (article 10).” 23 Perhaps the
most widely used and accepted definition of “health” in international human
rights law at present is contained in the preamble to the Constitution of the
World Health Organization (“WHO”). 24 The WHO Constitution states:
“Health is a state of complete physical, mental and social well-being and not
merely the absence of disease and infirmity.” 25 Maternal health care falls under
17 B. C. A. Toebes, The Right to Health as a Human Right in International Law 4 (1999). Toebes provides a
comprehensive and detailed examination of the right to health in her book, from examining the right to
health in international treaties and declarations to discussing the implementation of the right to health. As
a thorough discussion of the right to health in international law is beyond the scope of this paper, this
author recommends Toebes for a complete study of the right to health. See also Realizing the Right to
Health (A. Clapham & M. Robinson eds., 2009), the third of the Swiss Human Rights books available at
http://www.swisshumanrightsbook.com/SHRB/shrb_03.html.
18 Universal Declaration of Human Rights, G.A. Res. 217A, at Article 25(1) (10 December, 1948), available
at http://www.un.org/Overview/rights.html, reprinted in Health and Human Rights: Basic International
Documents 1, 3 (S. P. Marks ed., 2006) [hereinafter Universal Declaration].
19 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A, at Article 12 (16
December, 1966), reprinted in Health and Human Rights: Basic International Documents 4, 7 (S. P.
Marks ed., 2006) [hereinafter CESCR].
20 International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106, at
Article 5(e) (iv) (21 December, 1965), reprinted in Health and Human Rights: Basic International
Documents 81, 81 (S. P. Marks ed., 2006).
21 Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, at
Article. 11.1(f) and Article. 12 (18 December, 1979), reprinted in Health and Human Rights: Basic
International Documents 81, 81 (S. P. Marks ed., 2006) [hereinafter CEDAW].
22 Convention on the Rights of the Child, G.A. Res. 44/25, at Article 24 (20 November, 1989), reprinted in
Health and Human Rights: Basic International Documents 249, 255 (S. P. Marks, ed., 2006) [hereinafter
CRC]. See also A. Eide & W. B. Eide, Article 24: The Right to Health, in A Commentary on the United
Nations Convention on the Rights of the Child (A. Alen et al. eds., 2006).
23 UN Econ. & Soc. Council [ECOSOC], The right to the highest attainable standard of health: Substantive
Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural
Rights 2, E/C.12/2000/4 (11 August, 2000) (General Comment No. 14) [hereinafter ECOSOC General
Comment].
24 I. L. Feitshans, Is There a Human Right to Reproductive Health? 8 Tex. J. Women & L. 93, 97 (1998) and
Toebes, supra note 17, at 24.
25 Preamble to the Constitution of the World Health Organization as adopted by the International Health
Conference (19-22 June, 1946), available at http://www.who.int/governance/eb/constitution/en/
index.html.

THE RIGHT TO MATERNAL HEALTH CARE 45
the right to health as a form of health care that individuals are entitled to as part
of the overarching right to health. In other words, the right to health
encompasses the right to maternal health care.
The health of pregnant women was not specifically recognized as
part of the right to health until the 1994 Programme of Action of the
International Conference on Population and Development (“ICPD”). 26 The
ICPD Programme of Action embraced the right to “reproductive health” and
emulated the WHO definition of health in stating: “Reproductive health is a
state of complete physical, mental and social well-being and not merely the
absence of disease and infirmity in all matters relating to the reproductive
system and its functions and processes.” 27 The ICPD Programme of Action
also noted that implicit to any reproductive rights was “the right of access to
appropriate health-care services that will enable women to go safely through
pregnancy and childbirth and provide couples with the best chance of having a
healthy infant.” 28 The ICPD Programme of Action’s “holistic approach” to
reproductive rights was endorsed at the 1995 Beijing Women’s Conference,
which again placed reproductive rights firmly within the right to health
framework. 29
Part 2: Description and Analysis of Past Trends in
Establishing the Right to Maternal Health Care
The 1994 ICPD Programme of Action encompassed a broad spectrum of
reproductive health needs, and symbolized a significant departure from early
articulations of reproductive rights in international law. 30 Early attempts to
articulate reproductive rights were heavily influenced by the population control
movement, such as the 1968 International Conference on Human Rights and
the 1974 World Population Plan of Action, both of which recognized
reproductive rights as the right of all couples to decide freely and responsibly
the number and spacing of their children and the right to have the information,
26 Feitshans, supra note 24, p. 115.
27 United Nations, Programme of Action of the International Conference on Population and Development
7.2 (1994), UN Doc. A/CONF.171/13 (18 October, 1994), reprinted in Health and Human Rights: Basic
International Documents 223, 225 (S. P. Marks, ed., 2006) [hereinafter ICPD Programme of Action].
28 Id. The ICPD also defined reproductive health care as “the constellation of methods, techniques and
services that contribute to reproductive health and well-being by preventing and solving reproductive
health problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations, and not merely counseling and care related to reproduction and sexually transmitted
diseases.” Id.
29 Sadasivam, supra note 6, pp. 321-323. In 1995, the UN Fourth World Conference on Women met in
Beijing, and instead of attempting to write a treaty issued an extremely detailed “Platform Document”
which reflected the voices and interests of the thousands of participants. Feitshans, supra note 24, at 107.
The Platform for Action “placed reproductive rights squarely within human rights already recognized in
national laws, international human rights documents and other consensus documents.” Sadasivam, supra
note 6, p. 323. See also, United Nations, Platform of Action of the Fourth World Conference on Women
(1995), UN Doc. A/CONF.177/20 (17 October, 1995), reprinted in Health and Human Rights: Basic
International Documents 229 (S. P. Marks, ed., 2006) [hereinafter Beijing Platform for Action].
30 Sadasivam, supra note 6, pp. 318-321.

46 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
education and the means to do so – in other words, the right to family planning
services. 31 The rights to decide how many children to have/when to have them
and to receive family planning services, while important, did little to ensure
that women were receiving health care services during pregnancy and birth.
With the focus on the world’s need for fewer births, the early enunciations of
reproductive rights gave women little autonomy. Thus starting in the 1970s, the
international women’s rights movement worked to clarify the right to
reproductive health, de-linking reproductive rights from population control “to
promote the perspective that women have an unencumbered right to
reproductive health and choice.” 32
In 1979, the Convention on the Elimination of All Forms of
Discrimination Against Women (“CEDAW”) stated: “states parties shall
ensure to women appropriate services in connection with pregnancy,
confinement and the post-natal period, granting free services where necessary,
as well as adequate nutrition during pregnancy and lactation.” 33 In 1994, the
UN ICPD Programme of Action explicitly recognized the right of women to
go through pregnancy and childbirth safely for the first time in the
international community. 34 The following year at the UN Fourth World
Conference on Women in Beijing (the “Beijing Women’s Conference”), the
1995 Beijing Platform for Action again recognized this right of women,
stating that implicit to the right of reproductive health is: “the right of access
to appropriate health-care services that will enable women to go safely
through pregnancy and childbirth and provide couples with the best chance of
having a healthy infant.” 35 In 2000, Goal 5 of the Millennium Development
Goals 36 was to “Improve Maternal Health” and listed two targets: reducing by
three quarters the maternal mortality ratio and achieving universal access to
reproductive health. 37
In 2009, reaffirming the ICPD Programme of Action, the Beijing
Platform for Action, the 2000 Millennium Declaration, the 2005 World
31 Id. p. 318.
32 Id. p. 320. Sadasivam elaborates, writing that feminist scholars “emphasize that this right should be
protected from manipulation by individuals, states or collectives. Women’s rights advocates have also
called for the recognition of women’s right to health, including reproductive health, because it is socially
and politically dependent upon the environments women inhabit.” Id.
33 CEDAW, supra note 21, at Art. 12(2).
34 S. Gruskin et al, Using human rights to improve maternal and neonatal health: history, connections and a
proposed practical approach, 86(8) Bull. World Health Org. 2 (2008), available at http://
www.scielosp.org/scielo.php?pid=S0042-96862008000800010&script=sci_arttext&tlng=en.
35 Beijing Platform for Action, supra note 29, at 94.
36 The Millennium Development Goals (“MDGs”) are eight goals drawn from the actions and targets
contained in the Millennium Declaration that was adopted by 189 nations-and signed by 147 heads of
state and governments during the United Nations Millennium Summit in September 2000. The MDGs
respond to the world's main development challenges. United Nations Development Programme, About
the MDGs: Basics, http://www.undp.org/mdg/basics.shtml (last visited 15 April, 2010).
37 United Nations, Millennium Development Goals, available at http://www.un.org/millenniumgoals/ (last
visited 4 March, 2010). Goal 5 is closely linked to Goal 4, which is to “Reduce Child Mortality” and has
as its target reducing by two thirds, between 1990 and 2015, the under-five mortality rate. Id.

THE RIGHT TO MATERNAL HEALTH CARE 47
Summit Outcome, 38 and the Millennium Development Goals, the UN Human
Rights Council adopted the “Resolution on Preventable Maternal Mortality and
Morbidity and Human Rights” (“Maternal Mortality Resolution”). 39 The
Maternal Mortality Resolution recalled the obligations of states parties to the
CEDAW, the Convention on the Rights of the Child, the CESCR, and other
international agreements in expressing “grave concern at the unacceptably high
global rate of preventable maternal mortality and morbidity.” 40 Specifically,
the Maternal Mortality Resolution recognized that most instances of maternal
mortality and morbidity are preventable, and that the rates of maternal
mortality and morbidity are a human rights challenge. The Maternal Mortality
Resolution called on all states to:
Renew their political commitment to eliminating preventable
maternal mortality and morbidity at the local, national, regional and
international levels, and to redouble their efforts to ensure the full
and effective implementation of their human rights obligations…in
particular the [Millennium Development Goals] on improving
maternal health and promoting gender equality and empowering
women, including through the allocation of necessary domestic
resources to health systems. [Further, the Maternal Mortality
Resolution requests] states to give renewed emphasis to maternal
mortality and morbidity initiatives in their development
partnerships and cooperation arrangements, including through
honouring existing commitments and considering new
commitments, and the exchange of effective practices and technical
assistance to strengthen national capacities, as well as to integrate a
human rights perspective into such initiatives, addressing the impact
that discrimination against women has on maternal mortality and
morbidity. 41
This “landmark resolution” 42 confirms that the right to maternal
health care is a human right already recognized in international human rights
law. In other words, certain international instruments illustrate that
38 The 2005 World Summit met in September 2005 and brought together more than 170 heads of state and
government at the United Nations to make decisions in the areas of development, security, human rights
and reform of the United Nations. Id. The 2005 World Summit Outcome Document reaffirmed the UN
Millennium Declaration. United Nations, General Assembly Resolution on 2005 World Summit Outcome
(2005) UN Doc. A/RES/60/1 (24 October, 2005) [hereinafter World Summit Outcome].
39 United Nations Human Rights Council, General Assembly Resolution on Preventable Maternal Mortality
and Morbidity and Human Rights (2009), UN Doc. A/HRC/11/L.16/Rev.1 (16 June, 2009) [hereinafter
Maternal Mortality Resolution].
40 Id. p. 3.
41 Id. pp. 3-4.
42 Posting of S. Sirkin to Physicians for Human Rights Blog, On Human Rights Day, Commit to End
Maternal Mortality, http://phrblog.org/blog/2009/12/10/on-human-rights-day-commit-to-end-maternalmortality/
(10 December, 2009).

48 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
international community policies recognizing the right to maternal health care
exist, and individuals and states wishing to ensure the right to maternal health
care can build from these existing international community policies in
international human rights law.
To summarize, there are six main international instruments that
address the right to maternal health care: the CEDAW; the ICPD Programme
of Action; the Beijing Platform for Action; the Millennium Development
Goals; the World Summit Outcome; and the Maternal Mortality Resolution.
These international instruments both reflect and further establish international
community policy that recognizes the human right to maternal health care.
Each instrument plays a part in establishing a different piece of the
multifaceted right to maternal health care.
Clarification of International Community Policies
Establishing the Right to Maternal Health Care (Table 1)
Year
International
Instrument
1979 Convention on the
Elimination of All Forms
of Discrimination Against
Women (CEDAW) a
1994 International Conference
on Population and
Development (ICPD)
Programme of Action c
1995 Beijing Platform for
Action d
2000 Millennium Development
Goals e
International
Community Policy
Established by the
Instrument
Women should be ensured
appropriate services in
connection with pregnancy
and the post-natal period. b
Women have the right to go
through pregnancy and
childbirth safely, including
the right of access to
appropriate health care
services that enable women
to go safely through
pregnancy and childbirth.
Women have the right to go
through pregnancy and
childbirth safely, including
the right of access to
appropriate health care
services that enable women
to go safely through
pregnancy and childbirth.
The right to access
reproductive health should
be universal.

THE RIGHT TO MATERNAL HEALTH CARE 49
2005 World Summit Outcome f States are committed to
achieving universal access
to reproductive health by
2015 as set out in the
Millennium Development
Goals.
2009 Maternal Mortality
Resolution g
The right of a woman or
girl to achieve the highest
attainable standard of
sexual and reproductive
health is a human right.
States have a political
commitment to eliminating
preventable maternal
mortality and to ensure the
full and effective
implementation of their
human rights obligations.
a. CEDAW, supra note 21, at Article. 12(2).
b. In monitoring the CEDAW, the Committee on the Elimination of Discrimination Against Women further
develops this policy by noting that it is discriminatory for a state party to refuse to legally provide for the
performance of certain reproductive health services for women, states parties are obligated to eliminate
barriers to women’s access to appropriate health care, and states are to report on the measures they have
taken to ensure timely access to the range of services related to reproductive health in general. United
Nations, Committee on the Elimination of Discrimination Against Women, General Recommendation
No. 24: Women and Health Article. 12(1) (1999), reprinted in HEALTH AND HUMAN RIGHTS: BASIC
INTERNATIONAL DOCUMENTS 241, 241-244 (S. P. Marks, ed., 2006).
c. ICPD Programme of Action, supra note 27.
d. Beijing Platform for Action, supra note 29.
e. Millennium Development Goals, supra note 37.
f. World Summit Outcome, supra note 38, at 57(g).
g. Maternal Mortality Resolution, supra note 39.
The above international community policies ought to be controlling
in developing the right to maternal health care. Indeed, international initiatives
and conferences have developed the above policies to build the human right to
maternal health care since the late 1980s.
Trends in Using Existing International Community Policy to
Build the Right to Maternal Health Care
In 1987, the United Nations Population Fund (“UNFPA”), the World Bank and
WHO sponsored the International Safe Motherhood Conference in Nairobi,
Kenya, initiating the Safe Motherhood Initiative. 43 The 1987 Safe Motherhood
43 Safe motherhood initiative: 20 years and counting, 368 The Lancet 1130 (30 September, 2006), available
at www.thelancet.com. The Safe Motherhood Initiative (“SMI”) was launched “by international agencies
and governments to raise global awareness about the impact of maternal mortality and morbidity, and find
solutions. It was co-sponsored by seven agencies, UNFPA, UNDP, UNICEF, WHO, IPPF, the Population
Council and the World Bank.” United Nations Polulation Fund, Safe Motherhood, 10 EVALUATION
FINDINGS 1 (January, 1999) [hereinafter UNFPA Safe Motherhood Evaluation].

50 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Conference launched “the global campaign to reduce maternal mortality” and
had two key action messages: (1) “any pregnant woman can develop lifethreatening
complications with little or no advance warning, so all women need
access to quality maternal health services that can detect and manage lifethreatening
complications” and (2) the presence of a health-worker with
midwifery skills at every childbirth should be ensured. 44 In 1997, the focus of
the Safe Motherhood Initiative shifted away from encouraging mass-training
programs for traditional birth attendants to prioritizing health-sector
interventions, which were designed to increase women’s access to a
professional medical during pregnancy and childbirth, especially for lifethreatening
complications. 45 The Safe Motherhood Initiative, launched by
international agencies and governments, immediately found support in many
other international coalitions and confederations, such as the International
Confederation of Midwives (“ICM”). 46 The ICM, for example, used the Safe
Motherhood Initiative to campaign for health care for pregnant woman to
combat maternal mortality. 47 The “ICM’s clear message in the campaign for
Safe Motherhood, which has been widely agreed [with] by other agencies, is
that care during childbirth from an attendant with midwifery skills is the single
most effective way to reduce maternal death.” 48
The Safe Motherhood Initiative developed along with the
international community policies that continued to be established in
international instruments after 1994. In 2004, WHO published a joint
statement with ICM called “Making Pregnancy Safer,” which again
emphasized the critical role of a skilled health care attendant at a birth in
reducing maternal mortality, and comprised WHO’s own then-current drive
toward Safe Motherhood. 49 ICM itself today works with other “professional
federations,” such as the International Federation for Gynecologists and
Obstetricians (“FIGO”), the International Council of Nurses (“ICN”) and
partners with the Partnership for Safe Motherhood and New Born Health in
advancing the goals of the Safe Motherhood Initiative. 50 United Nations
agencies have also used the Safe Motherhood Initiative as impetus to develop
priorities and programs to combat maternal mortality. As new international
instruments have shaped international community policy, the resulting
projects designed to reduce maternal mortality have also been reshaped. Since
the ICPD Programme of Action established in international community policy
the recognition that women have the right to go through pregnancy and
44 Safe motherhood initiative, supra note 50.
45 Id.
46 International Confederation of Midwives, The Safe Motherhood Initiative, http://
www.internationalmidwives.org/TheSafeMotherhoodInitiative/tabid/616/Default.aspx (last visited 4
March, 2010).
47 Id.
48 Id.
49 Id.
50 Id.

THE RIGHT TO MATERNAL HEALTH CARE 51
childbirth safely, including the right of access to appropriate health care
services during pregnancy and childbirth, United Nations agencies have been
able to approach reducing maternal mortality as a “human rights
imperative.” 51
Drawing from the layers of international community policy that have
been established by new international instruments since 1994 (see above
table), United Nations organizations, such as UNFPA, have implemented
strategies to reduce maternal mortality. UNFPA uses a three-pronged strategy
to work toward the Millennium Development Goal of reducing maternal death
globally: “(1) All women have access to contraception to avoid unintended
pregnancies; (2) All pregnant women have access to skilled care at the time of
birth; and (3) All those with complications have timely access to quality
emergency obstetric care.” 52 Using this three-pronged strategy and drawing
from international community policy as enunciated in the Millennium
Development Goals, UNFPA has established the Maternal Health Thematic
Fund to “increase the capacity of national health systems to provide a broad
range of quality maternal health services, reduce health inequities, and
empower women to exercise their right to maternal health.” 53 UNFPA has
also joined with UNICEF, the World Bank and WHO – the four agencies
collectively are known as “The Health 4” or “H4” – to enhance support to the
sixty countries with the highest maternal mortality rates. 54 UN agencies are
not alone in using a human rights approach to combat maternal mortality.
The International Initiative on Maternal Mortality and Human Rights
(“IIMMHR”), which is a partnership of “international, regional, and national
civil society organizations” also seeks to make recognizing the connection
between maternal mortality and human rights a political priority. 55 In
promoting government accountability for the implementation of policies to
reduce maternal mortality, IIMMHR lists five “core global commitments that
address maternal mortality,” including the Millennium Development Goals,
the Beijing Platform for Action, the World Summit Outcome and the ICPD
Programme of Action among the five. 56 IIMMHR uses international
instruments to establish that international community policy dictates that the
reduction of maternal mortality is a human rights imperative. In so doing,
IIMMHR is able to place attainable obligations on governments to eliminate
preventable maternal mortality. Perhaps the most important obligation, at least
the most effective in reducing maternal mortality, is to provide maternal
51 United Nations Population Fund, Safe Motherhood, http://www.unfpa.org/public/mothers/consensus.html
(last visited 4 March, 2010).
52 Id.
53 Id.
54 Id.
55 IIMMHR, About Us, http://righttomaternalhealth.org/about-us/about (last visited 4 March, 2010).
56 International Initiative on Maternal Mortality and Human Rights Brochure, available at http://
righttomaternalhealth.org/about-us/about (last visited 4 March, 2010).

52 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
health care.
Since the late 1980s, the trend has been that international groups, at
times partnered with representatives from state governments, play a back and
forth with the international policies establishing the right to maternal health
care as a human right. International groups (UN agencies, other coalitions,
partnerships, confederations, initiatives and professional federations) inform
the development of the international instruments, which both codify and
establish international community policy on the right to maternal health care.
At the same time, international community policy informs the work that
international groups are doing. For example, over time, international
conferences have formulated maternal mortality as a human rights issue,
resulting in international instruments now treating the right to maternal health
care as a human right. The 1994 ICPD Conference, the 1995 Beijing
Women’s Conference and the 1997 Tenth Anniversary Safe Motherhood
Consultation 57 all focused on maternal mortality as a social injustice and
helped to redefine preventable maternal mortality in terms of being a violation
of rights, including the right to maternal health care.
As Bharati Sadasivam, a former Program Coordinator at Women’s
Environment and Development, has noted, the declarations and statements
from such conferences:
Although lacking the binding nature of treaty law, [have] undeniable
value in advancing reproductive health goals. First, these
declarations and statements add to the practice of customary law.
Although UN conference documents are not legally binding, they
are politically enforceable since they represent a consensus among
all member nations. Second, they shape domestic law by giving
advocates the language to make legal demands, foster a rights
debate and ensure informal obligations on the part of state and nonstate
actors. The impact of conference statements and declarations
on customary and domestic law is critical given the scant
international and domestic jurisprudence on women’s health and the
absence of case law. 58
Adding to this vast body of conference declarations and statements
are statements issued by UN organizations, such as in 1999, when the Health 4
issued a joint statement asserting that for women, “human rights include
access to services that will ensure safe pregnancy and childbirth.” 59 This year,
57 In 1997 a thematic evaluation was conducted to assess the “relevance, efficiency, effectiveness and
impact of UNFPA-supported Safe Motherhood strategies” under the Safe Motherhood Initiative. UNFPA
Safe Motherhood Evaluation, supra note 50, p. 1.
58 Sadasivam, supra note 6, p. 323.
59 World Health Organization, Reduction of Maternal Mortality: A Joint WHO/UNFPA/UNICEF/World
Bank Statement (1999).

THE RIGHT TO MATERNAL HEALTH CARE 53
the UN Commission on the Status of Women (“CSW”) plans to undertake a
review of the implementation of the Beijing Platform for Action at its 54th
session (informally called “Beijing +15”) and with the landmark 2009
Maternal Mortality Resolution so recently adopted by the Human Rights
Council, the CSW session and the conclusions it reaches will likely be shaped
by the international community policy codified in the Maternal Mortality
Resolution. 60 In turn, the member states, the representatives of nongovernmental
organizations and the representatives of UN entities
participating in the 2010 CSW review of the Beijing Platform for Action will
go on to influence future development regarding the right to maternal health
care.
Projection of Future Trends in Establishing the Right to
Maternal Health Care
The Maternal Mortality Resolution called on states to integrate a human rights
perspective into initiatives to eliminate preventable maternal mortality and
morbidity. 61 The right to maternal health care has been increasingly recognized
as a human right in international instruments and in international community
policies, as reflected in initiatives, declarations and statements made by UN
agencies and other international (including non-governmental) organizations.
The dialogic relationship between community policy (both international and
domestic) on the one hand, and the codification of such policy in international
instruments on the other, is an expansion of the relationship between customary
international law and international law in its binding form. The relationship is
both dialogic and cyclical, as illustrated below.
60 This session of the UN Commission on the Status of Women (“CSW”) will mark the 15 th anniversary of
the Beijing Fourth World Conference on Women. Therefore the CSW session will embark on a 15-year
review of the Beijing Platform for Action and “emphasis will be placed on the sharing of experiences and
good practices, with a view to overcoming remaining obstacles and new challenges, including those
related to the Millennium Development Goals.” The CSW session is scheduled for March 1-15, 2010.
United Nations Division for the Advancement of Women, Beijing +15, http://www.un.org/womenwatch/
daw/beijing15/index.html (last visited 4 March, 2010).
61 Maternal Mortality Resolution, supra note 39, pp. 3-4.

54 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
What this means for the right to maternal health care is that, starting
in the 1970s with the women’s movement’s work to clarify the right to
reproductive health, significant non-binding declarations, statements and
documents were produced that influenced community policy at all levels,
customary international law, and eventually binding treaties. Once the process
began to move maternal health care from being a social value to a human
right, 62 the wheels were in motion for this interdependent process to occur. As
a result, today the right to maternal health care is recognized in all four
“forms” – in community policy, in customary international law, in
international instruments, and in the international declarations, statements and
conference documents being produced even as this paper is read.
I predict that the development of the right to maternal health care will
continue in the future, strengthening maternal health care as an identifiable
right along the lines of other civil and political rights currently more
recognized in international human rights law. This prediction is based on the
fact that the importance of recognizing maternal health care as a human right
remains at the forefront of international discussions about human rights,
women’s issues and health care. There are no fewer than 13 international
62 See infra Part 3.

THE RIGHT TO MATERNAL HEALTH CARE 55
events scheduled for 2010 alone that will bring maternal health care into the
spotlight, at least in some capacity, including the UN Human Rights Council’s
14 th session, in which the Human Rights Council plans to follow up on the
Maternal Mortality Resolution. 63 During the CSW session reviewing the
Beijing Platform for Action, at least one panel discussion will focus on
maternal health care: “Maternal Mortality – rights of ‘critical concern’ within
and beyond Beijing” is a panel discussion co-sponsored by the Center for
Economic and Social Rights, Amnesty International, Action Canada for
Population and Development, Center for Reproductive Rights, Human Rights
Watch, International Initiative on Maternal Mortality and Human Rights,
International Planned Parenthood Federation, Ipas, and the Women's Global
Network for Reproductive Rights. 64 These agencies recognize maternal
mortality as “an issue of gender justice, as well as social and economic
justice,” and advocate for the right to maternal health (including the right to
maternal health care) as a human right that is “about the human rights of
women, not only the rights to life and to health, but about failures to meet the
full range of economic and social rights that contribute to the underlying
poverty and deprivation that results in maternal mortality.” 65 Amnesty
International, for example, has articulated the right to maternal healthcare in
stating: “Women have the right to not be denied maternal health care, which
should be accessible, affordable, adequate and of sufficiently high quality,
taking into account their cultural needs. They have the right to access health
care without discrimination.” 66 As the right to maternal health care continues
to develop in the future, new approaches are needed, both to further develop
international law recognizing maternal health care as a human right, and to
work to ensure the right to maternal health care globally.
Part 3: A Multifaceted Human Rights Approach to Prevent
Maternal Mortality
The DFID Health Resource Centre, which provides technical assistance and
information to the British Government’s Department for International
Development, has noted that: “carefully contextualized rights-based
63 Center for Economic and Social Rights, Dying While Giving Life? Maternal Mortality is a Human Rights
Issue: International Events, http://www.cesr.org/article.php?id=772 (last visited 4 March, 2010)
[hereinafter 2010 International Events].
64 Id. These panel discussions sponsored by NGOs also produce important documents that contribute to
informing the development of maternal health care as a right within the human rights framework. For
example, in 2009, at the 11 th Session of the UN Human Rights Council, NGOs brought together a panel
of international and national experts as a side-event to discuss the need for a human rights perspective in
combating maternal mortality. See Center for Reproductive Rights et al., Combating Maternal Mortality:
Why Bring Human Rights into the Picture? (5 June, 2009).
65 2010 International Events, supra note 70.
66 Amnesty International USA, Right to Maternal Health Care, http://www.amnestyusa.org/violenceagainst-women/stop-violence-against-women-svaw/right-to-maternal-health-care/page.do?id=1351018
(last visited 4 March, 2010).

56 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
approaches can add a critical impetus to existing means of reducing maternal
mortality.” 67 Burns Weston has examined child labor as a multidimensional
human rights problem and elaborated a “multifaceted problem-solving/policyimplementing
typology” that outlines human rights strategies for all actors
(from individuals to states) in the international community to work to abolish
child labor. 68 Though this paper will not go as in depth as Weston has in
outlining his typology, I also seek to provide policy alternatives for both
individuals and states to utilize existing international law, and to go beyond
using only the law, to prevent global maternal mortality. As Weston writes in
the child labor context:
Though formal legal institutions and procedures created specifically
to promote and protect human rights are indispensable components
of a comprehensive strategy for the abolition of child labor, they are
by no means the only components – indeed, not even the most
effective or important in many instances. As previously stated, the
abolition of child labor requires broad and deep social change, and
for this is needed far more than the formal legal establishment, even
when dedicated specifically to the promotion and protection of
human rights. 69
Weston argues that bottom-up or grass roots approaches, approaches
in what he names “extra-legal” realms, are intrinsic to the approaching the
problem of child labor. 70 Similarly, solving the problem of global maternal
death requires “extra-legal” approaches, and such approaches must be grass
roots or bottom-up to address the local reasons that the human right to
maternal health care is not being recognized.
Maternal death is universal. While the problems of maternal and
infant mortality are most acute in developing countries, women in rich and
medically advanced nations like the United States also still face shocking
barriers to receiving adequate services during pregnancy and childbirth. 71
67 K. Hawkins, Developing a Human Rights-Based Approach to Addressing Maternal Mortality: Desk
Review (DFID Health Resource Centre 2005).
68 B. Weston, Child Labor in Human Rights Law and Policy Perspective, in Human Rights in Labor and
Employment Relations: International and Domestic Perspectives, chapter 4 at 73-121 (Labor and
Employment Relations Association Series, J. A. Gross & L. Compa eds., 2009).
69 Id. at 104.
70 Id. at 105.
71 Disparities in access to primary health care between populations in the United States based on race and
socioeconomic status are well documented. The 2008 National Health Care Disparities Report mandated
by Congress in 42 U.S.C. 299a1(a)(6) noted that “Americans too often do not receive the care they need
or they receive care that causes harm.” Agency for Health Care Research and Quality, 2008 National
Health Care Disparities Report 1 (March 2009) available at http://www.ahrq.gov/qual/nhdr08/
nhdr08.pdf. With regard to maternal health care, the 2008 report found that the rate of pregnant African-
American women who did not receive prenatal care in the first trimester was 1.6 times higher than the rate
for white American pregnant women; for American Indian and Alaska Native women, the rate of
pregnant women not receiving prenatal care in the first trimester was 2.1 times higher than white

THE RIGHT TO MATERNAL HEALTH CARE 57
There are many reasons why pregnant women may not receive the care they
need. 72 Even in countries where maternal health care is more readily
available, negative or discriminatory attitudes toward women can prevent
women from accessing the care that is available. 73 To be truly effective, a
human rights strategy to advocate for maternal health care requires advocacy
at all levels, from local organizations to intergovernmental organizations. 74
As illustrated in the above diagram, local realms inform international realms,
and vice versa, and the interactions work to develop international human
rights law. Mobilizing local communities, raising awareness, improving
education and strengthening governmental abilities to provide the minimum
71 American pregnant women; and the rate of pregnant Hispanic American women not receiving prenatal
care in the first trimester was 2.0 times higher than non-Hispanic white American pregnant women. Id. at
Table H.1, 9-10. In the United States, race can affect both an individual’s access to care independent of
socioeconomic status, as well as the medical treatment an individual receives, also regardless of
socioeconomic status. This is documented in the obstetrical treatment received by African-Americans
versus European-Americans. V. R. Randall, Racist health care: reforming an unjust health care system to
meet the needs of African-Americans, in Justice and Health Care: Comparative Perspectives 147, 187 (A.
Grubb & M. J. Mehlman eds., 1995).
72 The World Health Organization (WHO) notes that many pregnant women do not receive care “because
there are no services where they live, they cannot afford the services because they are too expensive or
reaching them is too costly.” Further, some women may decide not to use the services available to them
“because they do not like how care is provided or because the health services are not delivering highquality
care.” Finally, WHO recognizes that cultural beliefs and a women’s “low status in society” can
also prevent a pregnant woman from getting the care she needs. World Health Organization, Maternal
Mortality, supra note 2.
73 For example, in discussing a recent Amnesty International report on maternal death in Burkina Faso
(where 2,000 women die every year from complications during pregnancy and birth), Claudio Cordone,
interim Secretary General of Amnesty International stated: “Women in Burkina Faso are trapped in a
vicious cycle of discrimination which makes giving birth potentially lethal.” This “cycle of
discrimination” refers to the fact that “most women in Burkina Faso are subordinate to the men in their
lives with little or no control over key decisions such as when to seek medical care and the timing and
spacing of their pregnancies in spite of having equal status under Burkinabe law.” Further, women and
girls in Burkina Faso continue to be subjected to early marriages and female genital mutilation. Amnesty
International, Pregnant Women in Burkina Faso Dying Because of Discrimination (27 January, 2010),
http://www.amnesty.org/en/news-and-updates/report/pregnant-women-burkina-faso-dying-becausediscrimination-20100127.
In an article examining strategies used by human rights NGOs in their work,
Alicia Ely Yamin, former Director of Research and Investigations at Physicians for Human Rights, used
an individual narrative to describe the dire consequences of societal discrimination against women in
Peru. In detailing the death of a twenty-five year old woman named Elena who was very ill after giving
birth to her third child, Yamin writes: “The young doctor, Elena’s husband and brother-in-law and the
[community health worker] began debating [whether to take Elena many hours away to the district
hospital] in Spanish. Throughout, neither Elena nor her sisters-in-law, who in any case only spoke
Aymara, was ever consulted. Her husband was told that he would at least have to pay for the pick-up
truck’s gas – which could add up to more than the price of a cow – and, if Elena died at the hospital, he
would have to pay to have the body brought back too. Her husband and brother-in-law decided not to
move Elena, and she died a few hours later of a postpartum hemorrhage.” A. E. Yamin, The Future in the
Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social, and Cultural
Rights into the Mainstream Human Rights Agenda, 27 HUM. RTS. Q. 1200 (2005), reprinted in Health and
Human Rights 85, 86-87 (R. Cook & C. Ngwena eds., 2007).
74 Yamin writes on the importance of a human rights perspective in policymaking and advocacy in public
health, and asks what a human rights perspective might add to the individual story of Elena, the young
woman who died after childbirth in Peru because of her lack of access to maternal health care: “a human
rights lens underscores that death from pregnancy-related causes is not ‘natural,’ but rather a product of
social priorities and policy decisions; it changes why Elena’s death matters from a question of
productivity lost or personal tragedy to one of injustice; it focuses the analysis on different forms of
discrimination; it forces us to look at the state’s accountability for Elena’s situation; it demands that we
ask why those affected do not participate in the relevant decisions at all levels; it calls for multi-sectoral
strategies, which connect health to infrastructure, education, and the like; and many other possibilities.”
Yamin, supra note 80, at 1202. See also A. E. Yamin, Challenges and Possibilities for Innovative Praxis
in Health and Human Rights: Reflections from Peru, 6 HEALTH & HUM. RTS. 35, 36-40 (2002).

58 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
standards of maternal health care are all aspects of a comprehensive approach
to ensuring the right to maternal health care. 75 Using a human rights
perspective to approach the global problem of maternal mortality will help
achieve the “fundamental shift in thinking and action [that] is required if
progress towards reducing maternal mortality is to be achieved.” 76 Maternal
mortality is caused by acknowledged, documented and universal
determinants. 77 “These determinants are often mutually reinforcing, and
directly linked to poverty.” 78 Approaching the right to maternal health care as
a human right is a way to comprehensively address the varying but
interrelated determinants of maternal mortality, as well as a way to bring a
woman-centered approach into international efforts to eliminate preventable
maternal mortality.
Separating the Right to Maternal Health Care from the
Right to Health
Viewing the right to maternal health care as a human right that stands on its
own, apart from the right to health framework, achieves greater protection for
the right to maternal health care. 79 The right to maternal health care is integral
75 Maha Muna, a representative of the United Nations Population Fund described a comprehensive approach
to reducing maternal mortality as part of a panel discussion in 2009. “What does it take [to reduce
maternal mortality]? Three focus areas: first of all, a recognition that giving birth safely is a human rights
standard and principle which is inexpensive. Limited measures need to be taken to get there: access to
contraceptives, skilled personnel and prompt emergency obstetric care. Secondly, acknowledging the
challenges in addressing rights-holders, which require mobilizing communities, raising awareness as well
as tackling inequality and discrimination. Complications during childbirth are the leading cause of death
for women in Africa and for girls 15-19 in developing countries in general. This reflects entrenched
discrimination against women and failure to promote women's rights. Many women are unable to exercise
their rights because of their youth, poverty and ethnic background. The link between rights-holders and
duty-bearers is made through civil society. This needs a comprehensive approach that tackles also sexual
violence, early child marriage etc. And finally, we need culturally-sensitive access to health care. We
must bring international norms and standards to the lives of women and girls.” M. Muna, Combating
Maternal Mortality: Why Bring Human Rights Into the Picture, Panel Discussion (5 June, 2009),
available at http://righttomaternalhealth.org/resource/HRC-panel-2009.
76 Hawkins et al., supra note 74, p. 2.
77 The DFID Health Resource Centre, which provides technical assistance and information to the British
Government’s Department for International Development, notes that the causes of maternal mortality are
well known. The report the DFID issued on addressing maternal mortality lists the actual determinants of
maternal mortality as:
• Women’s status, starting with lack of education, which is linked to early marriage and childbearing;
inability to take decisions regarding health care; low valuation of girls and women, particularly in the
peak reproductive years, and poorer access to nutrition
• Family and community beliefs which prevent early identification of problems related to pregnancy, or
lack of awareness of pregnant women’s needs
• Women’s lack of access to health care services due to inaccessibility, cost, or perceived poor quality
• Poorly functioning health systems and a lack of skilled personnel, supplies, equipment, and adequate
referral systems
• A lack of a supportive and protective legal and policy environment, or where it exists poor enforcement
of its provisions
Hawkins et al., supra note 74, p. 6.
78 Id.
79 In response to the valuable article by B. J. Hill, which argues that advocates and scholars interested in
achieving greater protection for reproductive rights, specifically abortion, in the United States should look
to the negative right of health, I note that Professor Hill herself has acknowledged: “the negative right to

THE RIGHT TO MATERNAL HEALTH CARE 59
to reducing maternal mortality – “the greatest unsolved public health issue of
our time.” 80 Leaving the right to maternal health care as a right encompassed
under the right to health may allow states defining “health” in a certain way to
ignore the specific needs of pregnant women. For example, state-run family
planning programs with explicit goals of population control (such as in China,
India and Indonesia) have “long-standing records of neglect of women’s health
needs and coercion.” 81 As part of the right to maternal health that states must
protect, the right to maternal health care requires “positive measures to ensure
access to reproductive health care and services for all women.” 82 A woman’s
right to health during pregnancy is relevant to diverse value systems, but the
right to maternal health care should traverse diverse value systems, particularly
when a value system jeopardizes a woman’s right to health care. While cultural
practices should be taken into account in international human rights decisionmaking,
83 allowing cultural practices to shape the right to health can allow the
right to maternal health care to go unrecognized. Failing to recognize the right
to maternal health care is ignoring the most obvious human right – the right to
life. The reality is “that the right to life is violated daily by death in pregnancy
and childbirth, which could have been avoided if women enjoyed better health
and better access to reproductive health services.” 84 The right to maternal
health care is particularly susceptible to manipulation by individuals, societies
and governments. Advocates for the right to maternal health care must fight for
a right that is not only female-specific, but also traditionally and ideologically
a right that is held within the private sphere. 85 Because pregnancy and
79 health will not necessarily expand access to reproductive health care for women who lack it.” Hill, supra
note 14, at 531. As my focus is on combating maternal mortality by expanding access to maternal health
care, I frame the right to maternal health care more as a positive right. For further reading on the shift
from the framing of reproductive rights as positive rights to a negative human rights framework, see R. A.
Dempsey & B. M. Meier, Going Negative: How Reproductive Rights Discourse Has Been Altered from a
Positive to a Negative Rights Framework in Support of “Women’s Rights,” in Women’s Global Health
and Human Rights 83 (P. Murthy & C. L. Smith eds., 2010).
80 A. Foster-Rosales, Maternal Mortality: The Eye of the Storm, in Women’s Global Health and Human
Rights 279 (P. Murthy & C. L. Smith eds., 2010).
81 Id. at 331.
82 S. Maiga, Combating Maternal Mortality: Why Bring Human Rights Into the Picture, Panel Discussion (5
June, 2009), available at http://righttomaternalhealth.org/resource/HRC-panel-2009. Maiga argues that as
part of ensuring maternal health, states must also take into account “cultural intricacies and women’s
health and nutritional needs.” Here the reader is reminded that the focus of this paper is on the right to
maternal health care, and not the right to maternal health.
83 For an approach – “a methodology of respect” – for deciding when cultural differences are to be respected
and when not in international human rights law-making, see B. H. WESTON, The Universality of Human
Rights in a Multicultured World, The Future of International Human Rights 65 (B. H. Weston & S. P.
Marks, eds., 1999), reprinted (with changes from B. H. Weston) in Human Rights in the World
Community: Issues and Actions 39 (R. P. Claude & B. H. Weston eds., 2006).
84 Sadasivam, supra note 6, at 326. Or as the International Initiative on Maternal Mortality and Human
Rights (“IIMMHR”) notes: “Even though dying of an easily preventable cause is a human rights
violation--as much as extrajudicial executions, torture, and arbitrary detentions are--the connection
between maternal mortality and human rights has not been widely recognized. The time is ripe for an
effort that confronts this unacceptable situation.” International Initiative on Maternal Mortality and
Human Rights Brochure, supra note 63.
85 Sadasivam discusses the public/private distinction “central to western liberal theory,” a distinction that
“implies that the private sphere is beyond the reach of the state’s legal powers.” Sadasivam notes that is
very difficult to guarantee human rights in the private sphere. Sadasivam, supra note 6, pp. 325-326.

60 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
childbirth traditionally come out of a conjugal union, the right to maternal
health care is often placed within the family, an approach that ignores intrinsic
unequal power relations between the sexes within the family structure. 86
Patriarchal norms, the gender-blind (even gender-biased) nature of
international law and the public/private ideological construct all inform the
right to health, and therefore operate to make the realization of the right to
maternal health care vulnerable to being limited when the right to maternal
health care is placed within the right to health framework.
The right to maternal health care should be recognized as an
independent human right apart from the right to health, demanding of
enforceable state obligations on its own. For a value to move from being a
respected social value to being considered a human right is a tremendously
important transition, as understanding a right as a human right gives rise to
obligations on the part of governments to protect the international human
right. Philip Alston has warned that without an established procedure to
recognize when a value becomes a human right, the international system runs
the risk of being overloaded with human rights. 87 Alston argues that any
proposed human right should not only reflect a fundamentally important
social value, but should also be relevant to diverse value systems, and should
be eligible for recognition as an interpretation of UN Charter obligations, as a
reflection of customary law rules or as a declaratory of general principles of
law. 88 Further, Alston suggests that any proposed human right should be able
to achieve a very high degree of international consensus, be compatible with
the general practice of states and be specific enough to give rise to identifiable
rights and obligations. 89
Burns Weston has provided five postulates that assist in defining
human rights, writing that despite a lack of consensus on these postulates, they
are nonetheless accurate. 90 In considering whether a right is a human right,
Weston’s postulates can guide understanding and provide some sort of
procedure in recognizing if a right is indeed a human right. In sum, Weston
proposes that human rights: (1) are “understood to represent both individual
and group demands” for “cherished values or capabilities, the most
fundamental of which is respect”; (2) are commonly assumed to refer to
“fundamental” as distinct from “nonessential” claims or goods; (3) “refer to a
wide continuum of claims ranging from the most justiciable to the most
aspirational”; (4) “are qualified by the limitation that the rights of individuals
86 Id. p. 329.
87 P. Alston, Conjuring up New Human Rights: A Proposal for Quality Control, 78 AM. J. INT’L L. pp. 607-
608 (1984), cited in Feitshans, supra note 24, pp. 101-102.
88 Id.
89 Id.
90 See B. H. Weston, Human Rights: Concept and Content, Encyclopaedia Britannica, 15th rev. ed. (2005),
available at http://www.britannica.com/eb/article?tocID=219350, reprinted (with changes from B. H.
Weston) in Human Rights in the World Community: Issues and Actions 17 (R. P. Claude & B. H. Weston
eds., 2006).

THE RIGHT TO MATERNAL HEALTH CARE 61
or groups in particular instances are restricted as much as is necessary to
secure the comparable rights of others and the aggregate common interest”;
and (5) “are understood to be quintessentially general or universal in
character.” 91
This independent right to maternal health care meets the standards
set by both Alston and Weston to transition from being a value to being a
fundamental human right with the same international legal status as other
more widely recognized human rights. The right to maternal health care
reflects both individual and group demands for a fundamentally important
social value, as a claim for the fundamental human right of life. Just as
pregnancy is universal, the causes of maternal and infant mortality are also
universal, and thus maternal health care should be universal. “Given that
maternal mortality is the medical manifestation of deep-rooted socioeconomic,
gender and cultural inequities, a human rights framework can be
applied.” 92 Civil, political, economic, social and cultural rights are all
wrapped up in a woman’s right to maternal health care. 93 Finally, the right to
maternal health care is eligible for recognition, as it is a human right at least
already articulated in international human rights law and there is a growing
body of customary international law reflecting the consensus that the right to
maternal health care is a human right. While the right to maternal health care
does fall within the right to health framework, and valuable lessons can be
learned from advocacy for the right to health, the right to maternal health care
is a human right that is and must be individually recognized in international
law.
The International Law Realm
The right to maternal health care has been articulated in international human
rights law, but further development is needed before state and non-state actors
alike will recognize the right to maternal health care as a human right. To quote
91 Id. pp. 20-21.
92 Foster-Rosales, supra note 87, at 282. Foster-Rosales also lends support to my statement that the causes
of maternal and infant mortality are universal in writing: “While most pregnancies and deliveries occur
without serious problems, it is a biological truth that 10-15% of pregnant women will develop a
complication. This complication, if not recognized in a timely fashion and managed correctly, may result
in the death of the mother.” Id. at 281.
93 For example, the IIMMHR states: “Failure to provide available, accessible, acceptable and quality health
care, including emergency obstetric care, for women during pregnancy and childbirth is a violation of
women's rights to life, health, equality and non-discrimination. Respect and protection of women's rights
to information and decision-making in reproductive health, to freedom from gender-based discrimination
and violence, and to participation in planning and implementing health policies are critical for making
pregnancy and delivery safer for women.” IIMMHR, About Maternal Mortality, http://
righttomaternalhealth.org/about-maternal-mortality (last visited Feb. 22, 2010). Further, IIMMHR lists
separate human rights that can be applied to maternal mortality: “Right to Life; Right to the highest
attainable standard of health; Right to equality; Right to freedom from discrimination; Right to decide the
number and spacing of children; Right to be free from cruel, inhuman or degrading treatment; Right to
education; Right to information; and Right to enjoy the benefits of scientific progress.” International
Initiative on Maternal Mortality and Human Rights Brochure, supra note 63.

62 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
I. L. Feitshans, former legal advisor to the Committee of Experts on
Reproductive Health of the World Health Organization Collaborative Centre
and Russian Academy of Medical Sciences and a Delegate for the Global
Alliance of Women's Health to the United Nations Fourth World Conference
on Women:
Without question, there is a vast and vibrant corpus of international
human rights law protecting reproductive health rights. A legal
justification does exist to support national, employer-based, or
international collaborative efforts that research, treat, and cure
reproductive health problems. Do we need more law? Are there
gaps in existing rules or the international consensus of principles
called “norms” that compel us to study, and codify even further, the
rules protecting health? 94
The answer to the question posed by Feitshans, at least with regard to
the right to maternal health care, is yes. Not only are the rules protecting
maternal health care in need of strengthening, but also enforcement
mechanisms and strategies to ensure the right to maternal health care must be
developed. While international consensus that the right to maternal health care
is a human right has developed significantly during the past thirty years, gaps
in existing rules and in international community policy do exist. For example,
of the six international instruments discussed in Part 2, on the CEDAW are
binding on states. The other five instruments establishing the right to maternal
health care in international community policy do so through customary
international law and in the “extra-legal” realms, but do not firmly set rules
that states are obligated to provide maternal health care for pregnant women.
In other words, further development is needed. Recognizing the right to
maternal health care as a human right recognizes that women have not only
the authority and the ability to make reproductive decisions, but the right to do
so, as well as the right to be provided with services and adequate information
about those services. 95 To firmly imbed this woman-centered human rights
perspective in approaches to maternal mortality, a stronger international
human rights law regime for the right to maternal health care must be
developed. The right to maternal health care is only one part of reducing
maternal mortality, but ensuring maternal health care for all women
recognizes, as Soyata Maiga, Special Rapporteur on the Rights of Women in
Africa has stated, that: “The right to survive pregnancy is a fundamental
human right.” 96
94 Feitshans, supra note 24, p. 124.
95 See supra note 6.
96 Maiga, supra note 89.

THE RIGHT TO MATERNAL HEALTH CARE 63
The DFID Health Resource Centre has noted that the “hallmark of
the rights-based approach” is a dual approach: “strengthening the capacity of
the rights holder to understand that health care is a right and then helping them
to design a strategy to assert and claim this right while simultaneously
working with the duty bearers to improve their capacity to fulfill their
obligations.” 97 Building a stronger international human rights law regime for
the right to maternal health care must utilize this dual approach. First, as the
right to maternal health care is a human right, taking on a normative value,
governments can and should be held accountable for not meeting their
obligation to provide maternal health care, as states have a duty to ensure the
positive right. Governments can assist each other in improving capacity to
fulfill their obligations, and I argue that the United States should play a role in
leading such capacity building. The United States can do so by ratifying
treaties that recognize the human right to maternal health care and by
contributing to international community policy and customary international
law to further develop the human rights law regime for the right to maternal
health care. Second, non-governmental advocacy groups and individuals can
utilize strategies within and beyond (in Weston’s “extra-legal realms”) the
international legal regime to assert and claim the right to maternal health care.
Policy Alternatives for States
As has already been discussed, for a social value to transition to being a human
right, recognized in international law, is tremendously important, as
recognition in an international instrument places legally binding obligations on
states to take positive steps to guarantee that right to their citizens. In a report
on using human rights to advance maternal health, the World Health
Organization states:
International human rights treaties become legally binding when
governments ratify them. This means that governments must then
ensure that their national laws, policies and practices do not conflict,
and are consistent, with their obligations under international law and
that they respect, protect and fulfill the right to health and other
human rights. When a government ratifies a treaty, it agrees to
submit reports on a periodic basis on the compliance of domestic
standards and practices with the human rights enshrined in the
particular treaties. These reports are reviewed by committees that
monitor the application of human rights treaties. The committee
97 Hawkins et al., supra note 74, p. 13.

64 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
then issues concluding observations and recommendations, which
should be implemented by the government in question. 98
The Committee on the Elimination of Discrimination Against
Women (“CEDAW Committee”) monitors the CEDAW. 99 For the right to
maternal health care, this is extremely significant, as Article 12 of the
CEDAW calls upon states to “take all appropriate measures to eliminate
discrimination against women in the field of health care in order to ensure
access to health care services, including those related to family planning,
confinement and the post-natal period, granting free services where necessary,
as well as adequate nutrition during pregnancy and lactation.” 100 Article 18 of
the CEDAW requires states parties to submit to the Secretary-General of the
UN for consideration by the CEDAW Committee a report on the legislative,
judicial, administrative or other measures which they have adopted to give
effect to the provisions in the CEDAW; these reports must be submitted every
four years and further whenever the CEDAW Committee so requests. 101
Under the CEDAW, states parties have “different kinds of general
legal obligations” to implement to right to maternal health care:
• The obligation to respect rights, which requires states to refrain
from interfering with the enjoyment of rights;
• The obligation to protect rights, which requires states actively to
prevent violations of human rights by third parties; and
• The obligation to fulfill rights, which requires states to take
appropriate governmental measures toward the full realization of
rights. 102
These legal obligations, the enforcement of which is monitored by
the CEDAW Committee, create legal accountability for states. Such
accountability for protecting the right to maternal health care also comes out
of the CESCR. 103 The Economic, Social and Cultural Rights Committee,
which monitors the CESCR, has stated that providing essential obstetric
services “constitutes part of a state’s core obligations, which while not
defining a per se violation is a factor in considering whether the government
has demonstrated that the measures it has adopted to provide such services
meet a reasonableness criterion.” 104 Legal accountability can be
98 World Health Organization, Using Human Rights for Maternal and Neonatal Health: A tool for
strengthening laws, policies and standards of care, A Report of Indonesia Field Test Analysis 5 (2006)
[hereinafter Indonesia Field Test Analysis]. See also Hawkins et al., supra note 74, at 43.
99 Id. at 6.
100 CEDAW, supra note 21, at Article 12, cited in Indonesia Field Test Analysis, supra note 105, p. 18.
101 CEDAW, supra note 21, at Article 18.
102 Hawkins et al., supra note 74, p. 43.
103 CESCR, supra note 19.
104 Yamin, supra note 80, at 1214, citing ECOSOC General Comment, supra note 23, p. 44.

THE RIGHT TO MATERNAL HEALTH CARE 65
supplemented with political accountability, where states act to assist each
other in meeting their obligations. As S. P. Marks has written, accountability
“need not take the form of pointing an accusing finger.” 105 Rather, for states
to act to ensure accountability among themselves, Marks continues:
In most situations, the appropriate measures for securing
government accountability consist of persuasion, technical
assistance, dialogue, and emulation. While accountability usually
refers to sanctioning an agent of the state for violating rules, the
nature of the state's obligations relating to the right to health justifies
cooperative means of achieving change through weaker forms of
accountability. The important point is to bring about change, and the
choice between confrontational and cooperative means depends on
circumstances. 106
Governments wishing to advocate for the right to maternal health
care globally should work closely with one another to hold each other
accountable under the CESCR and the CEDAW for the protection of the right
to maternal health care.
The ICPD Programme of Action and the Beijing Platform for Action,
while both expressing international community policy and adding “content
and meaning” to the articulation of the right to maternal health care in
international instruments, are themselves “non-binding consensual policy
documents.” 107 They do not result in legal obligations for states. Nonetheless,
states can hold each other accountable for the rights articulated in the ICPD
Programme of Action and Beijing Platform for Action, using the “weaker
forms of accountability” suggested by Marks. 108 States can work to develop
the right to maternal health care as a human right recognized in customary
international law by doing so in their own practice. This includes through
domestic legislation, and as evidenced by the work a state does in and through
international organizations. 109
The IIMMHAR has issued a Fact Sheet to the UN Human Rights
Council on the Maternal Mortality Resolution, which includes a list of
valuable ways in which state governments can take “focused, effective action”
to enhance accountability and advance legal standards on the right to maternal
105 S. P. Marks, The New Partnership of Health and Human Rights, 2 HUM. RTS. DIALOGUE 21 (2001),
available at http://www.cceia.org/resources/publications/dialogue/2_06/articles/650.html.
106 Id.
107 Hawkins et al., supra note 74, at 43.
108 See Marks, supra note 112.
109 For an in-depth discussion on the development of customary international law, see S. Sahl, Researching
Customary International Law, State Practice and the Pronouncements of States regarding International
Law, Globalex (2007), available at http://www.nyulawglobal.org/globalex/Customary_
International_Law.htm#_State_Practice.

66 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
health care. 110
• Develop and implement maternal mortality action plans that adopt
a human rights-centered approach, supported and facilitated by
strong institutional mechanisms and financing.
• Develop effective monitoring and accountability mechanisms at
the facility, community, district, and national levels.
• Ensure that all women, particularly marginalized women, have
access to comprehensive sexual and reproductive health
information and services, without discrimination of any kind.
• Establish programs that meet the special sexual and reproductive
health needs of adolescents.
• Guarantee that comprehensive primary health services, including
sexual and reproductive health services, are available, accessible,
acceptable, and of good quality.
• Collect the data needed to guide implementation and evaluation of
national action plans and global strategies for addressing maternal
mortality.
• Develop indicators and benchmarks for reducing maternal
mortality.
• Focus on proven, effective interventions, including family
planning, skilled birth attendants, emergency obstetric care,
referral networks, and safe abortion. 111
The DFID Health Resource Centre has noted that to truly reduce
maternal mortality, more systemic change must occur, and such change is
only possible if health policy is dealt with at national levels. 112 The role of
states is critical to the creation of an international community policy
environment that fosters a rights-based approach to maternal health care.
Taking the international community policy expressed by non-binding
international instruments such as the ICPD Programme of Action and the
Beijing Platform for Action and implementing that policy at a national level
will help to develop customary international law recognizing the right to
maternal health care as a human right.
The Millennium Development Goals, which call for universal access
to reproductive health to reduce maternal mortality, are not in and of
themselves legally binding on states. Philip Alston has examined the legal
status of the Millennium Development Goals and “particularly the claim that
they reflect customary international law and are thus binding on all
110 IMMHR, Fact sheet: UN Human Rights Council Resolution on Maternal Mortality (December. 2009).
111 Id. p. 2.
112 Hawkins et al., supra note 74, p. 3.

THE RIGHT TO MATERNAL HEALTH CARE 67
governments.” 113 Alston concludes that while at least some of the Millennium
Development Goals have met this status and are now recognized in customary
international law, it remains difficult to say that all of the Millennium
Development Goals have satisfied the criteria required for a norm to become
part of customary law. 114 With regard to Goal 5, which calls for the reduction
of maternal mortality through providing universal access to reproductive
health, Alston applies a test to determine if a right articulated in a Millennium
Development Goal has become a part of customary international law:
… no right should be excluded which is (i) indispensable to a
meaningful notion of human dignity (upon which human rights are
based) and (ii) the satisfaction of which is demonstrably within the
reach of the government in question assuming reasonable support
from the international community. 115
Alston concludes that Goal 5 meets this test and that it can plausibly
be claimed that Goal 5 (and several of the other Millennium Development
Goals that Alston examines) reflects norms of customary international law.
Finally, the Maternal Mortality Resolution is generally considered to be nonbinding,
but aids in building customary international law and informing
international community policy. Further, as noted by Sandeep Prasad of
Action Canada for Population and Development (a human rights advocacy
organization):
… the consensus nature of this resolution signals agreement on the
part of governments with the various acknowledgments, requests
and calls that the Council makes in it. Moreover, the resolution
reinforces the legally binding obligations that states have already
assumed upon themselves as interpreted by treaty-monitoring
bodies and long-standing commitments that governments have
made. 116
Over time, the Maternal Mortality Resolution could be given weight
as a source of international law, but as it has been in existence for less than a
year, at present it seems be only evidence of already existing international
113 P. Alston, A Human Rights Perspective on the Millennium Development Goals, Paper prepared as a
contribution to the work of the Millennium Project Task Force on Poverty and Economic Development, 3,
available at http://hurilink.org/tools/HRsPerspectives_on_the_MDGs--Alston.pdf (last visited 6 March,
2010).
114 Id. p. 3, p. 20.
115 Id. p. 21.
116 J. Jacobson, UN Human Rights Council Resolution: Maternal Death, Illness Are Human Rights
Violations, RH Reality Check (18 June, 2009), http://www.rhrealitycheck.org/blog/2009/06/18/unhuman-rights-council-recognizes-maternal-death-and-illness-human-rights-violations.

68 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
law, and not an obligation-creating instrument on its own. 117 Nonetheless, the
Maternal Mortality Resolution has a valuable role to play in influencing future
trends regarding the development of the right to maternal health care in
international law, and states (as well as individuals) wishing to advocate for the
right to maternal health care can utilize the landmark Maternal Mortality
Resolution to lend critical support to the cause.
Summary: Existing Accountability and Policy Alternatives
for States (Table 2)
CEDAW a
Instrument
ICPD Programme of
Action c
Existing State
Accountability
States parties are under
legal obligation to provide
or further that others
provide family planning
and pregnancy related
services, and are under an
immediate obligation to
ensure that women have
access to pregnancy related
services, if necessary free
of charge. b
State accountability only to
the extent that the ICPD
Programme of Action is a
reflection of customary
international law.
Policy Alternatives for
States
Ratify the CEDAW and the
Optional Protocol.
Support enforcement of
CEDAW commitments by
the CEDAW Committee.
Hold other states politically
accountable through using:
persuasion, technical
assistance, dialogue, and
emulation.
Hold other states politically
accountable through using:
persuasion, technical
assistance, dialogue, and
emulation.
Develop customary
international law to
recognize the right to
maternal health care
through: practice,
legislation,
pronouncements, and
working with international
organizations.
117 For a discussion of General Assembly Resolutions as authoritative sources of international law, see G. J.
Kerwin, The Role of United Nations General Assembly Resolutions in Determining Principles of
International Law in United States Courts, 4 DUKE L. J. 876 (1983) and M. D. Öberg, The Legal Effects
of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ, 16(5)
EUROPEAN J. INT’L L. 879 (2005).

THE RIGHT TO MATERNAL HEALTH CARE 69
Beijing Platform for
Action d
Millennium Development
Goals e
World Summit Outcome h
State accountability only to
the extent that the Beijing
Platform for Action is a
reflection of customary
international law.
Goal 5, which asserts that
the right to access
reproductive health should
be universal, is a reflection
of norms of customary
international law.
Reaffirms accountability
under the Millennium
Development Goals.
Hold other states politically
accountable through using:
persuasion, technical
assistance, dialogue, and
emulation.
Develop customary
international law to
recognize the right to
maternal health care
through: practice,
legislation,
pronouncements, and
working with international
organizations.
Call upon treaty bodies to
take note of the
Millennium Development
Goals (“MDG”) to take full
account of the MDG
commitments in their
work. f
Submit information to the
MDG Monitor to
demonstrate support for
and a commitment to the
MDGs. g
Hold other states politically
accountable through using:
persuasion, technical
assistance, dialogue, and
emulation.
Develop customary
international law to
recognize the right to
maternal health care
through: practice,
legislation,
pronouncements, and
working with international
organizations.
(see above)

70 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Maternal Mortality
Resolution i
State accountability to the
extent that the Maternal
Mortality Resolution is a
reflection of customary
international law. State
accountability to the extent
that the Maternal Mortality
Resolution is a
reinforcement of already
existing legal obligations
under the CEDAW and
other human rights treaties.
Hold other states politically
accountable through using:
persuasion, technical
assistance, dialogue, and
emulation.
Develop customary
international law to
recognize the right to
maternal health care
through: practice,
legislation,
pronouncements, and
working with international
organizations.
a. CEDAW, supra note 21, at Article. 12(2).
b. Id. See also Toebes, supra note 17, at 335.
c. ICPD Programme of Action, supra note 27.
d. Beijing Platform for Action, supra note 29.
e. Millennium Development Goals, supra note 37.
f. See Alston, supra note 120, at 57.
g. See MDG MONITOR, http://www.mdgmonitor.org/index.cfm (last visited 6 March, 2010).
h. World Summit Outcome, supra note 38, at 57(g).
i. Maternal Mortality Resolution, supra note 39.
Clarification of Policy Alternatives for States: Recommendations
for the United States
The United States is not immune to the tragic problem of maternal mortality.
In spite of being among the world’s most technologically advanced and
wealthy nations, the United States currently falls behind more than 40 other
countries when it comes to rates of maternal death. 118 “More women die in the
U.S. after giving birth than die in countries like Poland, Croatia, Italy and
Canada, to name a few.” This year, the Joint Commission, an independent nonprofit
organization that accredits and certifies health organizations and
programs in the U.S., issued an Alert that warns: “current trends and evidence
suggest that maternal mortality rates may be increasing in the U.S.” 119 Citing
a Center for Disease Control and Prevention study, the Joint Commission notes
that in the U.S. there is a four-fold increased risk of pregnancy-related death
for black women, and an increased risk for women who did not receive prenatal
care. For marginalized women in the United States, gaining access to maternal
health care may be as difficult as in some of the world’s least developed
countries. The United States should take on a leadership role in recognizing the
right to maternal health care as a human right, not only to assist and protect
118 K. Snow & S. Amos, Maternal Mortality Rates Rising in California, ABC World News (Mar. 4, 2010),
available at http://abcnews.go.com/WN/changing-life-preventing-maternal-mortality/story?id=9914009.
119 The Joint Commission, Preventing Maternal Death, 44 Sentinel Event Alert (26 January, 2010), available
at http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_44.htm.

THE RIGHT TO MATERNAL HEALTH CARE 71
pregnant women in the United States, but also to tackle the atrocious problems
of maternal and infant mortality globally.
To elaborate on the policy alternatives for states outlined in Table 2
above, this paper offers recommendations for the United States to advocate
for the right to maternal health care globally. The United States should ratify
the CEDAW and the CEDAW Optional Protocol. Amnesty International
notes:
The United States is among a small minority of countries that have
not yet ratified CEDAW, including Iran and Sudan. The United
States has the dubious distinction of being the only country in the
Western Hemisphere and the only industrialized democracy that has
not ratified this treaty. The Senate Foreign Relations Committee
voted in July 2002 to recommend ratification of CEDAW, but the
Treaty has never come before the full Senate for a vote. 120
Currently, the CEDAW is only eight countries away from universal
ratification (with 186 states parties to the CEDAW as of March 2010). 121
Without ratification, the United States is not accountable under the provisions
of the CEDAW, including Article 12(2), which ensures maternal health care.
To help develop a stronger international law regime for the right to maternal
health care, the United States should ratify the CEDAW and the Optional
Protocol, and support enforcement of CEDAW commitments by the CEDAW
Committee to hold other nations legally and politically accountable for the
right to maternal health care.
The United States needs to hold itself legally accountable under the
CEDAW, and therefore ideally ratification should occur without reservations.
In 2002, the last time the CEDAW came before the Senate Foreign Relations
Committee, ratification was recommended subject to reservations,
understandings and declarations. 122 The understandings included: “The
United States understands that Article 12 permits states parties to determine
which health care services are appropriate in connection with family planning,
pregnancy, confinement and the post-natal period, as well as when the
provision of free services is necessary, and does not mandate the provision of
particular services on a cost-free basis” and that “nothing in this Convention
shall be construed to reflect or create any right to abortion and in no case
120 Amnesty International, Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), http://www.amnestyusa.org/violence-against-women/ratify-the-treaty-for-the-rights-ofwomen-cedaw/page.do?id=1108216
(last visited 6 March, 2010).
121 N. Gabr, Chair for Committee on the Elimination of Discrimination Against Women, Statement to
Commission on the Status of Women Fifty-Fourth Session (1-12 March, 2010), available at http://
www.un.org/womenwatch/daw/beijing15/statements/CEDAW.pdf.
122 Library of Congress, Legislative Actions: The Convention on the Elimination of All Forms of
Discrimination Against Women, Treaty No. 96-53 (2002), available at http://www.thomas.gov/home/
treaties/treaties.html.

72 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
should abortion be promoted as a method of family planning.” 123 These
understandings are unnecessary to state with ratification, at least because the
“CEDAW does not address the matter of abortion and, according to the U.S.
State Department, is ‘abortion neutral.’” 124 Making these understandings part
of ratification would also serve to limit the accountability of the United States.
Such understandings go against using a rights-based approach to maternal
health care.
A rights-based approach asserts that maternal health care is a human
right and that women, not the state, have the right to determine which health
care services are appropriate to their family planning, pregnancy, confinement
and the post-natal period. To protect this positive human right, the state’s role
is to ensure, as much as possible, maternal health care services so that women
have the ability to make such determinations. The CEDAW specifically states
that these services should be free where necessary because so many women in
the world do not receive maternal health care because they cannot afford it.
This includes women in the United States, and the U.S. government should
not try to limit its responsibility when it comes to providing cost-free maternal
health care to pregnant women in need.
Building from the ICPD Programme of Action and the Beijing
Platform for Action to the most recent Maternal Mortality Resolution, the
United States should continue to work to build customary international law
that recognizes maternal health care as a human right. Pronouncements of
states are “excellent resources for the evidence of custom,” 125 and the United
States continues to issue documents in the forms of diplomatic papers,
memorandums, briefs, position papers and remarks, many of which assert a
rights-based approach to maternal health care. For example, in a very recent
statement by Melanne Verveer, U.S. Ambassador-at-Large for Global
Women’s Issues, at Beijing +15, Ms. Verveer provided detailed evidence that
the U.S. recognizes the right to maternal health care, at least in practice. While
the quote is long, it is valuable to cite in full.
The persistently high global rates of maternal and child mortality do
not stem from uncertainty about how to save the lives of women and
children. We know that providing proven, evidence-based
interventions – such as skilled birth attendants, access to emergency
obstetric care, pre- and post-natal care, nutrition, and access to
family planning – will improve maternal and child health, as will
strengthening health systems to better respond to the needs of
women and girls.
123 Id.
124 Amnesty International, supra note 136. For a brief discussion of abortion and the right to maternal health
care, see supra Clarification of the Right to Maternal Health Care.
125 Sahl, supra note 116.

THE RIGHT TO MATERNAL HEALTH CARE 73
To improve the health of women and girls, we also need to address
the myriad economic, cultural, social, and legal barriers that impede
their access to needed health care. The unacceptably high rate of
maternal mortality is directly linked to persistent gender
inequalities, including gender-based violence, harmful traditional
practices such as early and forced marriage, lack of education, lack
of economic opportunity, and unequal access to adequate health
services and facilities.
The United States is committed to reducing maternal and child
mortality through its Global Health Initiative, which was announced
by President Obama last year and commits to a strong focus on
maternal and child health.
The U.S. has also demonstrated its commitment to the health of
women and girls by sponsoring a resolution on “Reducing Maternal
Mortality and Morbidity through the Empowerment of Women,”
along with a cross-regional group of member states. We welcome
delegations’ support for this initiative. 126
The United States, both through pronouncements and through its
work in international organizations, already is helping to develop customary
international law that recognizes maternal health care as a human right. The
U.S. can go further though, and arguably much of the work that the U.S. needs
to do should take place within its borders. By passing legislation that uses a
rights-based approach to ensure maternal health care for women in the United
States, the U.S. would go far in serving as a leader for other nations to emulate
in advocating for the right to maternal health care globally.
Policy Alternatives for Individuals & Advocacy Groups
Individuals also play a critical role in the development of the international law
regime protecting the right to maternal health care. Individuals can hold states
accountable for their human rights obligations through bringing action against
governments that fail to meet their legal obligations. These actions take two
main forms: litigation in domestic courts and complaints brought before
international committees responsible for the enforcement of treaties, such as
the CEDAW Committee. When the CEDAW was first ratified, advocates for
the right to maternal health care complained that the CEDAW was “hobbled by
126 M. Verveer, Statement by Ambassador Melanne Verveer, U.S. Ambassador-at-Large for Global Women's
Issues, at the Fifty-fourth session of the Commission on the Status of Women, at United Nations
Headquarters (3 March, 2010), available at http://usun.state.gov/briefing/statements/2010/137772.htm.

74 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
the lack of an Optional Protocol, which would authorize it to receive
complaints from individuals, groups and organizations alleging violations.” 127
Today this has changed, and with the ratification of the CEDAW Optional
Protocol, individuals are now able to bring complaints against governments
that are parties to the CEDAW Optional Protocol. 128 With 99 states parties to
the CEDAW Optional Protocol as of today, this is an extremely valuable
mechanism to enforce the right to maternal health care. 129 The CEDAW
Optional Protocol provides a “communications procedure” through which
individuals, groups and organizations can file complaints in writing about
violations of rights. 130 Further, the CEDAW Optional Protocol allows the
CEDAW Committee to conduct inquiries into grave or systematic abuses by
states parties to the Optional Protocol with an “inquiry procedure.” 131
In 2007, the Center for Reproductive Rights, along with the Brazilian
group Advocaci, filed a complaint before the CEDAW Committee on behalf
of Alyne da Silva Pimentel against the government of Brazil. 132 “Alyne, a 28-
year-old Afro-Brazilian woman, died of complications resulting from
pregnancy after her local health center misdiagnosed her symptoms and
delayed providing her with emergency care;” Alyne da Silva Pimentel v Brazil
is the first maternal mortality case to be brought before the CEDAW
Committee. 133 The Center for Reproductive Rights alleged that “by failing to
implement effective policies and programs that address the high rates of
maternal mortality, Brazil is violating its obligations under national and
international human rights law that guarantee women's rights to life, health
and equality,” and cited both Brazil’s Constitution and international human
rights treaties including CEDAW as creating legal obligations for Brazil to
protect the right to maternal health care. 134 The CEDAW Committee gave the
Brazilian government until August 2008 to render a decision regarding the
case, and the CEDAW Committee planned to analyze the case following the
presentation of facts and official arguments. 135 As of the writing of this paper,
127 Sadasivam, supra note 6, p. 334.
128 The General Assembly adopted the Optional Protocol to the CEDAW on October 6, 1999 in resolution
54/4 (A/RES/54/4). See CEDAW Optional Protocol, http://www.un.org/womenwatch/daw/cedaw/
protocol/sigop.htm (last visited 6 March, 2010).
129 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women,
G.A. Res. 54/4, 2131 Treaty Series 83, Status available at http://treaties.un.org/ [hereinafter Optional
Protocol Status].
130 CEDAW Optional Protocol, supra note 144.
131 Id.
132 Center for Reproductive Rights, Alyne de Silva Pimentel v Brazil (10 December, 2008), http://
reproductiverights.org/en/case/alyne-da-silva-pimentel-v-brazil-committee-on-the-elimination-ofdiscrimination-against-women.
133 Id.
134 For an English translation of the full text of the Center for Reproductive Rights petition in the Alyne de
Silva Pimentel case, see Latin American and Caribbean Women’s Health Network, Case of maternal
morbidity in Brazil goes before the CEDAW committee, The Free Library by Farlex (2008), http://
www.thefreelibrary.com/Case+of+maternal+morbidity+in+Brazil+goes+before+the+CEDAW+
committee.-a0198415431.
135 Id.

THE RIGHT TO MATERNAL HEALTH CARE 75
no decision has been rendered by the CEDAW Committee on the case, but the
Center for Reproductive Rights has requested “that the Brazilian Government
compensate Alyne’s family, including her nine year-old daughter, prioritize
the reduction of maternal mortality, including training providers and
establishing and enforcing protocols, and improve care in vulnerable
communities.” 136 If the case is successful, it “will lead to recognition of
government accountability for preventing maternal deaths and state
obligations to promote women’s health.” 137
Individuals, or organizations advocating on behalf of individuals, can
also bring litigation on domestic courts to ensure a government’s legal
obligation to provide maternal health care. The Center for Reproductive
Rights has utilized this approach in India, supporting several public interest
lawsuits seeking better implementation of India’s National Rural Health
Mission, which aims to reduce maternal mortality, improve service delivery
and to increase equity and access to maternal health care. 138 In April 2009, the
Center for Reproductive Rights filed a memorandum of support for Kalyani
Meena in Kalyani Meena v Union of India & Others (2008), a case developed
in collaboration with the Human Rights Law Network of India to “address the
overwhelming number of preventable deaths of women who die either in
Pregnancy or childbirth in the north Indian state.” 139 The Kalyani Meena case
is before the Jharkhand High Court in India. 140 In May 2009, the Center for
Reproductive Rights prepared a “friend-of-the-court” brief in support of the
Centre for Health and Resource Management v The State of Bihar & Others
(2008), a maternal mortality case highlighting the impact of India’s failed
national and local public health policies and the lack of access to maternal
health care in Bihar. 141 These are only two cases in a comprehensive strategy
being employed by Indian NGOs and international advocacy groups like the
Center for Reproductive Rights to promote the use of litigation in India to
protect women’s reproductive rights, including the right to maternal health
care.
136 L. Cabal & J. M. Todd-Gher, Reframing the Right to Health: Legal Advocacy to Advance Women’s
Reproductive Rights, in REALIZING THE RIGHT TO HEALTH 120, 132 (A. Clapham & M. Robinson eds.,
2009).
137 Id.
138 S. Majumdar, Lawsuits Used to Shrink India’s Maternal Deaths, REPRODUCTIVE HEALTH (24 September,
2009), available at http://www.womensenews.org/story/reproductive-health/090924/lawsuits-usedshrink-indias-maternal-deaths.
139 Center for Reproductive Rights, Kalyani Meena v Union of India & Others (2 September, 2009),
available at http://reproductiverights.org/en/case/kalyani-meena-v-union-of-india-ors.
140 Id.
141 Center for Reproductive Rights, Centre for Health and Resource Management v The State of Bihar &
Others (14 August, 2009), available at http://reproductiverights.org/en/case/centre-for-health-andresource-management-v-the-state-of-bihar-others.

76 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
The “Extra-Legal” Realm
Such innovative and far-reaching strategies are critical to the development of
the international human rights regime recognizing the right to maternal health
care. “The vision of a rights-based approach to reducing maternal mortality has
been around for 15 years and more; what is needed are diverse, wide-scale
actions to put it into practice.” 142 International advocacy groups are vital in
developing such approaches to protecting the right to maternal health care.
Grassroots and other initiatives that focus on maternal mortality as a human
rights issue raise awareness, promote education, and encourage women to
advocate for their right to maternal health care. As Weston emphasized in his
article on child labor, 143 these alternative strategies are important, as there are
“significant limitations to relying upon court-centric strategies.” 144 Non-state
actors not only can work to hold individual governments accountable using
court-centric strategies, but also can go further in advocating for resources
from foreign sources to finance maternal health care and can forge alliances
with international social movements. 145 Public interest, resulting in public
action with respect to the right to maternal health care fosters the recognition
of the right to maternal health care in international community policy.
Individuals and advocacy groups can raise awareness through a wide variety of
means; one successful tool for human rights advocacy has been the individual
narrative. 146 Video is a powerful way to reach diverse, widespread audiences,
and human rights organizations have utilized video to tell personal narratives
and highlight the human rights tragedy of maternal mortality. 147 Individuals
and Advocacy Groups can work to organize and encourage public and state
action and so build from existing international human rights law that already
establishes maternal health care as a positive human right to act to prevent
maternal mortality globally.
CONCLUSION
On average, a woman somewhere in the world dies in childbirth every
minute. 148 In the time that it has taken to read this paper, over 40 women have
died, and most due to preventable circumstances. Maternal mortality in today’s
142 R. Okello & T. Gyuse, Maternal Mortality, A Human Rights Catastrophe, GLOBAL POLICY FORUM (30
June, 2009), available at http://www.globalpolicy.org/component/content/article/211-development/
47913-maternal-mortality-a-human-rights-catastrophe.html.
143 Weston, supra note 75.
144 Yamin, supra note 80, at 1220.
145 Id. pp. 1228-1235 pp. 1239-1242.
146 Id. at 1204.
147 See, “e.g.”, J. Rincon, Videos on how maternal mortality affects communities, Conversations for a Better
World (28 October, 2009), available at http://www.conversationsforabetterworld.com/2009/10/videoson-how-maternal-mortality-affects-communities/.
148 Okello & Gyuse, supra note 158.

THE RIGHT TO MATERNAL HEALTH CARE 77
world is a human rights catastrophe. Recognizing the right to maternal health
care as a human right is a way to prevent maternal mortality globally. The right
to maternal health care already exists in international law. This paper has
attempted to elucidate ways in which both states and individuals wishing to
advocate for maternal health care could use existing international human rights
law to further develop the legal regime for the right to maternal health care, and
use a human rights-based approach to eliminate preventable maternal
mortality. I have focused on the right to maternal health care, separating the
right to maternal health care from the right to health and from the right to
maternal health generally. While realizing the right to maternal health care will
advance the right to maternal health, my narrower focus has been on the right
to health care during pregnancy and childbirth. Because health care during
pregnancy and childbirth is known to prevent maternal mortality, I have
attempted to determine policy alternatives to advocate for improved access to
health care services during pregnancy and childbirth by using international
human rights law. I used the United States as an example to demonstrate that
states, particularly wealthy and powerful states like the U.S., have the ability
to affect change beyond their borders. Recognizing that the right to maternal
health care is a human right recognizes that women have the right to determine
which health care services are appropriate to their family planning, pregnancy,
confinement and the post-natal period, and asserts that states have an
affirmative duty to protect this positive human right by providing women with
maternal health care services. States and individuals can and should work
together to develop international human rights law to prevent maternal
mortality.
Recognizing the right to maternal health care as a human right places
an affirmative duty on states to provide maternal health care to pregnant
women. Countries without the internal capacity to provide maternal health
care may argue against such an affirmative duty, especially if a country
doesn’t have the ability to meet such a duty. Nonetheless, such aspirational
duties are frequently codified in international law in the human rights context.
The Millennium Development Goals, “which range from halving extreme
poverty to halting the spread of HIV/AIDS and providing universal primary
education, all by the target date of 2015,” 149 are all aspirational goals that
place duties on states. The codification of the Millennium Development Goals
provides a “blueprint” agreement for all of the world’s countries and the
world’s leading developmental institutions to work to meet the needs of the
world’s poorest. 150 For states that aren’t able to meet the Millennium
Development Goals on their own, the international community feels
149 United Nations, Millennium Development Goals: Background, http://www.un.org/millenniumgoals/
bkgd.shtml (last visited 17 April, 2010).
150 Id.

78 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
compelled to assist them because of their commitments to the MDGs.
Calling attention to the issue of maternal death as a human rights
issue gives impetus to international efforts to help states meet their duty to
provide pregnant women with maternal health care. A recent example
illustrates this point. In April 2010, the British medical journal Lancet
published a paper that found the number of women who die in pregnancy or
childbirth had dropped by more than 35% over 28 years. 151 Lancet’s editor,
Dr. Richard Horton, wrote in an accompanying comment “that he was
pressured to delay publishing the report because of the potential damage to
maternal advocacy campaigns.” 152 While the Lancet article found that
maternal deaths had fallen to about 343,000 in 2008, another report issued
only days later by a global alliance hosted by the World Health Organization
“claimed progress in maternal health was at a standstill” and that up to
500,000 women still die in childbirth every year. 153 The WHO alliance
findings did not explain where their data came from, but in the same report
U.N. officials claimed they needed $20 billion every year to “save women and
children in developing countries.” 154 Paradoxically, good news can be bad
news when it comes to motivating states to address human rights issues; “the
more people who are dying, the more money U.N. officials can raise, making
some experts not keen to announce success or acknowledge that a problem is
not as bad as they once thought.” 155 Advocates are concerned that progress in
reducing maternal mortality – progress in meeting the duty to provide
maternal health care – “will detract from the urgency of their cause.” 156
The Lancet study cited a number of reasons for the improvement,
including “the increasing ability of ‘skilled attendants’ – people with some
medical training – to help women give birth.” 157 Dr. Horton argued that the
study’s finding would not conflict with advocacy goals, stating in a telephone
interview with the New York Times:
People who have spent many years committed to the issue of
maternal health were understandably worried that these figures
could divert attention from an issue that they care passionately
about. But my feeling is that they are misguided in their view that it
151 M. Cheng, Politics of aid seen in clash over maternal deaths, ASSOCIATED PRESS (14 April, 2010),
available at http://www.google.com/hostednews/ap/article/ALeqM5j-phKb8xCQcxd8xanFFF
7f1IN3oAD9F2R4H00.
152 Id.
153 Id.
154 Id.
155 Id.
156 D. Grady, Maternal Deaths Decline Sharply Across the Globe, NY TIMES (13 April, 2010), available at
http://www.nytimes.com/2010/04/14/health/14births.html.
157 Id.

THE RIGHT TO MATERNAL HEALTH CARE 79
would be damaging. My view is that actually these numbers help
their cause, not hinder it. 158
Dr. Horton argued that the new data should encourage the world’s
politicians to spend more on “pregnancy-related health matters,” as the data
dispels the belief that statistics have been stuck on one place for decades,
instead showing that money allocated to women’s health is actually
accomplishing something. 159 The debate over the publication of the Lancet
article not only demonstrates how critical international cooperation is in
capacity building (as advocates for maternal health care argue, there is a dire
need for international aid to help states meet their duty to provide maternal
health care), but also shows that the right to maternal health care continues to
be defined as a human right in the international context. A report issued
concurrently with the Lancet article by the Partnership for Maternal, Newborn
and Child Health, specified the improvements that are saving the lives of
women around the world and causing the numbers of maternal death to
decrease:
For instance, India pays women to get prenatal care and skilled care
for delivery. Nepal provides home visits for family planning.
Malawi is training nonphysicians to perform emergency Caesarean
sections. Brazil has set up a health system that provides free primary
care and skilled attendance at birth for all. 160
Whether or not the Lancet findings will reduce state commitments to
capacity building for providing maternal health care, the findings do also
show that recognizing the right to maternal health care as a human right is
working in preventing maternal mortality around the world.
I agree with Sadasivam’s assertion that “even a broad-based human
rights approach does not go to a crucial aspect of the problem: the failure of
public health systems in developing countries,” but I have attempted to assert
that the formal articulations of the right to maternal health care international
law, which are being advanced through the development of customary
international law and through individual lawsuits, provide a foundation from
which advocates for maternal health care can advance their goals. 161
Asserting that the right to maternal health care is a human right is a way to
develop policy alternatives, both in the international law and “extra-legal”
realms. As Alicia Yamin, former Director of Research and Investigations at
Physicians for Human Rights, has stated:
158 Id.
159 Id.
160 Id.
161 See supra note 6.

80 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Applying the label human rights is in no way a magical panacea or
guarantee of effectiveness with respect to any issue, as the gross
breach between discourse and practice in even the narrow area of
torture attests. Yet, the nongovernmental human rights movement
has already amply demonstrated that it can take issues that were
previously not considered to be human rights issues, such as
landmines, and not only make them so, but also create normative
instruments and standards and mobilize public and state action with
respect to them. 162
Weston writes on the need for a strategy with a “multitude of
mechanisms and techniques” at all levels, “from the most local to the most
global,” engaging all elements of society and proceeding with imagination
and energy to succeed in the abolition of child labor. 163 Such a multifaceted
strategy is necessary to ensure maternal health care for pregnant women, and
thereby prevent maternal mortality. I have presented policy alternatives for
states and individuals to advance international law to strengthen the right to
maternal health care as a human right, and I have briefly examined strategies
in the “extra-legal” realm (such as education and video advocacy) to work to
further develop the right to maternal health care. Continued work is needed.
Providing maternal health care is working to reduce maternal mortality, as
evidenced by the Lancet study, and continuing to advocate for the right to
maternal health care as a human right will continue to prevent maternal
mortality in the future.
162 Yamin, supra note 80, at 1244.
163 Weston, supra note 75, at 109.

Between judicial enabling and adversarialism: The role of
the judicial officer in protecting the unrepresented accused in
Botswana in a comparative perspective
ABSTRACT
R.J.V. Cole*
The role of the judicial officer in Botswana’s adversarial system has evolved
over the decades. Traditionally, the judicial officer in the adversarial system
plays a neutral role while the parties present their cases. The semblance of
neutrality compels the judicial officer to remain passive and refrain from
interfering with the process. Over the years, the courts have recognised that the
unrepresented accused cannot get a fair trial as she is unaware of the rules of
procedure and evidence. This being the case, the unrepresented accused
cannot effectively participate in the proceedings. Consequently, the courts
have over the years stated that judicial officers have a duty to assist
unrepresented accused persons. This position was recently given added
impetus by the Court of Appeal. This article discusses the duty of the judicial
officer to the unrepresented accused and its implications for Botswana’s
adversarial system. In so doing, comparative analysis is made with Australia,
South Africa and to some extent Namibia, which share similar (adversarial
common law) systems with Botswana.
1. INTRODUCTION
The Court of Appeal recently in the case of Nieklas Willem v The State, 1
reiterated the duty of judicial officers to advise unrepresented accused persons
of their procedural rights. In so doing, the Court was not venturing into pristine
environment. What is symbolic about this judgment, however, is that the Court
urged the relevant authorities to come out with a check list for the guidance of
judicial officers, indicating that it continues to be inundated with appeals
relating to omissions by judicial officers to advise unrepresented accused of
their procedural rights. The Court noted that this leads to a waste of valuable
time in dealing with such irregularities and the concomitant enquiry into
whether miscarriage of justice has occurred.
It is interesting to note that the Court did not itself take the
opportunity to make a comprehensive (if not exhaustive) list of instances
81
Lecturer, Department of Law, University of Botswana, LLB (Hons) (FBC-USL), LLM (UNISA), LLD
(Stell).
1 Court of Appeal Case No. CLCLB-092-2009, delivered on the 28 January, 2010 (unreported).

82 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
wherein judicial officers have a duty to assist the unrepresented accused. This
of course was an opportunity missed. A missed opportunity because cases
dealing with judicial advice generally refer to specific rights and are mostly
dealt with by the High Court. Nieklas on the other hand provided an
opportunity for a comprehensive guide to be provided in a single case by no
less than the highest court of the land. The rippling effect of this case, however,
is that the direction of the Court requiring a checklist has received initial
response by the authorities. Under the direction of the Chief Justice, the
Registrar and Master of the High Court circulated a circular 2 to judicial
officers, listing instances where judicial guidance should be given to
unrepresented accused persons. The list places a duty on judicial officers to;
“(a) Advise an unrepresented accused person at the onset of the
constitutional right to legal representation at [her] own expense,
(b) Advise an unrepresented accused person of the right or purpose
(meaning) of cross- examination,
(c) Advise an unrepresented accused person of any special statutory
defences available to him/her,
(d) Advise an unrepresented accused person of the right to address
the Court at the close of the trial or in mitigation and
(e) Advise an unrepresented accused person about exceptional
extenuating circumstances in the case of compulsory sentences.”
This document is by no means a Judicial Circular and was only
intended as a temporary stopgap measure, awaiting the formulation of a
comprehensive judicial guide or checklist. Indeed, the compilation of a
standard checklist for judicial officers is impending. While the Registrar’s
Circular is not law and while the Court of Appeal itself abdicated from setting
a comprehensive guide, the Court ignited a chain of events which demand an
excursion into the judicial duties in relation to the unrepresented accused.
The purpose of this article is two-fold. First, it seeks to discuss the
duty of the judicial officer in relation to the unrepresented accused. In so
doing, it catalogues and discusses the areas covered by the Registrar’s
Circular as well as other possible areas. It may be seen, admittedly, as a
precocious endeavour at setting the groundwork for what is to be expected in
the final instruction to judicial officers. Second, it is envisaged that the
direction given by the Court in Nieklas will consequently reinforce the
participation of judicial officers in criminal trials. This article, therefore,
discusses the implications of this for Botswana’s adversarial system. The
second part of the article discusses the role of a judicial officer in the
adversarial process. The discussion views her role against the inquisitorial
2 Registrar’s Circular No. 1 of 2010.

UNREPRESENTED ACCUSED IN BOTSWANA 83
backdrop. The third part highlights the plight of the unrepresented accused.
The fourth part seeks to conceptualise the role of judicial officers in offering
assistance to the unrepresented accused. The case law of a number of
jurisdictions form the basis of the discussion. Also, comparative analysis is
made between Botswana, Australia, South Africa and to some extent
Namibia. This creates an opportunity to benchmark Botswana against other
jurisdictions influenced by the common law adversarial tradition and measure
Botswana’s fair trial credentials. The fifth part discusses the judicial enabling
role of the judicial officer and specific areas where judicial officers are
required to give assistance to the unrepresented accused. The sixth part
highlights the implications of judicial enabling. Part seven, the conclusion,
underscores the fact that judicial enabling is fuelled by the demand of a fair
trial which in turn has brought significant change to the landscape of the
criminal process.
2. THE ROLE OF THE JUDICIAL OFFICER
Two principal procedural models have evolved worldwide, the adversarial and
inquisitorial models. The role of judicial officers is to some extent determined
by a cleavage of dichotomy setting apart these two models. The role of the
judicial officer is for practical purposes, determined by the model within which
she operates. While the judicial officer mainly remains aloof in the classical
adversarial system, she takes control of proceedings in the inquisitorial
tradition.
2.1 The judicial officer and the adversarial system
Judicial officers ascertain facts – barring the jury system – and apply the law
to those facts in order to resolve disputes placed before them. But the mode of
fact-finding is tailored to a large extent, on the procedural model wherein the
judicial officer operates. In Botswana, a judicial officer presiding over a
criminal matter is governed by the Anglo-American adversarial tradition. The
classical feature of this arrangement dictates that the judicial officer is
disengaged from the contest and allows the parties to present their case. 3 This
3 R.M. Hayden and J.K. Anderson, “On The Evaluation of Procedural Systems in Laboratory Experiments:
A Critique of Thibaut and Walker,” 3 (1/2) Law and Human Behaviour (1979), p. 21 at 22; E. Allan Lind,
J. Thibaut and L. Walker, “Discovery and Presentation of Evidence in Adversary and Nonadversary
Proceedings,” 71(6) Michigan Law Review (1973), p. 1129 at 1143; A.S. Goldstein, “Reflections on Two
Models: Inquisitorial Themes in American Criminal Procedure,” 26(5) Stanford Law Review (1974), p.
1009 at 1016; J. Thibault, L. Walker and E. Allan Lind, “Adversary Presentation and Bias in Legal

84 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
restrained posture symbolises an impartial and disinterested umpire. 4 Since it
is the responsibility of the parties to present their evidence, the judicial officer
serves as a gatekeeper and ensures that the rules of evidence and procedure are
observed. The judicial officer guides the process by way of procedural and
evidential rules. Questions relating to the admissibility of evidence are
primarily raised by the parties and determined by the judicial officer. This
means that proof lies with the parties. If the accused is unrepresented she has
to face a trained prosecutor. The chances of success of an unrepresented
accused facing a trained prosecutor are likely to be compromised. The
difficulty with having a passive judge is that the discharge of procedural and
evidential responsibility lies with the parties and this puts the unrepresented
accused in an unfavourable position. 5 Since each party “owns” its evidence in
the adversarial contest, the parties may be selective in the presentation of their
evidence, keeping away vital evidence that is damaging to their case and are
openly bias in their conduct of the case. 6 Adversarial lawyers contend that
cross-examination is a vital tool in unearthing the truth. Perhaps this should
complement the “passivity” of the adversarial judge. The parties dig in
themselves primarily through cross-examination. Cross-examination is the
principal mechanism for unearthing the truth. 7 On the other hand, a digging-in
judicial officer as is the case with the inquisitorial investigating judge will
certainly have significant powers that allow her to unearth the truth. After all,
she is able to summon evidence and witnesses without the possibility of being
accused of descending into the arena. Inquisitorial lawyers for their part,
contend that cross-examination only serves to discredit a truthful but
vulnerable or intimidated witness. 8 This, according to them, is a veritable
3 R.M. Hayden and J.K. Anderson, “On The Evaluation of Procedural Systems in Laboratory Experiments:
A Critique of Thibaut and Walker,” 3 (1/2) Law and Human Behaviour (1979), p. 21 at 22; E. Allan Lind,
J. Thibaut and L. Walker, “Discovery and Presentation of Evidence in Adversary and Nonadversary
Proceedings,” 71(6) Michigan Law Review (1973), p. 1129 at 1143; A.S. Goldstein, “Reflections on Two
Models: Inquisitorial Themes in American Criminal Procedure,” 26(5) Stanford Law Review (1974), p.
1009 at 1016; J. Thibault, L. Walker and E. Allan Lind, “Adversary Presentation and Bias in Legal
Decisionmaking,” 86(2) Harvard Law Review (1972), p. 386 at 388; A. Lind, J. Thibaut and L. Walker,
“A Cross-Cultural Comparison of the Effect of Adversary and Inquisitorial Processes on Bias in Legal
Decisionmaking,” 62(2) Virginia Law Review (1976), p. 271 at 273; J. Thibaut, L. Walker, S. La Tour and
P. Houlden, “Procedural Justice as Fairness,” 26(6) Stanford Law Review (1974), p. 1271 at 1275; J.H.
Langbein, The Origins of Adversary Criminal Trial, Oxford, Oxford University Press (2005), p. 311; M.
Damaska, “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative
Study,” 121 University of Pennsylvania Law Review (1973), p. 506 at 510.
4 Thibault, Walker and Allan Lind, op.cit. at p. 390; M. Damaska, The Faces of Justice and State Authority:
A Comparative Approach to the Legal Process, New Haven/London, Yale University Press (1986), p. 3.
5 Allan Lind, Thiabaut and Walker, op.cit. at p. 1143.
6 Thibaut, Walker, La Tour and Houlden, op.cit. at p. 1275; J. McEwan, Evidence and the Adversarial
Process (The Modern Law), 2 nd ed., Oxford, Hart Publishing (1998), p. 3; G. Brouwer, “Inquisitorial and
Adversary Procedures – A Comparative Analysis,” 55 Australian Law Journal (1981), p. 207.
7 C. Roodt, “Fact Finding, Fairness and Judicial Participation in Criminal Proceedings,” 44(2) Codicillus
(2003), p. 68 at 69.
8 See generally L. Ellison, The Adversarial Process and the Vulnerable Witness, Oxford, Oxford
University Press (2001); K. Quinn, “Justice for Vulnerable and Intimidated Witnesses in Adversarial
Proceedings?,” 66(1) Modern Law Review (2003), p. 139; see also E. Slater, “The Judicial Process and the
Ascertainment of Fact,” 24(6) Modern Law Review 1961), p. 721 at 722.

UNREPRESENTED ACCUSED IN BOTSWANA 85
weakness in the adversarial contest. But the main obstacle facing the judicial
officer in Botswana’s adversarial system is orality. The principal mode of
ascertaining the truth is by oral evidence. Since witnesses are called to support
a particular side, the tendency of witness loyalty and bias cannot be ruled out.
Ultimately, the judicial officer is left to depend on what counsel, the witnesses
and exclusionary rules allow to be filtered into the system. Clearly, the judicial
officer relies on the parties to unearth the truth. This in itself is a barrier to
unearthing the truth, a situation that is not made any easier when the accused is
unrepresented.
The unrepresented accused is not equipped to participate fully in the
adversarial trial. Because of this, the unrepresented accused suffers substantial
disadvantage. Classical adversarial adherence is, therefore, unsustainable and
the judicial officer cannot bury her head in the sand in ostrich-like fashion,
while the unrepresented accused suffers injustice. This will make a mockery
of the whole process, especially as the State has the distinct advantage of
investigating powers and permanent prosecutorial staff and offices. The State
investigates, scoops up vital documents and interviews all possible witnesses,
which the accused is usually unable and not permitted to do. That a trained
prosecutor then marshals the evidence in the face of an unassisted accused
does carry undertones of medieval inquisitions. The adversarial system,
therefore, can only operate fully if the accused is assisted through procedural
and evidential hurdles.
2.2 The judicial officer and the inquisitorial system
In the continental inquisitorial system, the judicial officer is traditionally an
investigating judge. She controls the investigations and dominates the trial. 9
The prosecutor, therefore, is not an active player and the imbalance that is
synonymous with the adversarial process is removed. An investigating judge
or juge d’instruction plays a dominant role as early as the pre-trial stage in that
it is she who investigates the crime and collects the evidence. 10 She generally
interrogates the accused and witnesses, confronts them with each other, orders
for searches and seizures and commissions experts to assist in the
investigations. 11 In the adversarial contest, these would be seen as very wide
powers and in any event, functions that normally fall within the purview of the
police. In the inquisitorial system, the results of the investigations, statements
9 Hayden and Anderson, op.cit. at p. 22; Thibault, Walker and Allan Lind, op.cit. at p. 388; Lind, Thibaut
and Walker, op.cit. at p. 276; Goldstein, op.cit. at p. 1019; J.A. Andrews and M. Hirst, Andrews & Hirst
on Criminal Evidence, 3 rd ed., London, Sweet & Maxwell (1997), p. 1.
10 M. Ploscowe, “Development of Inquisitorial and Accusatorial Elements in French Procedure,” 23(3)
Journal of Criminal Law and Criminology (1932), p. 372 at 373; Goldstein, op.cit. at p. 1019.
11 Ploscowe, op.cit. at p. 373; Thibault, Walker and Allan Lind, op.cit. at p. 388; Lind, Thibaut and Walker,
at p. 276.

86 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
of witnesses and the accused’s statement are compiled into a dossier. 12 The
evidence is thus developed for both sides by the judicial officer. 13 To this
extent, there is relative balance between the prosecution and the accused.
3. THE CIRCUMSTANCES OF THE
UNREPRESENTED ACCUSED
3.1 The circumstances of the accused during the
investigation
The accused is at her most vulnerable during the investigation process. The
overwhelming shock that the potential loss of liberty inflicts on the individual
is immeasurable. This is particularly aggravating in the case of first offenders.
The accused is basically at the mercy of the police and has little or no access to
the outside world, should the police decide to incarcerate her during
investigations. As is typical of adversarial systems, in Botswana, investigations
are conducted solely by the police. Neither the judiciary nor the accused are
involved. In fact, the accused is an object of the investigations. Witnesses and
exhibits are basically seized by the police and the accused is not given access
to the proceeds of the investigations as and when they yield results. Though it
is said that the accused is not compelled to answer to questions put to her by
the police, adverse inference may be drawn from refusal by the accused to
answer incriminating questions. 14
3.1.1 Lack of legal representation
The right to legal representation is guaranteed by section 10(2)(d) of the
Constitution. 15 However, it is doubtful whether this provision extends to pretrial
investigations. 16 Unfortunately, case law on the right to legal
representation is limited to the trial of the proceedings. In actual fact, no legal
sanctions attach for deprivation of the accused of access to legal representation
at the pre-trial stage. Consequently, the accused’s rights are severely curtailed
at this stage. Since, judicial officers are not involved at this stage, the accused
12 Ploscowe, op.cit, at p. 376; Lind, Thibaut and Walker, op.cit. at p. 276; Goldstein, op.cit. at p. 1019.
13 Thibaut, Walker and Allan Lind, op.cit. at p. 388.
14 Attorney-General v Moagi [1981] B.L.R. 1 (CA).
15 The section provides: “Every person who is charged with a criminal offence shall be permitted to defend
himself before the court in person or, at his own expense, by a legal representative of his own choice.”
(emphasis added).
16 See D.D. Ntanda Nsereko, “Legal Representation in Botswana,” Israel Yearbook on Human Rights
(1988), p. 211; B. Molatlhegi, “The Right to Legal Representation in Criminal Proceedings in Botswana:
More than a Court-Room Right for the Knowlegeable Suspect?,” 13(3) South African Journal of Human
Rights (1997), p. 458; B. Molatlhegi, “Undefended Accused Persons, The Courts and Procedural Justice
in Botswana,” 4(2) East African Journal of Peace and Human Rights (1998), p. 185 at 187.

UNREPRESENTED ACCUSED IN BOTSWANA 87
is left at the mercy and devices of the police. 17 In the absence of judicial and
constitutional pre-trial legal representation guarantees, the police often operate
on the premise that access to counsel at this stage is granted as a matter of
courtesy. 18
3.1.2 Confessions
The accused is usually an object of the investigations. More often than not, the
bulk of the State’s case will emanate from information they obtain from the
accused. The monotony of the evidence of investigating officers narrating what
the accused told them or what the accused pointed out is all too familiar.
Though the law requires that confessions made to the police should
be confirmed in writing by a judicial officer as a requirement for admissibility
in court, 19 this is not a sufficient safeguard for ensuring that confessions are
obtained freely and voluntarily. Sometimes, suspects are made to appear
before judicial officers to make confessions through threats. 20 It must be
noted also, that while judicial confirmation is required as a condition for the
admissibility of confessions, this does not apply in relation to admissions.
Evidentially, therefore, confessions can be admitted under the guise of
admissions. This is because the distinction between confessions and
admissions are a matter of definitional technicality. 21 A Confession is defined
17 Molatlhegi reiterates that the presence of a legal representative during interrogations will go a long way in
protecting suspects against possible police abuse. See B Molatlhegi, op.cit. at p. 187.
18 See Molatlhegi, op.cit. at p. 460; Ntanda Nsereko, op.cit. at p. 213.
19 Section 228(1)(ii) of the Criminal Procedure and Evidence Act provides that confessions made to police
officers are inadmissible as evidence in court unless they are confirmed in writing in the presence of a
judicial officer; in the case of Kgaodi v The State [1996] B.L.R. 23(CA) at p. 28C-F Amissah JP
rationalised the section thus: “The provision prohibits the admission in evidence of confessions made to
police officers simpliciter. It does not matter whether the confession to the police officer is voluntary or
not. The object of the prohibition is obviously to avoid arguments at trial over whether confessions to
police officers were freely made, without inducement, physical or otherwise. As is well known,
allegations are often made of police officers torturing or beating up suspects and accused persons or using
other unlawful means in order to obtain statements which advance the investigation or prosecution of the
cases. Some of these allegations have been found to be true by the courts although the majority of them
often turn out to be unfounded. True or not, it is in the interest of justice that these charges, or
opportunities for them to be made, should be minimised, if not altogether eliminated. The prohibition
discourages the police from using force or other forms of inducement in extracting confessions to bolster
up their cases, because if the court would not admit any confessions obtained by them at all, there should
be no need for them to use unlawful methods to obtain them. But in order not to exclude genuine
confessions made by accused persons even if made to police officers altogether, the law permits the
admission of such confessions if ‘confirmed and reduced to writing in the presence of a magistrate or any
justice who is not a member of the Botswana Police Force.’”; Ntanda Nsereko, op.cit. at p. 213;
Molatlhegi, op.cit. at p. 460.
20 In the case of S v Baalakani Moloise [1977] B.L.R. 28 the accused was taken before a District
Commissioner to make a statement. The reason given by the accused for making the statement was – “I
was asked to go to make [sic] statement before the D.C. by the C.I.D. Police.”; in State v Ramatswidi
[2005] 1 B.L.R. 452 the accused alleged that he had spent two days in police cells and was told by the
investigating officer that he would only be released if he made a confession to a judicial officer.
21 Corduff J stated in State v Moithoke [1981] B.L.R. 219 at p. 223: “This is a very restricted and artificial
definition and the only purpose it serves is to free a greater number of statements from the effects of the
Second Proviso [That is, S 228(1)(ii) of the Criminal Procedure and Evidence Act], which requires that
confessions made to police officers are inadmissible unless they are confirmed in writing in the presence
of a magistrate or any justice.”

88 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
as an unequivocal admission of guilt, the equivalence of a guilty plea in a
court of law. 22 Therefore, for a statement of the accused to amount to a
confession, it must amount to an admission of all the elements of the offence.
In addition it must negative all defences. Admissions on the other hand, relate
to the acceptance of certain facts as true. 23 In this regard, several pieces of
self-incriminatory statements are admissible without judicial endorsement
merely because the statements do not amount to admissions of all the elements
of the offence and do not negative possible defences. Consequently,
admissions may possibly be admitted without proper legal safeguards, merely
because they do not satisfy the classical definition of a confession in
Botswana. These same admissions when pieced together, may lead to an
inference of the accused’s guilt. The overly narrow definition of a confession
therefore means that an accused may in actual fact be recruited to incriminate
herself under circumstances that are far from being voluntary, and such selfincriminating
statements are admissible in court as admissions. 24 The
artificial distinction between confessions and admissions means that
admissions which implicate the accused are admissible in evidence whether or
not they are confirmed in writing by a judicial officer. This is so because
statements that do not amount to an unequivocal admission of guilt of all the
elements of an offence, do not amount to a confession. 25 They are admissible
in the absence of judicial confirmation. The prosecution’s case can, therefore,
be built from bits and pieces of admissions. All such admissions are
admissible without the judicial supervision provided for by section 228(1)(ii).
This effectively allows the admitting into evidence of confessions through the
back door, under the guise that they are admissions. When once the pre-trial
process is tainted with unfairness, the trial proper is at the risk of being unfair
also.
22 Mohalenyane v The State [1984] B.L.R. 291; R v Becker 1929 AD 167; see also State v Miclas Habane
[1971] 2 B.L.R. 66; Martlouw v The State [1993] B.L.R. 306; Moseki v The State [1995] B.L.R. 690;
State v Khama [2000] 1 B.L.R. 209; State v Ramatswidi op.cit. note 20 supra.
23 Desai and Another v The State [1985] B.L.R. 582.
24 Murray J stated in State v Mosarwa and Mapitsi High Court, Criminal Trial No. 37 of 1985 (Unreported),
that a better definition of a confession would be: “An admission made at any time by a person accused of
an offence, stating or suggesting the inference that he committed that offence.”; Corduff J stated in State v
Moithoke op.cit. note 21 at p. 223 supra: “This is a very restricted and artificial definition and the only
purpose it serves is to free a greater number of statements from the effects of the Second Proviso [That is,
S 228(1)(ii) of the Criminal Procedure and Evidence Act], which requires that confessions made to police
officers are inadmissible unless they are confirmed in writing in the presence of a magistrate or any
justice.”
25 Desai and Another v The State op.cit. note 23 supra; Mohalenyane v The State op.cit. note 22 supra; R v
Becker 1929 AD 167; State v Miclas Habane op.cit. note 22 supra; Martlouw v The State op.cit note 22
supra; Moseki v The State op.cit. note 22 supra; State v Khama op.cit. note 22 supra; State v Ramatswidi
op.cit. note 20 supra; Mashabile v The State [1984] B.L.R. 96 (CA).

UNREPRESENTED ACCUSED IN BOTSWANA 89
3.2 The circumstances of the accused at trial
When we read our law books and discover that up until eighteenth century
Europe, accused persons were not allowed to defend themselves nor have legal
representation; and that torture was part of the criminal process, 26 we react
with shock and disdain. Barring the medieval sanction of torture, the plight of
the present-day unrepresented accused raises stark similarities. The State
conducts investigations, collects all relevant documents and interviews
possible witnesses. The accused usually cannot do this. The evidence is
presented in court by a trained prosecutor and the unrepresented accused is
clueless as to the intricacies of the process. The majestic and subliminal
solemnity of the courtroom, more than ever leaves the unrepresented accused
awestruck and in great trepidation. 27
In the adversarial trial, while the accused is presumed innocent, she
stands the risk of conviction if she is unable to make a full answer to the prima
facie case of the prosecution. 28 Effective defence only comes with active
participation by the accused at the trial. This includes the ability to object to
prosecution evidence, the opportunity to cross-examine prosecution
witnesses, to call and examine witnesses of her own and to make final
submissions. 29 It is obvious that the ability of the unrepresented accused to
participate at her trial is patently compromised due to the intimidating
atmosphere in the court room and her lack of legal knowledge. This has legal
implications and patently renders the trial unfair. It need not be emphasised
that the consequences of conviction can be severe. They include incurring a
criminal record which can lead to denial of social privileges, civic rights, and
even imprisonment. Public conscience therefore cannot permit a system
wherein the accused cannot make use of the legal safeguards open to her, but
faces the risk of losing her liberty. In this regard, judicial enabling plays a
crucial protecting role in respect of the unrepresented accused. The role of the
judicial officer, therefore, in guiding the unrepresented accused through the
legal hurdles of the adversarial system cannot be understated.
26 Ploscowe, op.cit. at p. 376.
27 E. Slater, “The Judicial Process and the Ascertainment of Fact,” 24(6) Modern Law Review (1961), p. 721
at 721-722.
28 Attorney-General v Moagi op.cit. note 14 supra.
29 B. Mckillop, “The Position of Accused Persons under the Common Law System in Australia (More
Particularly in New South Wales) and the Civil Law System in France,” 26(2) University of New South
Wales Law Journal (2003), p. 515 at 527; J. Jackson, “The Effect of Human Rights on Criminal
Evidentiary Processes: Towards Convergence, Divergence or Realignment?,” 68(5) Modern Law Review
(2005), p. 737 at 751; S. Trechsel, Human Rights in Criminal Proceedings, New York, Oxford University
Press (2005), p. 89; Mbisana v Attorney-General and Another [1999] 1 B.L.R. 189; State v Segana Ntibi
[1968-1970] B.L.R. 330; Motshwane and Others v The State [2002] 2 B.L.R. 368.

90 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
4. JUDICIAL ENABLING
4.1 Judicial enabling in Botswana
Recognition of the plight of the unrepresented accused and the demand for
judicial assistance is well settled in Botswana case law. This stems from the
duty on the court to ensure that the accused gets a fair trial. 30 Thus in the case
of Mmopi and Another v The State 31 Murray J had this to say:
“When a person is on trial for a serious offence and does not have
the advantage of legal representation I consider that it is essential
that the magistrate should offer advice by way of explaining court
procedure to such a person. An unrepresented accused is under a
severe disadvantage. If he is given no assistance on matters of
procedure that one would not necessarily expect to be known to an
unrepresented accused person injustice could easily result.” 32
Similarly, in Tshukudu v The State 33 Dibotelo J (as he then was)
noted that:
“After the foregoing exchanges between the appellant and the
magistrate the trial duly proceeded and as I have already stated the
appellant was convicted at the end of the trial in which the learned
magistrate merely stated at the close of the prosecution case that the
appellant's rights had been explained to him without recording what
he told the appellant by way of explanation of his rights or what
those rights were. In my view it is often not enough for a trial court,
especially where an accused is not represented by counsel, merely to
record that it had fully explained to the accused his rights without
briefly recording on the record what those rights were and any such
omission may be fatal to a conviction.” 34
In State v Matlhogonolo Masole, 35 O'Brien Quinn CJ wrote:
“Where a single charge or a single count charges two or more
offences that charge or count is bad for duplicity. But it is for the
30 Lesetedi and Another v The State [2001] 1 B.L.R. 393; Gare v The State [2001] 1 B.L.R. 143 (CA);
Morobatseng and Others v The State [2003] 1 B.L.R. 466.
31 [1986] B.L.R. 8.
32 Ibid at p. 10F-H.
33 [2000] 1 B.L.R. 400.
34 Ibid at p. 402F-H; see also Obonetse Ngakaemang v Regina [1964-1967] B.L.R. 131; Walter Madisa v
Regina [1964-1967] B.L.R.157; State v David Rantabana and Another [1981] B.L.R. 255; Tsie v The
State [1999] 2 B.L.R. 305.
35 [1982] B.L.R. 202.

UNREPRESENTED ACCUSED IN BOTSWANA 91
accused to raise that point before his plea is taken or, as soon as the
evidence discloses duplicity in the charge or count, in cases where
duplicity is not immediately apparent. However, where, as is the
usual position here, an accused is not legally represented, the
Magistrate or Judge trying the case should examine the charge or
count and if he considers it to be defective on grounds of duplicity
or for any other reason it is his duty to raise the point and, if
necessary, have the charge or count amended or withdraw or to
refuse to accept it at all.” 36
4.2 Judicial enabling in Australia
In the case of Dietrich v the queen, 37 the High Court of Australia noted the
inherent unfairness characteristic of trials wherein accused persons are
unrepresented. The Court recognised the fact that lack of legal representation
places the accused at a disadvantage. The Court reiterated that a proper defence
of the accused requires a proper knowledge of the rules of evidence and
procedure. Highlighting the legal complexities faced by the unrepresented
accused and the need for professional guide, the Court had this to say:
“Skill is required in both the examination in chief and the crossexamination
of witnesses if the evidence is to emerge in the best
light for the defence. The evidence to be called on behalf of the
accused, if any, must be marshalled so as to avoid raising issues
which will be damaging to the case for the Defence. A decision
must be made whether the accused is to give evidence on oath, is to
make an unsworn statement or is to remain mute. Competence in
dealing with these matters depends to a large extent upon training
and experience. And, as Murphy J pointed out in McInnes, an
accused in person cannot effectively put some arguments that
36 Ibid at pp. 204-205; In Rabonko v The State [2006] 2 B.L.R. 166 Lesetedi J noted at p. 168C-D: “An
accused person has in terms of s 10(1) of the Constitution an entitlement to a fair trial. In my view, a fair
trial cannot be realised where an accused person does not understand the import of the criminal
proceedings which he is facing nor have a rudimentary idea as to how not only to present his case but to
conduct his defence by way of putting the essential elements of his defence to the prosecution witnesses.
That there is a duty upon a presiding judicial officer to assist an accused person who is unrepresented and
seems not to understand the court procedures, in the conduct of his defence has been expressed in a
number of cases.”; Lord Weir JA also remarked in Gare v The State op.cit. note 30 supra at pp. 148G-
149A that: “In any trial where the accused person defends himself, either because he chooses to do so or
because he cannot afford a legal representative, an onerous responsibility lies on the judge to ensure that
he receives a fair trial. There will be cases where the accused may be able to conduct his case with skill
and there will be cases in which the issues at the trial will be obvious to the meanest intelligence. In such
cases it will probably be unnecessary for the judge to intervene. On the other hand there will be cases
where the issues are not straightforward. In such situation the judge will have to be vigilant to ensure that
the defence case does not go by default because of lack of skill or comprehension on the part of the
accused. No hard and fast rules can be laid down as to when or to what extent a court should intervene on
behalf of accused persons. Each case depends upon its own circumstances.”
37 (1992) 177 CLR 292; see also R v Zorad (1990) NSWLR 91 at 95.

92 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Counsel can, such as an argument that, although on the evidence the
accused is probably guilty, he is not guilty beyond reasonable
doubt.”
Similarly, in Mc Innis v R, 38 Murphy J remarked quite pointedly that:
“The notion that an unrepresented accused can defend himself
adequately goes against experience in all but the rarest cases. Even
an experienced lawyer would be regarded as foolish to represent
himself if accused of a serious crime.” 39
Judicial enabling is a settled practice especially in magistrates’
courts. In this regard, judicial officers would ask the unrepresented accused
pertinent questions and also give her an opportunity to speak. The judicial
officer would outline the relevant aspects of the offence, point out possible
mitigating factors to the accused and also provide general guidance on
evidential matters. 40
The Criminal Trial Bench Book 41 specifically provides for judicial
enabling. In this regard, judicial advice should be given to the unrepresented
accused at the commencement of the trial, and where appropriate, as the trial
proceeds. The judicial officer is thus under a duty to outline various
procedural options, modes of objection, the order of evidence, the right to
make submissions, the manner of leading evidence-in-chief, and the right to
cross-examination. 42
4.3 Judicial enabling in South Africa
Judicial enabling is underscored by sections 35(3)(f) and (g) of the South
African Constitution. These provisions are set within the context of the right to
a fair trial. Section 35(3)(f) which caters for the right to legal representation,
demands that the accused be informed of the right. Section 35(3)(g) is to the
effect that where it is necessary to provide the accused with legal aid, she
should be informed of this entitlement. The courts have stated that the duty to
point out the right to legal representation to the accused lies with the judicial
officer. 43 Though the constitutional provisions relating to judicial enabling are
38 (1979) 143 CLR 575.
39 Ibid at p. 589.
40 C. Craigie, “Unrepresented Litigants: The Criminal Justice Perspective,” (2005), available at (last visited 5 October 2010); see also McPherson v R (1981) 147 CLR 512; R v
Gidley (1994) 3 NSWLR 168.
41 Cited in Craigie, Ibid.
42 Ibid.
43 S v Pienaar 2000 (2) SACR 143 (NC); S v Radebe 1988 (1) SA 191 (T); S v Mabaso 1990 (3) SA 185
(A).

UNREPRESENTED ACCUSED IN BOTSWANA 93
limited to the right to legal representation, a number of cases impose a general
duty on judicial officers to assist unrepresented accused persons.
A general rule providing that judicial officers assist unrepresented
accused persons is established in South African case law. 44 In this regard,
judicial officers have a general duty to ensure that unrepresented accused fully
understand their rights, otherwise, the trial may be rendered unfair. 45 This
duty is said to have a close connection with the judicial oath to uphold the
Constitution as well as the constitutional demand to promote the objects of the
Bill of Rights, in the development of the common law. 46 Consequently,
judicial officers have a duty, among others, to alert unrepresented accused of
unfavourable presumptions, 47 the right to testify and the effect of failure to do
so 48 and the purpose of cross-examination. 49
It is clear that judicial enabling is embedded in modern adversarial
systems. In this regard, the gulf between adversarialism and inquisitorialism is
bridged. Judicial guidance to the unrepresented accused is central to the right
to a fair trial. The application of judicial enabling by the courts of Botswana
puts their jurisprudence at par with those of other reputable legal systems.
This element of collegiality is an important yardstick and a positive measure
of the commitment of the courts of Botswana to fair trials.
4.4 In search of definition
At the heart of the above cases which have embraced judicial enabling, is the
recognition of the plight of the unrepresented accused in the criminal process
and the corresponding need for judicial intervention. The judicial officer has
become a third factor participant in criminal proceedings, the first and second
factors being the prosecution and the accused respectively. As a third factor
participant, the judicial officer exercises her duty in ensuring that the trial is
fair. Judicial enabling can therefore, be referred to as a process wherein a
judicial officer engages in a “hand-holding” process, guiding the unrepresented
accused through the trial process by informing her of the procedures. Judicial
officers have become more visible participants in criminal adversarial
proceedings. 50 Effectively, the demand for fairness has resulted in a tripartite
44 S v May 2005 (2) SACR 331 (SCA). See also S v Ndlovu 2002 (2) SACR 325 (SCA); S v Mambo 1999
(2) SACR 421 (W); S v Manale 2000 (2) SACR 666 (NCD).
45 S v Radebe op.cit. note 43 supra.
46 Section 39(2) of the South African Constitution; see P.J. Schwikkard, “Does the Merging of Inquisitorial
and Adversarial Procedures Impact on Fair Trial Rights,” available at http://www.isrcl.org/Papers/
Schwikkard> (last visited 6 October 2010).
47 S v Lango 1962 (1) SA 107 (N).
48 S v Makhubo 1990 (2) SACR 320 (O).
49 S v Lekhetho 2002 (2) SACR 13 (O); S v Mashaba 2004 (1) SACR 214 (T).
50 Steytler notes: “The court is obliged to inform the accused of some of his procedural rights and duties and
to assist him in exercising some of those where he clearly experiences difficulty in doing so.” N.C.
Steytler, The Undefended Accused on Trial, Cape Town, Juta & Co (1988), p. 222; J. McEwan, Evidence
and the Adversarial Process (The Modern Law), 2 nd ed., Oxford, Hart Publishing (1998), p. 2.

94 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
system of proof, as the aloofness of the adversarial judge is displaced by a more
visible arbiter. No doubt, judicial enabling imposes a positive duty in assisting
the unrepresented accused in presenting her defence.
Essentially, failure to advise an accused of her right to crossexamination,
to make closing submissions, to give evidence and to call
witnesses among others, will vitiate the proceedings if the accused has
suffered prejudice. Several of the cases that have insisted on judicial enabling
have married their reasoning with a prerequisite that the judicial officer plays
a role in assisting the unrepresented accused to present her case. It has been
firmly stated that this represents an essential element of the right to a fair
trial. 51 It is clear, therefore, that the expansion of the judicial role is founded
on the fair trial imperative.
5. INCIDENCE OF JUDICIAL ENABLING
5.1 Areas covered by the Circular
It is now settled that procedural rights should be explained to the unrepresented
accused. A number of the areas that require judicial advice were noted in the
Circular and will now be considered.
5.1.1 The duty to advise the unrepresented accused of the
right to legal representation
While it is settled that judicial officers should intervene and advise accused
persons of their procedural rights, judicial approach tends to indicate that no
legal consequence follows in the event of failure to do so, where the accused
has suffered no prejudice. 52 There is no constitutional mandate on the judicial
officer to advise the unrepresented accused of her right to legal representation,
nor have the courts interpreted the duty as such. Therefore, while a legal duty
rests on judicial officers to advise an unrepresented accused of her right to legal
representation, this duty is watered-down by the absence of constitutional
backing. In the case of Moroka v the state 53 the appellant was not informed of
the right to legal representation during the trial. Counsel for the appellant
argued on appeal that this was irregular and should vitiate the proceedings. The
Court noted that there was a common law right of an accused to access legal
advice and legal representation. The Court stated that that right has been
enshrined in section 10 of the Constitution. In relation to the issue whether a
51 Gare v The State op.cit. note 30 supra; State v Sethunya [1986] B.L.R.483; State v Bareki [1979-1980]
B.L.R. 35.
52 State v Matlhogonolo Masole [1982] 1 B.L.R. 202.
53 [2001] 1 B.L.R. 134 (CA).

UNREPRESENTED ACCUSED IN BOTSWANA 95
judicial officer had a duty to advise an accused of her right to legal
representation, the Court held that the duty was not mandatory or peremptory.
The Court stated that it is rather a salutary practice which should be followed
in every case. 54 In the Court’s view, whether failure to advise the accused will
vitiate the proceedings will depend on whether there has been a failure of
justice. The Court found that there was no failure of justice.
The Court relied on section 13(3) of the Court of Appeal Act 55 which
provides that notwithstanding the fact that a point raised on appeal might be
decided in favour of the appellant, the court may dismiss the appeal where
there has been no substantial miscarriage of justice. The Court stated that the
question whether an irregularity has resulted in a failure of justice will depend
upon “whether the Court hearing the appeal considers, on the evidence (and
credibility findings if any) unaffected by the irregularity or defect, that there is
proof of guilt beyond reasonable doubt. If it does so consider, there was no
resultant failure of justice.” 56
This decision is most unfortunate. The fact remains that the evidence
against an accused may appear overwhelming and there may seem to be proof
of guilt beyond reasonable doubt, simply because the accused did not have
legal representation. This is because the unrepresented accused might not be
able to test the credibility of the evidence and the witnesses as a trained
lawyer would. Often, where a lawyer appears halfway through a trial where a
conviction seemed inevitable, the lawyer would materially turn around the
events in favour of the accused as material discrepancies and weaknesses in
the evidence of the prosecution would be unearthed. Therefore, the
“overwhelming evidence test” that courts so often use to override material
irregularities is not safe-proof.
The right to legal representation is a fundamental right, perhaps the
most important, since with effective legal representation the accused’s other
procedural rights will ultimately be protected. It is the right of all rights. One
would think, therefore, that the bearer of such an important right should be
informed of it. Unfortunately, the Court did not regard the duty to inform the
accused of her right to legal representation as a right in itself. It would appear
that the duty was rather regarded as a procedural step, breach of which will
merely lead to a simple irregularity. In a criminal trial, the accused has a
constitutional right to legal representation. A right is meaningless to the bearer
if she is unaware of it. While recognising the duty of judicial officers to
inform accused persons of the right to legal representation, the Court ruled on
54 Similar decisions were reached in Rakgole v The State [2008] 1 B.L.R. 139 (CA); Phologolo v The State
[2007] 1 B.L.R. 61; Masango v The State [2001] 2 B.L.R. 616; Ramogotho v Director of Public
Prosecutions [2007] 1 B.L.R. 334 (CA); Chanda v The State [2007] 1 B.L.R. 400 (CA); Bojang v The
State [1994] B.L.R. 146; Leow v The State [1995] B.L.R. 564.
55 Cap 04:01.
56 Moroka v The State op.cit. note 53 supra at p. 140D-E. Citing section 13(3) of the Court of Appeal Act.

96 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
the basis of the evidence, that there was no failure of justice even though the
Court could not tell how the prosecution’s evidence would have fared under
the microscopic cross-examination of a lawyer.
In contradistinction with Botswana, a somewhat reinforced
commitment to legal representation finds expression in South African
jurisprudence. The tone of the case law lays emphasis on the duty to inform
the accused of the right to legal representation. The philosophical undertone
of this duty is informed by the reasoning that a right is of no use to a person if
she is not aware of it. 57 But more importantly, the duty to inform an accused
of her right to legal representation is supported by the constitutional
imperative. Section 35(3)(f) of the South African Constitution provides that
an accused must be informed of the right to choose and to be represented by a
legal practitioner of her choice. The accused must be informed that she has a
right to communicate with her legal representative and if this is not possible,
she should be provided with an interpreter. 58 A failure on the part of the
judicial officer to inform the accused of this right may result in a complete
failure of justice. 59 It has unfortunately been held, however, that the accused
will suffer no prejudice where, having regard to the evidence, the accused
would have been convicted anyway. 60
The South African courts have also held that the courts have a duty to
encourage the accused to obtain legal representation in respect of offences that
attract severe penalties such as life imprisonment. 61 South Africa, unlike
Botswana, has a public funded legal aid system. The courts have therefore
decided that the accused should be informed of her right to legal aid if she is
too poor to hire a lawyer. 62 This position is informed by the fact that merely
informing the accused of her right to legal representation is insignificant if she
cannot afford a lawyer. 63 The South African system thus ensures a deeper
commitment to ensuring that accused persons are made aware of their right to
legal representation.
5.1.2 The duty to advise the unrepresented accused of the
purpose of cross-examination
The right of an accused to cross-examine the witnesses of the prosecution is
engraved in section 10(2)(e) of the Constitution of Botswana. Cross-
57 P.M. Bekker, T. Geldenhuys, J.J. Joubert, J.P. Swanepoel, S.S. Terblanche and S.E. Van der Merwe
Criminal Procedure Handbook, 9 th ed., Claremont, Juta & Co (2009), p. 80.
58 S v Pienaar op.cit. note 43 supra.
59 S v Radebe op.cit. note 43 supra; S v Mabaso op.cit. note 43 supra.
60 Hlantlala v Dyantyi 1999 (2) SACR 541 (SCA); S v Rudman and Another; S v Mthwana 1992 (1) SACR
70 (A); S v Mthwana 1989 (4) SA 361 (N).
61 S v Mbambo 1999 (2) SACR 421 (W); see also S v Nkondo 2000 (1) SACR 358 (W); S v Manale 2000 (2)
SACR 666 (NC).
62 S v Davids; Dladla 1989 (4) SA 172 (N); S v Mthwana op.cit. note 60 supra.
63 Bekker, Geldenhuys, Joubert, Swanepoel, Terblanche and Van der Merwe, op.cit. at p. 80.

UNREPRESENTED ACCUSED IN BOTSWANA 97
examination is one of the fundamental pillars of the Botswana procedural
system. 64 It is essential to the element of confrontation on which the
adversarial tradition rests. 65 The accused’s right to cross-examination is
closely related to her right to be present during the trial. An accused can only
confront her adversary if she is present and has heard the evidence. 66
The right to cross- examination is a fundamental right, breach of
which amounts to a serious irregularity. Cross-examination puts the veracity
and credibility of a witness’s evidence to the test, while also allowing the
accused to put her version of the events to the witness. In Kebadireng, after a
witness had testified, the trial magistrate granted the prosecutor’s request to
“withdraw” the evidence of the witness. On review, the Court held that once a
witness had testified, she should be cross-examined. Therefore, the accused
was denied the right to cross-examine the witness. The Court held that, there
were no legal consequences where the evidence against an accused is
overwhelming despite a breach of the right to cross-examine. 67 The Court
noted also that there was sufficient evidence from other witnesses to convict
the accused and that the accused was permitted to cross-examine those
witnesses, although it is not clear whether the trial magistrate relied on the
evidence of the witness who was not cross-examined.
In State v Tsatsi piet and another, 68 both accused persons elected to
give evidence on oath. The prosecutor cross-examined each accused but the
accused were not permitted to cross-examine each other. The Court laid
emphasis on the constitutional guarantee of the right to cross-examination,
stating that the right extends to the evidence of co-accused persons and their
witnesses. The Court did not state whether the evidence of each accused
implicated the other. The Court noted the possibility that a witness may have
evidence which might assist the accused in her defence. The accused should
therefore not be prevented from putting questions to such a witness. The
Court, it appeared, found it necessary to consider whether it could still convict
on the basis of other evidence. In the Court’s view, there was a total
miscarriage of justice and the irregularity in failing to give the accused an
opportunity to cross-examine was of such a nature that the accused were
prejudiced.
The case of Rabonko 69 illustrates the manifest injustice that may
64 State v Kebadireng [1984] B.L.R. 167.
65 R. Ellert, Nato “Fair Trial” Safeguards: Precursor to an International Bill of Procedural Rights, The
Hague, M. Nijhoff (1963), p. 30; As Cassim notes, “Cross-examination is regarded as an example of
confronting one’s adversary. Thus, the right to challenge evidence may well include the right to
confrontation.” F. Cassim, “The Rights of Child Witnesses Versus the Accused’s Right to Confrontation:
A Comparative Perspective,” 36(1) Comparative and International Law Journal of Southern Africa
(2003), p. 65 at 66.
66 State v Etang Thai and Another [1971-1973] B.L.R. 25.
67 State v Kebadireng op.cit. note 64 supra.
68 [1971] 2 B.L.R 59.
69 Op.cit. note 36 supra.

98 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
occur where an accused who clearly does not understand the legal process is
left to her own devices. In this case, the accused was charged with the offence
of attempted rape. After the complainant had testified, the accused asked her
only one question which was: “did I rape you?” When called upon to present
his defence, the accused merely stated that he will rely on the medical report.
The report indicated that there was no evidence of penetration. The Court
noted that the accused’s purported cross-examination and defence showed that
he was under the misapprehension that he was facing a charge of rape and not
attempted rape. The Court opined that the trial magistrate should have
explained what the real charge was and explained the object and purpose of
cross-examination to the accused. The Court noted that a trial cannot be fair if
the accused is unable to defend himself by putting essential elements of his
defence to the prosecution witnesses.
In Motswedi and Another v The State, 70 the Court emphasised on the
duty of judicial officers to ensure that accused persons are afforded an
opportunity to cross-examine a co-accused. This can be broadly translated as a
duty to advise the accused of her right of cross-examination. The duty is not
limited to merely indicating to the accused that she has a right to crossexamine.
The full purpose of cross-examination should be explained such that
the accused is able to exercise the right as best as she can. 71 However, while
noting the fundamental importance of the right to cross-examination, the
Court noted that having regard to the accused’s confession, no prejudice had
occurred.
In what can be described as an exemplary example of the judicial
enabling process, the Court in Mponda v The State 72 digressed on the
approach to be employed in explaining the accused’s right of crossexamination.
The Court noted that not only should the judicial officer explain
that the accused is entitled to cross-examination, she should also explain what
is expected of cross-examination. The Court suggested that:
“It might be prudent, and I say this by way of suggestion only, for a
magistrate to say to an unrepresented accused, who appears to him
to need assistance, that, if he disputes material allegations made by
the witness, that he, the magistrate, will help him. The magistrate
might properly offer to turn the version that the accused may
subsequently wish to lay before the court in the course of his case
into questions of the witness. Such offer might be made if the
accused (a) should state that he feels he is unable to effectively
question the witness himself; (b) should wish the magistrate to put
70 [1984] B.L.R. 223.
71 Ntwayame v The State [2008] 1 B.L.R. 167 (CA); Rabonko v The State op.cit. note 36 supra.
72 [1986] B.L.R. 286.

UNREPRESENTED ACCUSED IN BOTSWANA 99
questions upon his behalf; and, (c) tells the magistrate the gist of his
case where it conflicts with the evidence that the witness about to be
cross-examined has given. It should be stressed by the magistrate to
the accused that he is free to take his own course and is under no
obligation to accept the advice of the magistrate. It is of course
important that the magistrate should fully record the nature of the
exchange between himself and the accused if he considers, in the
exercise of his discretion, that it is appropriate for him, by way of
helping the accused to present his case, to take the course I have
outlined as in certain circumstances being desirable.” 73
The Court suggested that the position taken in the South African
cases of S v Sebatana 74 and S v Dipholo 75 be followed. In those cases, it was
emphasised that the judicial officer should assist the unrepresented accused in
her cross-examination by asking her if she agrees to the material allegations
made against her in the evidence of the witnesses. In this way, matters in
dispute will be brought to light.
Mponda recognises that judicial assistance to the unrepresented
accused during cross-examination is part of the general duty of the judicial
officer in assisting the accused to present her defence. No doubt, the
phenomenon of a more visible judicial officer playing a more dynamic role in
ensuring fair treatment of the unrepresented accused is recognisable. On the
basis of Kebadireng, Motswedi and Rabonko however, failure to exercise this
duty will bear no consequences if the accused is not prejudiced.
73 Ibid at p. 291A-D. In Rabonko v The State [2007] 1 B.L.R. 31 at p. 32E-G, Lesetedi J had this to say: “A
judicial officer trying a case in which an unrepresented accused seems to be at sea and unable to either
cross-examine or appreciate what the purpose and import of cross-examination is in my view does have a
duty to advise an accused person as to the purpose of cross-examination. For to know of the existence of a
right and not to know how to exercise it is of cold comfort to the beneficiary of the right. A judicial officer
must however be careful to not descend into the arena and carry out the cross-examination on behalf of an
accused person. A failure by a judicial officer to advise an unrepresented accused person not only of the
right to cross-examination but also its object, may result in a failure of justice where an accused person
seems to have no idea of either the existence of the right or how to exercise it.”; in State v Ncube [2008] 1
B.L.R. 64 at p. 68D-F, Newman J noted that: “In my view, it is proper practice for a trial magistrate to
advise an unrepresented accused, at the commencement of the state’s case or, at the latest, after the first
prosecution witness has testified in-chief, of his right to ask relevant questions of each prosecution
witness, which need not be limited to matters raised in-chief, and which are aimed at: (a) casting doubt on
the accuracy of the evidence given by the witness in-chief; (b) extracting from the witness evidence
supporting the accused’s version of the facts in issue; and (c) in appropriate circumstances, discrediting
the witness’s reliability as a witness.”; evidence of judicial officers generally assisting unrepresented
accused and assisting them to cross-examine witnesses, has been traced to the eighteenth century. See
J.H. Langbein, The Origins of Adversary Criminal Trial, Oxford, Oxford University Press (2003), pp.
314-321.
74 1983 (1) SA 809.
75 1983 (4) SA 757.

100 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
5.1.3 The duty to advise the unrepresented accused of
special and statutory defences
It is well established that judicial officers are under a duty to inform accused
persons of statutory and other defences that may be open to them. In Botswana,
this issue has mainly been determined in sexual related offences. Thus in the
case of State v Bareki 76 it was held that on a charge of rape, where the
complainant is alleged to have been under the age of sixteen years, if the
accused is undefended he must be alerted of the defence provided by section
147(5) of the Penal Code. This section provides a defence in respect of persons
charged with having unlawful carnal knowledge of a girl under the age of
sixteen. 77 The section provides the accused with a defence if the accused can
show that he had reasonable cause to believe, and did believe that the victim
had attained the age of sixteen years. 78 The Court apparently noted that the
accused should be alerted of the defence, since having regard to the evidence,
he stood the risk of being convicted of defilement if the victim was in fact
below the age of sixteen years.
In Gare v The State, 79 the appellant was convicted by a magistrate's
court on a charge of having had carnal knowledge of a girl of less than sixteen
years of age in contravention of section 147 of the Penal Code. The appellant
admitted that he had sexual intercourse with the complainant. He was not
represented at the trial and the inept manner in which he conducted his case
would seem to suggest that he had little understanding of the issues and was
almost certainly unaware of the special defence set out in section 147(5) of the
Penal Code. The evidence of the prosecution established that the complainant
was fifteen years old. The accused did not address the issue of age. The
complainant testified that she told the accused that she was fifteen years old
and he did not dispute this in cross-examination. He admitted to having sexual
intercourse with the complainant, stating that she was his girl friend. While it
was clear that the complainant told the accused that she already had a boy
friend, the appellant did not cross-examine the complainant on her physical
development. In fact, this issue did not appear on the record. The accused did
not avail himself of the special defence set out in section 147(5) of the Penal
Code. Zietsman JA 80 held that in view of the obvious ineptness with which
76 Op.cit. note 51 supra; see also Ramabe v The State [2002] 1 B.L.R. 523; Galebonwe v The State [2002] 1
B.L.R. 46 (CA); Matlakadibe v The State [2004] 1 B.L.R. 44 (CA); Tsunke v The State [2004] 2 B.L.R.
155; Mfwazala v The State [2007] 3 B.L.R. 476; Gaosenkwe v The State [2001] 1 B.L.R. 324; Sefo v The
State [2007] 2 B.L.R. 562.
77 This offence is akin to statutory rape.
78 The section reads: “It shall be a sufficient defence to any charge under this section if it appears to the
court before whom the charge is brought that the person so charged had reasonable cause to believe and
did in fact believe that the person was of or above the age of 16 years or was such charged person’s
spouse.”
79 Op.cit. note 30 supra.
80 Aguda ag JP dissenting.

UNREPRESENTED ACCUSED IN BOTSWANA 101
the accused conducted his defence, and his probable ignorance of the special
defence, the court should have provided him with an explanation of the
special defence. 81 The Court noted that the accused was entitled to a fair trial
in terms of section 10 of the Constitution and that the magistrate was under a
duty to explain the existence and meaning of this defence to him. In the
circumstances, the conviction was quashed.
5.1.4 The duty to advise the unrepresented accused of the
right to address the court at the close of the trial and
in mitigation
Section 181 of the Criminal Procedure and Evidence Act provides for the
prosecution and accused to address the court after all the evidence has been led.
The duty of the judicial officer to make an unrepresented accused aware of this
was declared in Walter Madisa v The State. 82 This case, as with other cases
involving breaches of procedural rights, indicated that failure of an accused to
address the court was inconsequential where no prejudice occurred. 83 The
case, however, amply demonstrates a factual situation where a procedural
mishap would result in prejudice. In this case, the appellant was convicted of
assault occasioning actual bodily harm upon an allegation of a woman with
whom he was cohabiting, that he had kicked her on her private parts, resulting
in bleeding. The appellant and the complainant had three children together. The
complainant in fact testified that she only became aware that she was six
months pregnant as a result of a medical examination conducted after the
81 Lord Wier JA who concurred with Zietsman JA noted at p. 149A-F: “In the present case, the appellant
faced a serious charge, that of unlawful carnal knowledge of a female under the age of 16 years. The
Penal Code provided him with the defence that if it appeared to the court that he had reasonable cause to
believe and did in fact believe that the complainant was 16 years or over he would be acquitted. At the
start of the trial the charge was read over to the appellant and he said that he understood it. The special
defence was not. I do not go so far as to say that there was any requirement to read out the terms of the
statutory defence at the start of the proceedings although my own inclination, particularly in the case of an
unrepresented and illiterate accused, would have been to do so. Moreover if, as the trial progressed it
became clear to the court from questions put in cross-examination that this accused clearly understood the
issue and the nature of any defence open to him, there would have been no need for the court to intervene
with assistance. But in this case, studying the record of proceedings, it appears to me that the appellant
had no idea what was the true issue. Indeed from such questions as he asked, it seems that he was under
the impression that he was facing a charge of rape and that what he was seeking to establish was a defence
of consent. Be that as it may, at no stage as the trial proceeded did it become apparent that the appellant
had any idea that the statutory defence existed or was open to him. This should have become obvious to
the magistrate after the appellant's very brief cross-examination of the first witness, who was the
complainant. The complainant stated that the appellant had asked her age and she told him that she was 15
years old. There was no cross-examination of this vital piece of evidence and, in my view, the magistrate
ought to have intervened there and then to draw the appellant's attention to the special defence and ask
him if he wished to ask the complainant any questions on the matter. Moreover when the appellant came
to give evidence himself, he said noting that could have had any bearing on the special defence and by
refraining from intervening, the magistrate let the opportunity pass for this possible defence to be put
forward.”
82 Op.cit. note 34 supra.
83 See Chiwaura v The State [1985] B.L.R. 201; Moima v The State [1982] 1 B.L.R. 112; Moraeng v The
State [2007] 1 B.L.R. 657; Masango v The State [2001] 2 B.L.R. 616; Moletsane v The State [1995]
B.L.R. 83; Moletsane v The State [1996] B.L.R. 73 (CA); Makwapeng v The State [1999] 1 B.L.R. 48
(CA).

102 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
assault. At the close of the evidence, the trial magistrate stood the matter down
at lunch time, indicating that the matter will proceed after lunch. When the
matter resumed, the magistrate by inadvertence, proceeded to deliver judgment
and sentence without inviting the parties to make submissions. The Court noted
that since the complainant had been pregnant several times before, regard being
had to her evidence that she only realised that she was six months pregnant
during the medical examination, counsel for the accused might have wanted to
address the court on her credibility. Though the Court could not speculate what
counsel could have said, it concluded that the accused was prejudiced under the
circumstances. In any event, closing addresses are crucial to the criminal
process as they allow the accused to call the court’s attention to salient matters
in an endeavour to influence the court in finding in its favour.
Another process wherein an accused endeavours to influence the
decision of the court in its favour is through mitigation. When once convicted,
the accused would implore the court to pass the lenient most possible
sentence. In this regard, the accused should be given an opportunity to address
the court. The accused would normally bring mitigating factors to the
attention of the court. That the accused addresses the court in mitigation is of
paramount importance as the information presented assists the court in
arriving at an appropriate sentence. 84
It is an established rule of law that a convicted accused has a right to
be heard and lead evidence in mitigation. 85 In Ofetotse v The State, 86 the
Court noted that despite the absence of any statutory provision relating to
mitigation, this is a well established rule of practice in the courts of Botswana
and must always be followed. The Court noted that failure to accord the
accused an opportunity to mitigate amounts to an irregularity and the sentence
cannot stand. 87 The courts have held that to remedy, the irregularity, the
matter should be remitted to the trial court to hear evidence in mitigation and
then pass sentence. However, in order to avoid the delays that this route is
bound to create, the appellate courts have in practise, imposed sentence
themselves, after consideration of the conditions under which the offence was
committed or allowing the parties to file documents relating to mitigation. 88
In the case of Gaotlhobogwe v The State, 89 the Court noted that an
assessment of the proper sentence to be passed is as important as any other
stage of the criminal process. In this regard, to prevent or discourage a
convicted person from addressing the court or giving evidence in mitigation
will amount to a serious irregularity. Without specifically stating the duty of
84 State v Rahii [1981] B.L.R. 252.
85 Seakwa and Others v The State [1984] B.L.R. 226; Masupatsele v The State [1987] B.L.R. 96.
86 [1989] B.L.R. 314 (CA).
87 Seakwa and Others v The State op.cit note 85 supra; Ofetotse v The State op.cit. note 86 supra.
88 Seakwa and Others v The State op.cit note 85 supra; Ofetotse v The State op.cit. note 86 supra.
89 [1992] B.L.R. 286 (CA).

UNREPRESENTED ACCUSED IN BOTSWANA 103
the judicial officer to inform the accused of her right to mitigate, the Court
cited extensively from the South African case of R v Chinyani, 90 where it was
noted that the most desirable practice was to ask the defence after conviction,
whether it desires to say anything in relation to conviction. It has been
contended that section 274 of the South African Criminal Procedure Act 91
obliges the judicial officer to allow the accused an opportunity to lead
evidence and address the court in mitigation. 92
It must be noted that in Gaotlhobogwe, the accused was represented
by counsel. One must speculate that had the facts been different, the Court
would have stated the duty to call upon the accused to mitigate as it has so
often done with other procedural rights. The facts are that after conviction,
counsel instructed the accused to go into the witness box as he intended to
lead evidence in mitigation. The judge retorted that he may not go into the
box. This reaction was apparently provoked by the fact that counsel did not
seek leave of the court and further that previous convictions were not yet put
to the accused. Though counsel did not further indicate that he intended to put
the accused in the box, he proceeded to address the court in mitigation from
the bar. Also, when asked by the Court during the appeal proceedings, what
his client would have said in mitigation, counsel’s reply did not reveal
anything substantial that would have persuaded the trial court to pass a
different sentence. In fact, it was on this basis that the Court came to the
conclusion that the accused was not prejudiced.
The duty of the judicial officer in relation to the unrepresented
accused has been highlighted. The Court in Kelebile v The State, 93 noted that
the issue of mitigation is not a ritual that lacks real content. In passing
sentence, justice can only be done if the judicial officer is aware of the
personal background and personal circumstances of the accused. These issues
are important factors in weighing aggravating and mitigating factors. The
Court was of the view therefore that a judicial officer has a duty to probe the
accused so as to elicit all the factors relevant to passing sentence. The Court
stated that there are differences in the psychology and customs of people.
Difference in circumstances and conditions cover a broad spectrum of
subjective and objective considerations. Sentencing should therefore be made
within the social context of the accused’s situation. Therefore, even where the
accused states that she has nothing to say in mitigation, the court has a duty to
probe the accused.
90 1956 (1) P.H. H65.
91 Act 51 of 1977.
92 Bekker, Geldenhuys, Joubert, Swanepoel, Terblanche and Van der Merwe, op.cit. at p. 292. Section 274
reads:
“(1) A court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as
to the proper sentence to be passed.
(2) The accused may address the court on any evidence received under subsection (1), as well as on the
matter of the sentence, and thereafter the prosecution may likewise address the court.”
93 [1983] B.L.R. 92.

104 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
5.1.5 The duty to advise the unrepresented accused about
exceptional extenuating circumstances in the case of
compulsory sentences
In its bid to curb certain socially undesirable acts, Parliament has intervened to
enact minimum sentences in respect of certain offences. In this regard, statute
provides for compulsory minimum sentences which judicial officers are bound
to follow. There are a number of such legislations in Botswana. Whether the
intention of Parliament is to stamp out such crimes by deterring would-be
offenders with stiff penalties, to incapacitate offenders in respect of certain
crimes that the society considers being serious or prevalent, or to ensure that
the measure of retribution is proportionate to the crime committed is a matter
for conjecture. What is clear, however, is that the taking away of judicial
discretion in sentencing has led to obnoxious consequences wherein accused
have sometimes received severe sentences for trivial conduct, merely because
the crime they committed carry statutory minimum sentences even though the
gravity of their conduct did not deserve such sentences. Cases where judicial
officers apply mandatory sentences which are disproportionate to the conduct
of the accused usually attract public outcry. It is interesting to note that similar
sentiments have been echoed in Parliament as well, even though they are the
creators of such provisions. 94
The legislature found a solution to the problem caused by minimum
sentences, by legislating an escape clause which permits judicial officers to
circumvent statutory minimum sentences “where there are exceptional
extenuating circumstances which would render the imposition of the statutory
minimum period of imprisonment totally inappropriate ...”. 95 While it is clear
that judicial officers should consider exceptional extenuating circumstances
before imposing sentence in respect of offences carrying minimum
sentences, 96 there is no authority that the unrepresented accused should be
94 In the words of Dibotelo J (as he then was) in the case of Matomela and Another v The State [2000] 1
B.L.R. 396 at p. 399D-G, “In my view, the often resorted to practice of enacting mandatory minimum
sentences for certain types of offences constitutes a threat to the independence of the courts as envisaged
by the Constitution and the practice by the legislature of arrogating to itself the functions reserved for the
judiciary by the Constitution is clearly undesirable and should be discouraged or discontinued as it erodes
the discretionary powers of the courts in sentencing offenders. It is ironic and sad and I often observe with
detached amusement that whenever there is a public outcry arising from what the public perceives as
injustices meted out by the courts when they impose mandatory minimum sentences which have been
prescribed by the legislature, some members of the legislature also blame the courts in such situations
instead of owning up and shouldering the blame. There is a real danger in my view that the often resorted
to practice of prescribing mandatory minimum sentences may in the near future bring very unhealthy
conflict between the legislature and the judiciary.”
95 Section 2 Penal Code (Amendment) Act 39 of 2004, incorporated into the Penal Code as section 27(4).
For a consideration of what amounts to exceptional extenuating circumstances, see State v Fu and Others
[2006] 1 B.L.R. 486; Serumola v Director of Public Prosecutions [2007] 1 B.L.R. 434 (CA); Keboseke v
The State; Seleka v The State [2008] 1 B.L.R. 327 (CA); Tlhowe v The State [2008] 1 B.L.R. 356 (CA);
Seme and Another v The State [2006] 1 B.L.R. 35; State v Basutli and Another [2007] 3 B.L.R. 409; State
v Moyo [2007] 1 B.L.R. 737; Seakgatleng v The State [2006] 2 B.L.R. 301; Piet v The State [2007] 2
B.L.R. 460; State v Anis [2007] 2 B.L.R. 346.
96 State v Khumo and Another [2007] 3 B.L.R. 844.

UNREPRESENTED ACCUSED IN BOTSWANA 105
invited to address the court or lead evidence on the matter. However, there is
evidence that suggests that judicial officers may well be following the practice
of inviting accused to address them on exceptional extenuating
circumstances. 97
Perhaps, a word on extenuating circumstances is in order at this
stage. The question of extenuating circumstances usually arises in respect of
sentencing in murder cases. The Penal Code 98 provides for the death penalty
except where there are extenuating circumstances. 99 In other words, the court
should impose the death sentence for the offence of murder except it finds
extenuating circumstances. In relation to extenuating circumstances, the
accused should be permitted to lead evidence and address the court if she so
desires. However, the courts are bound to look for extenuating circumstances
from the evidence led during trial. 100 The analogy of extenuating
circumstances in respect of section 203(2) of the Penal Code offers little
assistance to the exceptional extenuating circumstances debate since accused
persons are always represented in cases of murder and defence attorney would
usually indicate that she intends to lead evidence or address the court on
extenuating circumstances. Also, it has been held that the accused has no onus
to prove extenuating circumstances, nor does the State have an onus to
disprove it. 101 What seems clear is that the court should consider extenuating
circumstances on the basis of the trial evidence, and should also permit the
defence to lead evidence or address the court on same if it so desires.
Consequently, there is no onus on the court to invite the defence to raise
extenuating circumstances.
5.2 Other possible areas
5.2.1 The duty to explain the unrepresented accused’s
rights and options at the close of the prosecution’s
case
Section 180(4) of the Criminal Procedure and Evidence Act provides that at the
close of the prosecution’s case, the court is required to ask the accused if she
intends to adduce evidence in her defence. It follows that, at the close of the
97 In State v Moyo op.cit. note 95 supra, the accused was convicted of the offence of robbery. Before
passing sentence under section 292(2) of the Penal Code which provides for a minimum prison term of 10
years, the records show that the accused was invited to address the Court on exceptional extenuating
circumstances. In passing sentence Chinhengo J noted at p. 740B-C, “I asked the accused if there were
any exceptional extenuating circumstances which would constrain or require me to impose a sentence
other than the minimum mandatory sentence and he was unable to point out to any.”
98 Cap 08:01.
99 Section 203(2) of the Penal Code.
100 Tsae v The State [2003] 2 B.L.R. 55 (CA); Losang v The State (Practice Direction) [1985] B.L.R. 281.
101 Tsae v The State op.cit. note 100 supra; Kelaletswe and Others v The State [1995] B.L.R. 100 (CA);
Ntesang v The State [1995] B.L.R. 151 (CA).

106 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
case of the prosecution, the judicial officer has a duty to explain to the accused
her rights and options, should the accused be found to have a case to answer.
This involves a whole corpus of rights relating to the conduct of the defence.
They include the right to give evidence, the right to make an unsworn
statement, the right to remain silent and the right to call witnesses. 102 These
rights and their implications should be explained in full.
The courts have exemplified the process to be followed in explaining
the rights of the accused at the close of the prosecution’s case. In Mmopi and
Another v The State, 103 the Court noted that an unrepresented accused is
under severe disadvantage and that if the judicial officer fails to explain
matters of procedure to her, injustice could easily result. The Court further
noted that the judicial officer should explain to the accused that she will be
afforded an opportunity to state her side of the case. She should point out to
the accused person what the issues were and invite her to tell her story. The
Court also held that should the accused person thereafter remain mute, the
judicial officer should carefully note on the record what she has said to the
accused person, read it over to her and invite the accused to comment on what
she has recorded. 104 The courts are unanimous in their conclusion that failure
to comply with section 180(4) is fatal to a conviction. 105
5.2.2 The duty to explain unfavourable presumptions to the
unrepresented accused
While the prosecution usually has the onus of proving its case against the
accused, Parliament sometimes legislates presumptions that relieve the State of
its onus in respect of some elements of the offence. These presumptions
normally conclude a state of affairs unfavourable to the accused, on the basis
of a basic fact, leaving it to the accused to disprove the concluded state of
affairs. Usually, the State will only have to prove a single basic element from
which the guilt of the accused may be inferred, unless she proves the contrary.
Such reverse onuses are unfavourable to the accused and places her at the risk
of conviction merely because the prosecution has proved the basic fact. 106
Several legislations in Botswana contain such provisions. However, there is a
dearth of authority on the duty of the judicial officer in relation to an accused
who is faced with an unfavourable presumption.
102 State v Molatlhegi [1997] B.L.R. 911; State v David Rantabana and Another [1981] B.L.R. 255.
103 [1986] B.L.R. 8; it was noted in Tsae v The State op.cit. note 100 supra that the court is not obliged to
advise the accused directly when she is represented as this can be left to counsel. Obviously, the court will
have to verify from counsel whether she has explained the accused’s rights and make a note of this in her
records.
104 It was also held in Tsie v The State [1999] 2 B.L.R. 305 that the judicial officer should make notes of his
advice to the accused and record the answers of the accused.
105 Mhaladi v The State [1990] B.L.R. 168; State v Molatlhegi op.cit. note 102 supra; State v David
Rantabana and Another op.cit. note 102 supra; Obonetse Ngakaemang v Regina op.cit. note 34 supra.

UNREPRESENTED ACCUSED IN BOTSWANA 107
In the case of Mosanana v The State, 107 the appellant had been
charged under the Stock Theft Act 108 on two counts of receiving stolen stock
which she either knew or had reason to believe had been stolen. The appellant
was acquitted on the substantive counts but convicted on lesser charges of
receiving stock without having reasonable cause for believing at the time of
acquisition that such stock was the property of the person from whom it was
received. The evidence showed that the appellant was given the cattle by a
debtor, in satisfaction of a debt owed by the latter to the former. At the time,
the appellant was sick and in bed, but asked one Opelo to check the cattle. As
a result of the appellant’s conversation with Opelo, she was satisfied that the
cattle belonged to the debtor. While the cattle were unbranded, Opelo testified
that other cattle of that age in Botswana are not usually branded. In reaching a
decision, the magistrate relied on section 4 of the Stock Theft Act which
provided that:
“A person who in any manner, otherwise than at a public sale,
acquires or receives into his possession from any other person stolen
stock or stolen produce without having reasonable cause, proof of
which shall be on such first-mentioned person, for believing at the
time of such acquisition or receipt that such stock or produce was
the property of the person from whom he received it or that such
person was duly authorised by the owner thereof to deal with it or
dispose of it, shall be deemed to be guilty of an offence.”
The magistrate found that the appellant did not prove that she had
reasonable cause for believing that the cattle belonged to the debtor. The
Court, on appeal, disagreed with this finding. The Court stated that the
appellant did show that she had reasonable cause for believing that the cattle
belonged to the debtor. The Court stated that the appellant did ask Opelo to
check the cattle and that the latter found nothing amiss. It was also the
evidence of Opelo that he found nothing unusual with unbranded cattle. Over
and above this, the Court stated the duty of judicial officers where an
106 For some articles on reverse onus clauses, see R.J.V. Cole, “Determining the Constitutionality of Reverse
Onus Clauses in Botswana,” 16(2) African Journal of International and Comparative Law (2008), p. 236;
A. Ashworth, “Article 6 and the Fairness of Trials,” Criminal Law Review (1999), p. 261; A. Ashworth,
“Four Threats to the Presumption of Innocence,” 123(1) South African Law Journal (2006), p. 63; A.A.S.
Zuckerman, “No Third Exception to the Woolmington Rule,” 103 Law Quarterly Review (1987), p. 170;
C.R.M. Dlamini, “Presumptions in the South African Law of Evidence III,” 65(1) Tydskrif vir
Hedendaagse Romeins-Hollandse Reg (2002), p. 147; F. Egonda-Ntende, “Presumption of Innocence and
the Reverse Onus Clause: Does the 1995 Uganda Constitution Establish A New Standard?,” 9(2) East
African Journal of Peace and Human Rights (2003), p. 194; P. Roberts, “Taking the Burden of Proof
Seriously,” Criminal Law Review (1995), p. 783; K. Govender, “Determining the Constitutionality of
Presumptions,” 8 South African Journal of Criminal Justice (1995), p. 205; C.R. Nesson, “Reasonable
Doubt and Permissive Inferences: The Value of Complexity,” 92(6) Harvard Law Review (1979), p.
1187.
107 [1985] B.L.R. 29.
108 Cap 09:01, 1973. Now replaced by the Stock Theft Act Cap 09:01, Act 21 of 1996.

108 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
unfavourable onus is placed on an accused. The Court noted that in such a
case, the judicial officer should “explain to the accused in clear terms that to
escape conviction he has to prove certain matters and he should fully explain
what these matters are. In other words, the accused should be given fair notice
of any issues not stated in or apparent from the substantive charge.” 109 In the
Court’s view, failure to inform the accused may prejudice her in the conduct
of her defence. In the circumstances, the Court felt compelled to set aside the
conviction.
The dearth of authorities in this area presents a perfect opportunity to
engage in some comparative analysis. The Namibian case of S v Kau and
Others 110 presents a crystal exemplification of the duty of the judicial officer
in bringing the purport and effect of an unfavourable presumption to the
attention of the unrepresented accused. In that case, sixteen appellants all
illiterate, were charged and convicted of the offence of wrongfully and
illegally hunting specially protected game. The legislation proscribing this
conduct provided that no person other than the lawful holder of a licence shall
hunt specially protected game. 111 On appeal, the appellants argued among
other things, that the trial magistrate erred in failing to explain the existence
and implications of the presumption created by section 85(2) of the Nature
Conservation Ordinance. 112 The section imposed an onus on the appellants
(then accused) to prove that they had a licence to hunt. The Supreme Court
held that the appellants being illiterate were not expected to know of the
provision merely by its mention on the charge sheet. The appellants, therefore,
required a proper explanation of the import of the provision. In the Court’s
view, only a lawyer or magistrate could make such an explanation. The Court
held that as the accused were unrepresented, the magistrate had a duty to
explain the provision and the shifting of the onus. Failure to explain the
presumption was held to amount to an irregularity, thereby rendering the trial
unfair. The Court proceeded to set aside the conviction.
The South African Courts have also in a number of cases ruled that
judicial officers have a duty to explain unfavourable presumptions to the
unrepresented accused. In S v Cross, 113 an accused had failed to pay his
monthly instalments in respect of a maintenance order. When once the
prosecution had proved failure to pay, an onus fell upon him to establish
109 Mosanana v The State op.cit. note 107 supra at p. 31.
110 [1993] NASC 2; 1995 NR 1. Obtained from: (last visited 1 September 2010).
Cyclostyled copy on file with the author.
111 Section 26(1) of the Nature Conservation Ordinance 4 of 1975 as amended.
112 The section provides as follows:
“Whenever any person performs an act and he would commit or have committed an offence by
performing that act if he had not been the holder of a licence, registration permit, exemption, document,
written permission or written or other authority or power (herein in this section called the necessary
authority) to perform such act, he shall, if charged with the commission of such offence, be deemed not to
have been the holder of the necessary authority, unless the contrary is proved.”
113 1971 (2) 356 (R,AD); S v Lango op.cit. note 47 supra; S v Kekwana 1978 (2) SA 172 (NKA); S v Brown
1984 (3) SA 399 (KPA); S v Khumalo 1979 (4) SA 480 (TPD).

UNREPRESENTED ACCUSED IN BOTSWANA 109
inadequate means to pay. The trial magistrate did not explain this onus to the
accused. The accused in his evidence, made a vague attempt to explain his
finances. The Court, on appeal, noted that it was clear that the accused was
unaware of the necessity of producing concrete facts and figures in order to
establish his assertion that he was unable to pay during the period in question.
The Court, therefore, laid down a rule of practice that where an unrepresented
accused is charged with the offence of failure to pay maintenance, the judicial
officer should explain the onus resting on the accused. The Court stated that
the accused should be informed that it is insufficient to make a bald statement
on oath asserting inability to pay but that all the relevant facts and figures and
documentary evidence available should be produced in order that the court
may properly adjudicate on the matter.
The Court’s rationale in Kau was that the appellants being
unrepresented, had no way of knowing about the import and effect of the
presumption if the magistrate did not explain it to them. Of significance is the
Court’s view that it is unwise to assume that the magistrate’s failure to warn
the appellants of the presumption did not result in prejudice because the
magistrate did not rely on the presumption. The Court noted that the
prosecution did not lead evidence to prove that the appellants did not have the
relevant permit and must have therefore relied on the presumption to prove the
appellants’ guilt. While the Court held that the failure to inform the appellants
of the presumption rendered the trial unfair, it also took into consideration the
fact that the trial court also failed to inform the appellants of other rights to
which they were entitled. 114 This case, therefore, reinforces the general duty
of the judicial officer to bring the attention of the accused to her procedural
rights.
Cross underscores the judicial enabling duty of the judicial officer. It
can be seen that the Court’s reasoning was based on the fact that the judicial
officer should give the unrepresented accused sufficient and detailed
information of what is required for her to put up a proper rebuttal. The
accused carries the risk of non-persuasion and it is therefore vitally important
that this is brought to her attention. It will amount to “trickery” to convict an
accused with the aid of a statutory presumption which effectively excuses the
prosecution from proving an element of an offence because that element is
proved by virtue of the presumption, while at the same time demanding that
the accused disproves the presumed facts, if the accused is unaware of the
onus or evidential burden placed on her.
114 Failure to ask the appellants to what extent they admit or deny issues raised in their plea and that they are
not obliged to answer questions; failure to advice the appellants of their right to legal representation;
failure to advise the appellants of their right to cross-examination.

110 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
5.2.3 The duty to advise the unrepresented accused of the
possible conviction of a lesser offence
There are occasions where the prosecution fails to establish the offence with
which the accused is charged because they have not established one or more
elements constituting the offence. However, it might still be possible to convict
the accused of a lesser offence on the basis of the evidence adduced. 115 For
example, a person may be convicted of an attempt to commit an offence for
which she was charged where the evidence establishes attempt but fails to
establish the substantive offence. 116 Also, a person charged with defilement
may end up with a conviction for indecent assault. 117 Where it is apparent to
the judicial officer that the accused might be convicted of a lesser offence, she
must advise the accused of this possibility.
In the case of State v Bareki 118 the Court held that on a charge of
rape, where the accused is unrepresented, he must be informed of the fact that
a conviction of defilement is a competent verdict, where it is alleged that the
victim is under the age of sixteen years. In this regard, the accused must be
given an opportunity of addressing the additional issues such as the age of the
victim. 119 The Court noted that section 10(2)(b) of the Constitution of
Botswana provides that an accused be informed of the offence for which he is
charged. In the Court’s view, therefore, a judicial officer has a duty to inform
an unrepresented accused of the possibility of conviction of an alternative
offence. Since the particulars of the offence had made no reference to the age
of the victim, the accused could not have adverted his mind to the issue of age
or its relevance.
In the case of Chalaomane v The State, 120 the appellant had been
charged with the offence of shop-breaking and theft. The only evidence
proved against the appellant was that he was in possession of goods stolen
from the shop in question. The trial court did not warn him of a possible
conviction of the offence of receiving stolen property and proceeded to
convict him of that offence. The Court noted that the trial court should have
warned the appellant of the risk of conviction on the alternative offence of
receiving stolen property as stipulated by section 194 of the Criminal
Procedure and Evidence Act. 121 The Court noted, however, that the evidence
115 Section 187 of the Criminal Procedure and Evidence Act Cap 08:02. See generally sections 187 to 197 of
the Criminal Procedure and Evidence Act.
116 Section 188 of the Criminal Procedure and Evidence Act.
117 Section 193 of the Criminal Procedure and Evidence Act; Segametsi v The State [1986] B.L.R. 441.
118 Op.cit. note 51 supra.
119 Ibid.
120 [1986] B.L.R. 261 (CA).
121 Section 194 of the Criminal Procedure and Evidence Act provides: “When a person is charged with any
offence mentioned in sections 300 to 305 of the Penal Code (relating to burglary, house-breaking and
similar offences) and the court is of the opinion that he is not guilty of that offence but that he is guilty of
any other offence mentioned in those sections or in sections 317 to 320 of the Penal Code, he may be
convicted of that other offence although he was not charged with it.”

UNREPRESENTED ACCUSED IN BOTSWANA 111
related solely and entirely to possession of stolen goods. As this was the sole
issue, the appellant had an opportunity of defending himself in relation to
possession and did so on the basis of an alibi and denial of possession. The
defence was rejected. Therefore, according to the Court, the appellant was not
prejudiced in any way. The Court held that there was no substantial
miscarriage of justice, and dismissed the appeal.
In Bareki, the Court aligned its argument with the constitutional right
of the accused to be informed of the offence with which she is charged.
According to the Court, where it is possible that an accused may be convicted
of an offence with which she was not charged, the judicial officer has a duty to
inform the accused accordingly and she must be afforded an opportunity to
defend herself on any additional issues that the situation may present. The
procedural question that arises is, at what stage the warning should be made.
Should it be made as soon as the possibility of a lesser charge is clear or
apparent. The problem here is that at the time the issue of a possible
alternative verdict registers itself, the judicial officer may not be sure whether
she would convict the accused of the substantive or lesser offence. The
question of whether the accused will be convicted of the substantive or lesser
offence would depend on what finding of fact the judicial officer will make at
the end of the day, having regard to the evidence. In other words, it would
depend on which side the judicial officer believes. Again, the possibility of an
acquittal would not be entirely ruled out. Even, and assuming that the
possibility of a conviction for a lesser offence loomed at the time the State
closed its case, the evidence of the defence might tilt the ground in favour of
an acquittal. It should be said therefore, that the judicial officer should fulfil
this duty as soon as it becomes apparent that an alternative verdict is possible.
Though Chalaomane and Bareki do not give directions as to how the court
should exercise its duty, the case of State v Sethunya 122 is of valuable
assistance. Relying on the constitutional right of the accused to be informed of
the charges against her, the Court noted that the duty arises “as soon as the
possibility of a conviction of another offence enters the mind of the trial
judge.” 123 In a master stroke, the Court set out the duty and its procedural
implications when it noted:
“The judge should remember that the accused comes to contest the
charge in the indictment. He may be put at a disadvantage by
finding during the trial that he has to meet an allegation that he
committed another offence. The accused must be protected in such
circumstances and an adjournment should be granted in exceptional
circumstances. There is no fixed time in a trial when a warning
122 [1986] B.L.R. 483.
123 Ibid at p. 485H.

112 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
should be given to the accused but obviously the sooner it is given
the better. It may well be that the alternative offence does not arise
in the judge's mind until the accused has given evidence or even
when his witnesses have given evidence, if that be the case, the trial
judge should give his warning then or anytime before he delivers his
judgment but the warning must be given before judgment is
delivered and the accused must be allowed to recall State witnesses
if he so wishes, to give further evidence and if necessary to recall or
call further witnesses.” 124
This ensures that the accused is given an opportunity to defend
herself fully, and to attend to any additional issues that the possible new
charge may present. It is founded on the constitutional requirement that an
accused should not be convicted unless she has been informed of the charges
she is facing. 125 The effect of informing the accused of the possible lesser
offence is that the trial is re-set and the accused is able to recall the witnesses
so as to cross-examine them on the basis of the new charge.
5.2.4 Analysing the trend of the case law
The cases discussed above illustrate that the courts have consistently reminded
judicial officers of the judicial enabling process. This forms part of the selfcorrection
element in the system. Courts continue to remind themselves of the
rules that bind them as well as making corrections from within. In Nieklas, the
Court of Appeal went a stage further by directing that the message be
disseminated directly to judicial officers via a checklist. This should create an
ever-present reminder to judicial officers of the judicial enabling process.
While noting that failure to advise the accused results in procedural failure, the
courts rely significantly on the prejudice clause. Effectively, this takes other
124 Ibid at p. 486A-C. In the case of State v Fihlani [1987] B.L.R.225 the Court noted at pp. 226H-227C that:
“The essential principle which emerges is that as soon as the possibility of a conviction of another offence
enters the mind of the trial judge he must always ensure that that course will involve no risk of injustice to
the accused and that he has had the opportunity of fully meeting that alternative in the course of his
defence. The judge should remember that the accused comes to contest the charge in the indictment. He
may be put at a disadvantage by finding during the trial that he has to meet an allegation that he
committed another offence. The accused must be protected in such circumstances and an adjournment
should be granted in exceptional circumstances. There is no fixed time in a trial when a warning should be
given to the accused but obviously the sooner it is given the better. It may well be that the alternative
offence does not arise in the judge's mind until the accused has given evidence or even when his witnesses
have given evidence, if that be the case, the trial judge should give his warning then or anytime before he
delivers his judgment but the warning must be given before judgment is delivered and the accused must
be allowed to recall State witnesses if he so wishes, to give further evidence and if necessary to recall or
call further witnesses.”
125 Ibid; Moeti v The State [1998] B.L.R. 55. In Dick v The State [2007] 2 B.L.R. 592, the Court noted that
although it was proper for a judicial officer to warn an accused if he was contemplating convicting him on
a substituted charge, the failure to warn him did not always result in a failure of justice. For example,
injustice would not result where the evidence led related to the accused's possession of stolen property
and his explanation or lack of explanation for such possession, had been fully contested at the trial.

UNREPRESENTED ACCUSED IN BOTSWANA 113
interests into consideration. As noted in Makwapeng v The State, if failure by
the court to advise the accused would by itself result in vitiation of the trial,
even where there is overwhelming evidence to convict, this will affect the
credibility of the judiciary. In addition, one must say that victims of crime and
the wider societal interests would not be served if those that are obviously
guilty were allowed to escape on the basis of mere technicalities.
However, the application of the prejudice rule to the failure to advise
an accused of her right to legal representation is a source of discomfiture. To
say that the conviction should stand because the evidence is overwhelming, is
to some extent, out of place in the adversarial context. The evidence may be
overwhelming because it was not subject to challenge from an expert in the art
of cross-examination. Lawyers sometimes take over cases midstream from
self-actors who would be faring badly in defending themselves due to their
lack of legal knowledge. In such cases, due to their legal skills, the lawyers
would be able to turn around the fortunes of an accused, where a conviction
had previously seemed imminent. One can therefore never conjecture what
effect legal representation could have had on the process. The crossexamination
might have been different, and the lawyer could have produced
evidence or witnesses that the accused was aware of but did not appreciate
their value and so did not present such evidence or call such witnesses to
testify. 126 There are issues that only a lawyer could unearth due to her legal
skills. 127 Therefore, the evidence against the accused may very well be
overwhelming, not because she is guilty, but because she did not have
adequate representation. In this regard, failure to advise an accused of her
right to legal representation is not a mere technical matter that can be
overlooked. Such failure by itself, should render the trial unfair except where
it is shown that the accused was aware of the right.
6. THE IMPLICATIONS OF JUDICIAL ENABLING
ON THE ADVERSARIAL PROCESS
Effectively, judicial enabling mimics the inquisitorial system to some extent.
The judicial officer is a more active participant. To some extent, it can be said
that she “investigates” the accused’s case. Clearly, for the judicial officer to be
able to assist the accused in cross-examination as suggested in Mponda,
126 In Kau v The State and Others op.cit. note 110 supra at p. 23 of the cyclostyled copy, the Namibian
Supreme Court stated that “…it cannot be said, in the absence of representation on their behalf, that all the
evidence which should have been placed before court was in fact placed before the court or that State
witnesses were properly cross-examined and tested or that the cases of each of the appellants were
properly presented.”
127 As Jansen JA noted in S v Shabancru 1976 (3) SA 555 (A) at p. 558F: “The case against the appellant on
the merits certainly appears to be formidable and to have fully justified the conviction. But, on the other
hand, it is impossible to say what effect a properly conducted defence could have had on the ultimate
result.”

114 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Sebatana and Dipholo, she would have to inquire from the accused what her
defence is and what aspects of the testimony she should like to dispute. The
same approach applies if the judicial officer were to assist the accused in
stating her defence or plea in mitigation. This, however, does not mean that the
judicial officer crosses the well over to the inquisitorial camp as proof
primarily rests with the parties. The State investigates its case and initiates
proceedings and the judicial officer merely comes to the aid of the accused to
ensure that the trial is fair. This underlying reasoning of judicial enabling and
judicial advice is clear from the cases advocating this approach. 128
Practical lessons can be learnt from judicial enabling. The two
principal procedural systems can no longer exist in purist isolation of each
other. This lends credence to the argument that the inter-marriage between the
adversarial and inquisitorial systems is an inevitable necessity. Consequently,
devout discipleship and extreme reverence to idealist models should water
down. Realistically, none of these models can remain purist and an inevitable
intermix has occurred over the years with each system borrowing from the
other. 129 Scholars have time and again debunked the stereotype of confining
procedural systems in polarised continuums. 130 As criminal justice systems
undergo the inevitable process of reform, the line of distinction between the
models becomes increasingly blurred. 131 Due to the fair trial imperative, one
can say that the judicial officer in Botswana, is not expected to maintain the
classic adversarial posture.
Judicial enabling inevitably results in a distortion in rules of
procedure and potentially, the order of proceedings. With time, what might
have previously seemed a distortion of the rules, have developed into
normative rules of their own. In 1984, the Court stated in Seakwa and Others
v The State 132 that it might be necessary to suspend the rules of procedure to
allow the unrepresented and illiterate accused to articulate herself. However,
judicial enabling has come a long way since 1984. What seemed a deviation
from the rules then, has solidified into normative significance. So while
judicial enabling is bound to affect the rules of procedure, it has attained a
128 Rabonko v The State op.cit. note 36 supra; State v Bareki op.cit. note 51 supra; State v Sethunya op.cit.
note 51 supra.
129 Thibault, Walker and Allan Lind, op.cit. at p. 388; Goldstein, op.cit. at p. 1025. While accepting that
reforms are desirable, Damaska warns that, “The transplantation of factfinding arrangements between
common law and civil law systems would give rise to serious strains in the recipient justice system. The
interaction between the contemplated transplant and the new environment must be carefully studied, and
the question must always be considered whether the recipient culture is prepared – or can be readied – to
live with the wider effects of contemplated reform.”: M. Damaska, “The Uncertain Fate of Evidentiary
Transplants: Anglo-American and Continental Experiments,” 45(4) American Journal of Comparative
Law (1997), p. 839 at 851-852; see also H.T. Edwards, “Comments on Damaska’s Of Evidentiary
Transplants,” 45(4) American Journal of Comparative Law (1997), p. 853 at 859.
130 See P.J. Schwikkard, Possibilities of Convergence (2008), Deventer, Kluwer; Thibault, Walker and Allan
Lind, op.cit. at p. 388.
131 As Hayden and Anderson comment, it seems doubtful that a pure adversarial system exists in the United
States or that pure inquisitorial systems exist in Europe. See Hayden and Anderson, at pp. 22-23.
132 Op.cit. note 85 supra.

UNREPRESENTED ACCUSED IN BOTSWANA 115
state of normative certainty.
7. CONCLUSION
It is irrefutable that judicial enabling has precipitated a metamorphosis of the
adversarial system in Botswana. One might be tempted to say that having
regard to the case law, judicial enabling gave birth to a new progeny which is
inconsistent with puritan adversarialim: “the over-speaking judicial officer”. In
this regard and accepting that the pure adversarial breed is no longer
sustainable in Botswana, the active participation of the judicial officer can now
be referred to as part of the process. Thus the unpalatable tag, “the overspeaking
judicial officer”, becomes a thing of the past. Criminal trials can now
be described as a tripartite dialogue involving the disputants and the judicial
officer. The judicial officer elicits evidence especially from the accused, with
the aim of assisting her through the process. In assisting the accused, obviously
the judicial officer will raise questions which are geared towards arriving at the
truth, a trait consistent with the inquisitorial investigative judge. Essentially,
we recognise a new strain of adversarialism or perhaps, one may say that the
line between the adversarial and inquisitorial dichotomy now suffers from a
blur. This is representative of the bridging of the cleavage between the
adversarial and inquisitorial models.
It is clear that the underlying factor for the more visible judicial
officer is the need for a fair trial. It appears politically (or “judicially
incorrect”) incorrect in modern democracies, to conduct trials without the
participation of the accused. The present judicial ideology of fair trial involves
judicial enabling which takes the form of a hand-holding process. Judicial
enabling is clearly a by-product of the fair trial imperative. This has inevitably
resulted in a welcome dilution of adversarialim at the altar of fair trial rights.

117
Competition and Regulation in the Gold Industry:
An American Perspective
ABSTRACT
J. Wilkerson*
When taken from a domestic viewpoint, the primary gold market appears to be
noncompetitive and marred by concentration. However, when seen at the
global scale, it is clear that the primary gold market is competitive and diluted.
Further, even if the primary market were noncompetitive and concentrated at
the global level, that market probably could not readily affect the price of gold.
Regardless of competitiveness, gold mines in the United States and elsewhere
are subject to environmental and safety regulations that increase the cost of
production; Regulations are stringently enforced in the United States as
compared to competitor countries, potentially creating a competitive
disadvantage for US primary producers.
1. INTRODUCTION
Gold markets have been regulated for at least five thousand years—since the
first dynastic ruler of Egypt, Menes, declared that the value of gold would be
two and a half times that of silver. 1 The market has arisen in different areas at
different times, with distinct civilizations discovering, exploiting, and coveting
gold from the days of their earliest records.
America has been no exception, and the United States has been a
major consumer of gold since its inception. The U.S. has also produced gold,
beginning in 1799 when the young son of Hessian-turned-farmer John Reed
found a seventeen-pound nugget while bow fishing on his father’s North
Carolina land. 2 This discovery led to the creation of placer associations and
mining cohorts in the Colonies – Appalachian organizations that dominated
gold production in the United States until January 1848, when California Gold
Rush started at the American River. 3
Once mining came to California in earnest, it spread throughout the
American West, from Alaska to New Mexico and Oregon to Colorado.
Wherever there were mountains and streams, there were miners and gold
pans. Solo miners and small teams did their best to gather the easy pickings
from streams and veins, but “[b]y the early twentieth century, the best highgrade
deposits of precious metals were either exhausted or being worked
Editor, Comparative Law Journal and J.D./M.P.P (Candidate), The College of William & Mary.
1 O. E. Young, Jr., The Southern Gold Rush, 1828–1836, 48 J. of South Hist. 373, 375 (1982).
2 Id. at 373.
3

118 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
out,” 4 and mining became more capital-intensive. The need for capital moved
mining away from a collection of individual miners to the formation of
companies. Luckily, this time of needed capital struck during the Second
Industrial Revolution, a period that saw the harnessing of hydraulic, electrical,
steam, and internal combustion power. These new technologies allowed
mining companies to dig deeper than ever, to dredge stream beds, to
communicate with far-flung operations, and to transport capital to mines and
ore away from them.
Consequently, technological innovation has been the key to gold
mining in the last 100 years. From cutting mountainsides with pressurized
water, to blasting tunnels with TNT, and – most importantly – to extracting
gold from hard rock through the cyanidation and active-carbonation
processes, new technologies have led to enormous startup costs and, therefore,
huge mining conglomerates looking to exploit economies of scale. The
benefits of scope economies have also arisen: since mining one mineral can
lead to discovery of another, and the equipment and know-how used to dig
one mineral can be used to dig another, mines often employ their expertise
and equipment to gather gold while mining something else – or vice versa. 5
Technological necessity has made size the watchword of modern
economically-sustainable gold mining. Enormous haul trucks, excavators,
underground facilities, open pits, and mills are getting bigger every year to
make up for decreases in ore grade. Today, a mine can stay operable even at
grades of one-hundredth of an ounce per ton of ore, but the capital costs that
allow for such operations are astronomical: up to two billion dollars per mine
for startup costs alone. 6 It is true that entry into the gold primary market is
relatively easy if a high-grade deposit can be extracted with minimal effort
(e.g, artisanal sluice mining in Alaska), but such deposits are increasingly
scarce and often run dry after a short extraction period. In other words, these
deposits are too small, too easily depleted, and too scattered to support longterm,
large-scale operations. 7 Indeed, the average ore grade of large
operations is 3 grams per ton, which leads to a cost per ounce of gold of
between $300 and $400 at well-capitalized firms. Experts agree that as time
marches on, ore grade will generally decrease and cost of production will
increase on an exponential curve. 8 Indeed, there is a very high long-run
4 M. Malone, The Collapse of Western Metal Mining: An Historical Epitaph 55 Pacific Hist. Rev. 455, 458
(1986).
5 The Bingham Canyon Mine in Utah, for example, is a Kennecott Copper mine that supplements its copper
production by finding gold in the process. As shown in Table 1, Kennecott copper is one of the top four
gold producers in the United States, due almost entirely to its Bingham Canyon Mine, which produces
12,300 kg of gold per year (the seventh largest gold-producing mine in the U.S.).
6 J.H. Morris, Going for the Gold: The History of Newmont Mining Corporation (Univ. of Al. Press 2010).
7 Datamonitor, Ref. Code 0199-2063, Industry Profile: Global Gold 14 (2010).
8 J. Muller & H.E. Frimmel, Numerical Analysis of Historic Gold Production Cycles and Implications for
Future Sub-Cycles, 4 Open Geology J. 30–31 (2010).

COMPETITION AND REGULATION IN THE GOLD INDUSTRY 119
minimum efficient scale at modern mines that is going to get higher. 9 This will
force small firms to either bow out as soon as their high-grade ore is gone, or
accept a takeover bid by a better-capitalized firm.
2. PRODUCT MARKET IS BOTH DOMESTIC AND
GLOBAL
The relevant product in this analysis is primary gold, meaning gold extracted
from the ground in order to be sold. This is in contrast with secondary gold,
which is produced by recycling scrap – a method that took hold in the mid-
1960s and has resulted in secondary production rivaling the size of primary
output. 10 Although my concentration is on the primary market, the secondary
market produces a significant amount of world supply (or, more appropriately,
its re-supply). The gold produced in the secondary market is indistinguishable
from that produced in the primary market. Thus, I cannot altogether ignore the
secondary market – or gold sold on the market by central banks and others – in
the following discussion. Most gold mining companies are not involved in the
refining processes directly. Instead, gold mines take the refining process to
about 80–90% purity on-site, forming the gold into doré bars and sending them
to external refineries that take the bars to 99.6–99.99% pure bullion. 11 In
addition to this break in vertical integration, I assume that gold mining
companies are not involved in recycling.
Geographically, the market has both domestic and global aspects.
Although gold is bought and sold globally, making concentration and
competition analyses tempting from the world-level, its production is
intimately connected to countries’ land. Thus, individual countries have a
stake in how their gold is mined and how mining affects their economy. From
a regulatory standpoint, many statutes (such as the General Mining Act of
1872) and the common law are generally applicable to all gold mining
9 It must be noted that large mining corporations appear to be waiting to enter some countries for political
and governmental-efficiency reasons rather than ore grade. These countries’ rich resources are currently
exploited by small-scale firms. China is the poster-child of such countries, in which one state-supported
producer mines about 20% of all reserves, while innumerable small firms make up the difference. See
generally, L. Tole & G. Koop, Do Environmental Regulations Affect the Location Decisions of
Multinational Gold Mining Firms? (12 August, 2008) (unpublished manuscript on file with the
University of Strathclyde).
10 United States Geological Survey, 2007 Minerals Yearbook: Gold 31.9 (2008).
11 J. Marsden & I. House, The Chemistry of Gold Extraction 449 (2 nd Ed., Society for Mining Metallurgy &
Exploration 2006). There is a good possibility that gold mines will begin vertical integration with
dedicated refineries (“i.e.”, refineries that take the gold to maximum purity), especially as gold in
circulation (and therefore available for recycling) increases and the gold in the ground decreases. A move
on the large scale would lead to more of a possibility that firms could exercise market power. One South
African gold mining company, Harmony, has already integrated, and takes its gold from ore to 99.99%
purity on its own. See R. Short & B. Radebe, Gold in South Africa (2008), available at http://
www.goldinsouthafrica.co.za.It must also be noted that at least some dedicated refineries are owned by a
conglomerate of nearby gold mines. Id.

120 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
operations in the U.S. 12 Thus, since both perspectives can be valuable in
creating policy that affects primary production, I examine both the United
States and global mining industries.
3. THE DOMESTIC PRIMARY MARKET APPEARS
HIGHLY CONCENTRATED
Technology, capital, and large firms seem necessary to keep up with demand.
Since gold is sold on a global market both as an investment and as an input,
each gold-producing country (unless centrally-planned) is both an exporter and
an importer of gold. The United States was, from 1900 to the early 1960s,
generally a net importer of gold. Since then, the U.S. has been, almost without
exception, a net exporter. 13 In 1971, Richard Nixon deregulated the gold
market by removing the United States from the gold standard. This move led
to an immediate jump in prices, which further led, in the 1980s, to a production
level more than four times that of 1971. United States production continued to
grow throughout the 1980s and 1990s, peaking at 366 metric tons in 1998 and
then tapering off as prices began falling. Production has steadily fallen since
2001 despite rising prices, and in 2008 the United States primary producers
generated only 233 tons of gold. Notably, the 2008 price of gold was the
highest it had been since 1987, but the American production level was the
lowest it had been since 1988. 14
Today, gold is produced at only about fifty-five mines in the United
States, with 78% of all gold production coming from the state of Nevada. 15
Thirteen gold producers owning thirty mines make up over 99% of total U.S.
gold production (see Table 1). Among these producers, Barrick Gold
Corporation has the largest market share, at 37.8%, followed by Newmont
Mining Corporation, at 29.5%. As shown in Table 1, the market is highly
concentrated, with an HHI of 2521.06 and the top four firms holding more
than 85% of the market. Barrick and Newmont have for years been major
players in American gold mining (although they were accompanied by other
similar-sized firms until the early 2000s) 16 and show no signs of slowing.
12 It should be pointed out, however, that U.S. courts are not shy about finding jurisdiction over companies
that affect American interests – even when the case has more effects in foreign jurisdictions. See
Consolidated Gold Fields PLC v Anglo American Corp., 698 F. Supp 487 (S.D.N.Y. 1988) aff’d in part,
rev’d in part, sub nom. Consolidated Gold Fields PLC v Minorco, S.A., 871 F.2d 252 (1989) (finding
personal and subject matter jurisdiction over Luxembourg (Minorco) corporation and its hostile takeover
bid for a British (Consolidated Gold Fields – plaintiff) corporation, because the merger would have
created a 32% market share for the new company and because the new company would have minority
control over some American mines).
13 United States Geological Survey, Gold Statistics (2009), available at http://minerals.usgs.gov/ds/2005/
140/gold.pdf.
14 Id.
15 United States Geological Survey, supra note 10, at 31.1
16 M. Callahan, To Hedge or Not to Hedge ... That Is the Question: Empirical Evidence from the North
American Gold Mining Industry 1996-2000, 11 Financial Markets, Institutions and Instruments 271
(2002).

COMPETITION AND REGULATION IN THE GOLD INDUSTRY 121
Indeed, it could be argued that the primary gold market in the United States is
likely subject to collusion among the top producers: Barrick and Newmont
would have a majority market share if taken together. However, this argument
would overlook the global market in which these companies play. Prices are
set at a global scale; thus, while it is true that the top producers could leverage
market power if they were only competing domestically, I now turn to the
competitive landscape at the global level to see this seemingly bleak picture in
a larger context.
Company
Gold Production
(kg)
% Mkt Share (% Mkt Share)
Barrick 90611 37.8 1428.84
Newmont 70788 29.5 870.25
Kinross 28800 12 144
Kennecott 15372 6.4 40.96
Creek 8770 3.7 13.69
Teck 8080 3.4 11.56
Goldcorp 4380 1.8 3.24
Yukon 3790 1.6 2.56
Quadra 3360 1.4 1.96
Wharf 1800 1 1
Coeur d’Alene 1570 1 1
Jipangu 1360 1 1
Apollo 1040 1 1
239.721 HHI: 2521.06
4. GLOBAL SUPPLY AND DEMAND FOR
GOLDPREVENT PRIMARY PRODUCERS FROM
EXERCISING PRICING POWER
The global market is much less concentrated than the domestic scene. The
global primary gold market produced 2,380,000 kilograms of gold in 2007 (a
number that stayed relatively constant through 2009), meaning that United

122 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
States gold production consisted of only 10% of the global market. 17 On a
global level, Barrick is the largest producer with a 10.2% market share –
meaning that Barrick alone produces as much as all U.S. mines combined – but
its market share is far from overbearing. Newmont is the second-largest
producer, at 8.9%. 18 AngloGold Ashanti and Gold Fields follow, at 6.0% and
4.7%, respectively. In other words, at the global level, the four-firm
concentration ratio is only 29.8% – hardly a number that should raise
regulatory red flags. Thus, given that American gold production is merely a
facet in the larger market – within which every producer in the world competes
– the fact that domestic gold production is focused in the hands of a few is
meaningless from a price-fixing standpoint; the closest to market power that
domestic firms could come, would be to hold vast deposits and mine them only
when prices are high.
There have been recent murmurings of a Barrick-Newmont merger,
and most industry commentators predict that the two will enjoy “operational
synergies” – if not merger itself – within the next few years. 19 Barrick, a
Toronto-based company, has 26 operations scattered among the U.S.,
Australia, Canada, Peru, Chile, Argentina, and Tanzania. 20 Newmont, a
Denver-based company, has gold operations in the U.S., Australia, Canada,
Peru, Indonesia, Ghana, New Zealand, and Mexico. Thus, in the U.S.,
Australia, Canada, and Peru, these two companies could share resources and
operations and possibly benefit from a merger. The merger of these two
industry leaders could—if the agreement were to leave all mines operational –
lead to a single firm with almost 20% market share. Such a merger of the
industry’s top two firms might look suspect at first glance, but would not
likely have an appreciable effect on the market because the price and quantity
of gold on the global market is out of all primary producers’ hands – not just
Barrick’s and Newmont’s. Indeed, the inability of primary producers to affect
price, and their hedging against price fluctuations, is well-documented. 21
A. Beyond Primary Production
Supply to the global market comes from primary producers, secondary
producers, central banks, and anyone else who has gold and wants to sell it. The
price of gold is fixed twice daily by the London Bullion Exchange, 22 and this
price is used as the benchmark for transactions in gold and gold derivatives all
17 Datamonitor, supra note 7, at 10.
18 Id. at 12.
19 See, “e.g.”, D. Kasich, Newmont, Barrick Contemplate Operational Synergies, not Merger,
MINEWEB.COM, http://www.mineweb.com/mineweb/view/mineweb/en/page34?oid=80653&sn=Detail.
20 DATAMONITOR, supra note 7, at 20.
21 See, “e.g”, M. Callahan, supra note 16 (detailing the hedging practices, such as long-term contracts, of
primary producers in North America).
22 See the London Gold Fix home page, http://www.goldfixing.com/home.htm.

COMPETITION AND REGULATION IN THE GOLD INDUSTRY 123
around the world. If primary producers such as Barrick and Newmont were the
only players in the market, their joint action could affect the price fixed by the
Exchange. However, secondary producers add millions of kilograms of gold to
the market every year (over 1.2 million in 2008 and increasing at a rate of more
than 25% per year). 23 In other words, the size of primary producers would
probably have to be unforeseeably enormous (or they would have to organize
a widespread cartel) before they could begin controlling prices on the global
market.
Central banks, such as the United States Federal Reserve (of which
most is held at the New York Branch), hold approximately 19% of all of the
gold ever mined, or 31,350,000 kg. They primarily use these reserves to
guarantee their currency, but countries buy and sell gold for various reasons –
transactions that are controlled by international quantity agreements. A recent
accusation against central banks is that they are using such firms as HSBC,
Goldman Sachs, JP Morgan Chase, and Deutsche Bank to manipulate gold
prices in order to make their currencies look more favorable. 24 Whatever their
reasons for the purchase and sale of gold, central banks – especially those of
the United States (8,133,500 kg), Germany (3,407,600 kg), Italy (2,451,800
kg), and France (2,435,400 kg) 25 – in conjunction with the huge and growing
secondary market, pull market power away from primary producers. Indeed,
annual global primary gold production is less than one-third the size of
America’s gold reserve alone; additionally, secondary production is growing
and, in the U.S., is only 10% smaller than primary production. 26 Most
importantly, since gold is priced daily by an external authority, anyone
attempting to raise prices can be instantaneously detected and flushed by
others dumping more on the market as prices rise. Consequently, primary gold
producers do not currently have the ability to appreciably affect the price of
gold on the global market, even though they collectively supply about 50% of
the gold.
Supply will continue to increase as long as mining companies are
able to cost-effectively detect it and remove it from the earth, but the market
will probably remain relatively stable for at least the next few years as gold
companies plan for expansion. 27 There are no good estimates of the amount of
gold left in the earth, because finding new deposits requires a great deal of
time and mines generally seek known reserves for only five to ten-year
production increments.However, there are approximately 128,000,000 kg of
23 Gold Fields Mineral Survey, 2009 Annual Gold Survey: Overview 2 (2009).
24 See, “e.g.”, J. Turk, A Short History of the Gold Cartel, GATA.org, http://www.gata.org/node/7402; M.
Gray, Metals Are in the Pits: Trader Blows Whistle on Gold & Silver Price Manipulation, New York
Post, 11 April, 2010, available at http://www.nypost.com/p/news/business/metal_are_in_
the_pits_2arTlGNbMK7mb1uJeVHb0O.
25 World Gold Council, World Official Gold Holdings (2010), available at http://www.gold.org/
deliver.php? file=/value/stats/statistics/archive/pdf/World_Official_Gold_Holdings_Mar_2010.pdf.
26 United States Geological Survey, 2010 Mineral Commodity Summaries: Gold 66 (2010).
27 United States Geological Survey, supra note 10, at 31.7.

124 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
known gold deposits, which representa miniscule of the gold in the top four
kilometers of the earth’s crust (the currently-mined range). 28 Thus, it is safe to
assume that, as long as economic profits do not fall below zero due to
increased extraction costs, gold mines will be producing for centuries to come.
Demand for gold is fueled by end-markets, including jewelry
manufacturing (68% of demand); electronics, medical, and other industries
(14%); and institutional investing (19%). 29 Given that gold has so many
favorable elemental properties, such as its malleability, ductility, noncorrosiveness,
reflectivity, and conductibility, there are no good substitutes
for it in many applications. Gold has become a necessity in the high-tech
industries. In jewelry manufacturing, gold has for millennia been the metal of
choice, even in the face of substitutes such as platinum, silver, zinc, and
copper. As an investment, gold is strong and growing stronger, with
recession-afflicted investors looking to grow their savings by planting them in
nonperishable metals. Overall, demand is not very elastic but varies by
application, with areas such as dentistry seeing more elasticity due to recent
viable substitutes. 30 Given that overall demand for gold is relatively inelastic
and that gold is increasingly used as a financial investment by governments
and individuals alike, demand is not likely to decrease anytime soon. Further,
in our technological age that increasingly requires gold for the production of
electronics for the private sector, the military, and personal consumption, it is
likely that demand for gold will rise as time goes by.
5. REGULATIONS IN THE UNITED STATES
Countries are concerned with more than the competitiveness of the global
market when they impede mergers or break up mining conglomerates. They are
concerned with the gold in their own soil, and the possibility that a single firm
or cartel will acquire rights to all of that gold and then mine it – or fail to mine
it while waiting for higher prices – in a manner that hurts the national economy
or kills jobs. It is conceivable, therefore, that nations look not to the global
market but rather to domestic concerns when deciding how to regulate primary
producers. Such motivations arguably led to the Second Circuit’s antitrust
decision in Consolidated Gold Fields v Minorco. 31
28 H. E. Frimmel, Earth’s Continental Crustal Gold Endowment, 267 Earth and Planetary Science Letters
45, 48 (2008).
29 Datamonitor, supra note 7, at 13.
30 Id. at 14-15.
31 J. B. Berman, Consolidated Gold Fields, PLC v Minorco, S.A.: The Growing Over-Extension of United
States Antitrust Law 6 Am. U. J. Int’l L. & Pol’y 399 (1991).

COMPETITION AND REGULATION IN THE GOLD INDUSTRY 125
A. Antitrust
No discussion of market concentration and competitiveness in the American
primary gold industry could be complete without a hard look at Consolidated
Gold Fields. 32 In that antitrust case involving the potential joining of the
world’s two largest firms, the relevant industry was determined to be primary
producers only – and only those primary producers in the non-Communist
world – even though the court recognized that 1) gold was a fungible product
that was traded between Communist and non-Communist areas and 2) gold
was being recycled and resupplied by the secondary market. The court held
that, since Minorco (a member of the once-powerful Oppenheimer-controlled
gold mines) would have a 32.3% market share in the narrowly-defined market
if it were allowed to join with Consolidated, the hostile takeover bid violated
the Clayton Act and had to be enjoined until the merits of the case could again
be heard. On remand, the injunction stood. 33 Consolidated Gold Fields proves
that determining the relevant market for gold mining antitrust cases is of
paramount importance, and that courts might take a narrow view of that market
to protect domestic interests by finding mergers or takeovers illegal. However,
since Consolidated Gold Fields, no U.S. court has found a violation of the
Sherman or Clayton Acts in the gold mining industry. This is unsurprising for
three reasons: first, the Soviet bloc collapsed, expanding the market; second,
the market definition began including secondary producers and other sellers,
such as central banks; finally, no gold conglomerate since Oppenheimer has
come close to such a large share of the global market.
B. Environmental Regulation
Consolidated Gold Fields is the only American gold mining antitrust case in
the last 20 years, 34 and mines are not subject to direct economic regulation.
Thus, the bulk of regulatory issues facing mining companies are environmental
and safety concerns. Of the two, environmental regulations – imposed both by
the federal government and by states – have by far the greatest impact on
32 Supra note 12.
33 Consolidated Gold Fields, PLC v Anglo American Corp. of South Africa Ltd., 713 F.Supp. 1457
(S.D.N.Y. 1989).
34 Although the United States has not been much concerned with anti-competitiveness issues in gold mining,
other countries have. For example, South Africa blocked a merger in 2000 and has been stalling another
since 2009. See SA Government Stops Gold Merger, Mining Journal, 22 September, 2000; M. Creamer,
South African Government Softens Stance on Zstrata-Anglo Merger, Requests Detail,
MiningWeekly.com, 13 July, 2009. The South African government was concerned in these cases that
intra-country competition and job creation would be stifled. This argument is based on the possibility that
a single company or cartel can gain control of all of the gold resources in a nation in order to decrease
production and raise prices. We have already seen that raising prices would be impossible – even for the
gold-rich nation of South Africa – and therefore the mines would have little incentive to decrease
production. The worst that could happen to South African workers would probably be the increase of
capital efficiency through a merger, meaning less of a reliance on labor and, therefore, layoffs.

126 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
American mines, especially in light of the comparative cost advantage that U.S.
regulation gives to mining operations in less-regulated countries. 35
Environmental regulations can be strong enough to force gold companies to
avoid exploration in certain areas, to delay operational startup, or even to go
bankrupt. However, mining companies tend to establish operations in those
countries that have the most stable and smoothly functioning governments –
which also tend to be those countries with somewhat strict environmental
laws. 36 The tradeoff between effective government-business relations and
exacting environmental laws seems to weigh in favor of government-business
relations. Thus, major players in the mining industry are subject to
environmental regulation almost everywhere they go.
In the U.S., whenever a mining company (or anyone else who wants
to mine) finds gold on federal lands through exploration, it can apply for a
mineral patent with the Secretary of the Interior. 37 If on Bureau of Land
Management-managed land (as opposed to National Park Service, Fish and
Wildlife Service, or Forest Service-managed land, where processes are more
stringent), the process of obtaining a patent is quite simple: after receiving the
application, the BLM determines whether gold can be cost-effectively
extracted from the land. If it can, then the mine pays a nominal fee for the
property rights, and the BLM approves the patent, which the Secretary then
reviews and either issues or contests for failing to meet statutory
requirements. 38
Once a firm has control of the land, it can begin mining operations –
but not before it clears environmental hurdles. 39 The most important
environmental laws in this arena are the Clean Air Act, the Resource
Conservation and Recovery Act, the Clean Water Act, and the Comprehensive
35 Environmental regulations in many other gold-rich countries, such as Peru, Indonesia, and South Africa,
are not as stringent or as strictly enforced as those in the United States. Thus, environmental regulations –
just like America’s necessarily higher wages and benefits – put mines in the U.S. at a comparative
disadvantage to operations in many other countries. See,”e.g” A. Kumah, Sustainability and gold mining
in the developing world 14 J. of Cleaner Production 315 (2005); J. L. Sznopek & T. G. Goonan, U.S.
Geological Survey Circular 1197, The Materials Flow of Mercury in the Economies of the United States
and the World (2000); J. S. Ogola, et al., Impact of Gold mining on the Environment and Human Health:
A Case Study in the Migori Gold Belt, Kenya 24 Environmental Geochemistry and Health 141 (2002).
36 Tole & Koop, supra note 9.
37 Most of this section flows from provisions found in the Mining Law of 1872, 30 USC §§22-42 (2006).
This law was passed during a time of little environmental foresight and incentivized expansion in the
West.
38 Mining Law – Approval of a Patent – A Command Performance 30 LAND & WATER L. REV. 109 (1995).
For example, in 1994, Barrick obtained 1800 acres of land in northern Nevada from the BLM at the price
of $5 per acre (a total of $9,000). There were an estimated 30,000,000 ounces of readily-extractable gold
at the site – a value of $30 billion. Secretary of the Interior Babbitt, deploring Barrick’s ability to get
astronomically valuable land for a pittance, attempted to halt the patent but lost in court because Barrick
had fulfilled all statutory requirements of the 1872 Mining Law and its amendments.
39 The National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (2006), requires that the federal
agencies study a project’s probable environmental impacts before giving the approval necessary for the
project to begin. The agencies issue Environmental Impact Statements before making permitting
decisions if the proposed activity will “significantly affect the quality of the human environment.” 42
U.S.C.A. § 4332(2) (C).

COMPETITION AND REGULATION IN THE GOLD INDUSTRY 127
Environmental Response, Compensation, and Liability Act. 40 Under these and
other laws, the mine is required to obtain permits for air quality, water quality,
underground injection, water supply systems, solid and hazardous waste,
wildlife and vegetation protection, surface disturbance, reclamation permits
and bonding, use of toxic chemicals, exploration on Indian lands, and dredge
discharge. 41 After receiving the required permits, the mine then must both
comply with them and issue regular updates on contamination levels, surface
disturbances, water discharge quality, etc. The Environmental Protection
Agency and Department of Justice (or states, which also issue environmental
regulations) 42 can use administrative, civil, and criminal sanctions to stiffly
penalize a company that does not comply with its permits.
The EPA and DOJ have been stepping up environmental
enforcement for the past decade, and mining companies consequently focus
enormous resources on compliance – resources that add to the cost per ounce
of production. 43 However, these resources are – if the enforcement actions are
large enough to eviscerate economic benefits of noncompliance – less than
what the companies would pay if caught violating the law. Whether the
enforcement actions are large enough to remove economic benefits of
noncompliance is unclear, but it is very clear that mines are in many instances
not required to pay the full monetary effect of their actions; the EPA often
strikes a deal with companies rather than driving them into bankruptcy. 44
C. Safety Regulations
In addition to environmental regulation, the Federal Mine Safety and Health
Act of 1977 45 imposes regulations handed down by the Department of Labor’s
Mine Safety and Health Administration (MSHA). This agency issues
regulations on everything from personal protective devices to fire suppression
systems, from airborne silica dust to sound levels, and mines are subject to
40 5 R. T. Connery, et al, American Law of Mining §165.03 (2d. Ed. 2008).
41 Id. at §166.1. For a lucid discussion of hard rock bonding practices, see K. Wernstedt & R. Hersch,
Abandoned Hardrock Mines in the United States: Escape from a Regulatory Impasse? 1 WM. & MARY
POL’Y REV. 1 (forthcoming 2010).
42 Many states, such as Nevada and Colorado, enact broad-based, comprehensive environmental regulations
that apply to mines on all private and public lands. Thus, mining companies cannot escape environmental
regulations just because they purchase their property from a private landowner.
43 Id. at §165.03.
44 See Wernstedt & Hersch, supra note 42, at 9. It is difficult to tell whether this relationship is marked by
capture or by normative concerns, but companies’ long-term viability probably plays a role. A famous
EPA/mine case is ASARCO, which closed down many of its regional plants after receiving enormous
fines, but it usually found a way to strike a deal with the EPA so as to stay solvent. For example, in 2003
ASARCO and the EPA set up a joint, $100 million trust fund to clean up all of ASARCO’s past misdeeds
at Superfund sites, even though the task was valued much higher. It wasn’t until 2009, in a Chapter 11
settlement, that the EPA stopped playing pat-a-cake with ASARCO and demanded $1.79 billion to clean
up the company’s mess.
45 30 USC §§ 801 et seq. (2006).

128 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
unannounced inspections. MSHA can impose large fines and can even halt
operation of a mine if safety concerns are not adequately met. Like
environmental regulations, safety regulations are more stringently enforced in
the U.S. than in many other gold-producing countries, creating a comparative
advantage for those countries.
6. COMPETITIVENESS
The gold mining industry is both rivalrous at the large scale and subject to easy
entry at the small scale. Large multinational conglomerates are constantly
jockeying for control of the most underground deposits. They also fight to
lower their costs per ounce and therefore increase their profits, something that
is done both by improving technology and operational efficiency as well as by
discovering or taking over rich ore deposits.
At the small scale, anyone who wants to stake a claim can do so,
assuming the Department of the Interior is convinced that the applicant can
extract gold at a profit; further, everyone who extracts gold from the ground
can sell it at the same daily-fixed price as large firms, although large firms
often hedge. From this perspective, the market is subject to infinite
competition. 46 However, large conglomerates are hardly worried about tiny
startups; they are reasonably confident that they are already sitting on the most
lucrative ore deposits in the free world, and are equally confident that they can
buy the smaller operations if need be. Practically, even a small modern mining
operation will require permitting, extraction, electricity, transportation, labor,
milling/leaching, legal, and communications costs – unless the operation is a
tiny artisanal outfit. Even shutting down a mine is costly, given the costs of
environmental cleanup and reclamation, long-term labor agreements, and
dismantling/transporting mills and other capital. However, since gold is
fungible, any production – even at artisanal outfits – competes with largescale
production.
Even given free entry and a fungible product, “rivalry” is probably a
better term than “competition” to describe the interaction among the world’s
top mining companies. 47 Each company is trying to expand, which means that
they must either find previously unknown ore deposits or take over other
companies’ deposits. In order to get into a position to swallow smaller fish,
gold companies scramble to expand their in-ground reserves and make their
operations more efficient. However, much of this rivalry is dispersed due to
many large companies’ expansion into other minerals. For instance, Newmont
Gold, like Kennecott, has recently begun mining copper. This diversification
(along with the likely attendant economies of scope) lessens the degree to
46 Datamonitor, supra note 7, at 13–15.
47 Datamonitor, supra note 7, at 15.

COMPETITION AND REGULATION IN THE GOLD INDUSTRY 129
which existing companies can compare balance sheets and makes merger or
takeover more complicated.
Overall, gold mines produce a single, indistinguishable good, cannot
affect the price of that good, and are subject to the relatively easy entry of
competitors. Thus, the industry is, at the small scale at least, competitive.
7. CONCLUSION
The gold mining industry is dominated by relatively few large players with
global market shares of at least 1%. However, only one mining company,
Barrick, has a market share over 10%. Even if the global market were more
concentrated, gold mining companies would not likely be able to control the
global gold prices. Further, although entry is relatively free, long-run minimum
efficient scale is high enough to allow in only well-capitalized firms, while
small firms either quit or sell out. Large firms deal with each other as rivals,
with each attempting to control the most and best-concentrated ore deposits,
but even this rivalry is being diffused as companies expand into other mineral
markets. Finally, the impact of regulations – including the impact of
comparative cost disadvantages for U.S. mines – comes mainly from
environmental and safety strictures, but countries may have an idiosyncratic
incentives to protect domestic interests through antitrust.

Procurement law in Nigeria: Challenge for attainment of its
objectives
ABSTRACT
O. A. Jacob*
131
On the 4th of June 2007, the then President of Nigeria, Alhaji Umaru Musa
Yar’Adua signed into law the Public Procurement Act (PPA) which is the first
Nigeria procurement law in the.
The purpose of the Act is to ensure transparency, competitiveness, value for
money and professionalism in the public sector procurement system. Many
believed that the new law would curb corruption and abuse of power in the
award and execution of contracts a tool in the hands of government
functionaries and politicians to loot the public treasury. This article examines
the objectives, coverage, and compliance strategy and efficacy effectiveness of
the new law. The author concludes that full implementation of the law remains
an elusive objective despite a measure of impact. He identifies the factors
contributing to the partial implementation of the Act are examined and makes
remedial recommendations.
1. INTRODUCTION
Nigeria gained independence from the British Government in 1960. Between
1960 and 2007, she has passed through Military and Civilian governments. The
military governments rule with decrees while the civilian governments govern
by the constitution and the laws made by the legislature. Both [military or
civilian governments] engage in business transaction of which the greater part
is the award of contracts. Before 2007, there was no statutory provision that
directly regulate the award of public contracts in Nigeria and the result is that
the award of contract becomes an avenue by which the government
functionaries reward their friends and cronies and by which they too amass
wealth. Most of the rich business men that we have in Nigeria today make their
money through contracts that are awarded to them in the past by the
governments, whether military or civilian government it is the same.
Disgusted by the depth of corruption in the procurement system and
its effects on the economy, the Federal Government commissioned the World
Bank in 1999 in collaboration with some Private Sector Specialists to review
the country’s public sector procurement structure, including the existing legal
LL.B [Unilag Nigeria] BL, LL.M [Oau Nigeria] MA [U. I Nigeria], LL.M [Pretoria South Africa], CILS
[American University Washington DC USA] Lecturer Faculty of law University of Ibadan. Presently, a
visiting scholar, University of Wisconsin Madison USA. E-mails: Permanent osunfolak@yahoo.com
temporary: aosuntogun@wisc.edu

132 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
framework, organizational responsibilities and capabilities, and present
procedures and practices, including how these may differ from the formal rules
and procedures. The World Bank report was damning, it notes that: 1
“About 50% of projects in Nigeria are dead even before they
commence ... the projects are designed to fail because the objective
is not to implement them, but to use them as vehicles for looting of
the public treasury ... Instead of adding value, they become
economic drain pipes.”
It was rightly observed that the government functionaries were involved in the
awards of public contracts and a new legal regime that will eschew that
abnormality was advocated by the report:
“Members of the Federal Tender Board are Ministers who due to
their political role shall not and cannot be expected to deal with
details in procurement procedures. It is therefore considered that the
Federal Tender Board does not add value to the procurement
process. High level politicians such as Governors, Ministers and
Commissioners should use their valuable time for major policy and
strategic issues rather than approving contract awards. Elected
officials are responsible for allocation of resources but the
mechanics of spending these resources should follow laid down
procurement regulations and procedures.” 2
Rather than enacting a statutory legislation to regulate public contracts, the
government took a step to check the abuse in the system by establishing the
Budget Monitoring and Price Intelligence Unit (BMPIU) in the Presidency
with an objective among others to ensure that merit and due diligence are
adhered to in the award and execution of contracts, procurement of products
and services. 3
However on the 4th of June 2007, the then president of Nigeria
President Umaru Musa Yar’Adua signed into law the Public Procurement Act
(PPA) which is the first procurement law in the history of Nigeria. The
purpose of the Act is to ensure transparency, competitiveness, value for
money and professionalism in the public sector procurement system. 4 The Act
1 See Nigeria: Country Procurement Assessment Report Volume 1 and 2 - http://www-wds.worldbank.org/
external/default/WDSContentServer/WDSP/IB/2001/06/08/000094946_01053004 [site visited on 2
September, 2010].
2 Id.
3 The Budget Monitoring and Price Intelligence Unit (BMPIU) serves as a “vanguard of ensuring fiscal
transparency, strict compliance with Federal Government guidelines on Due Process Certification as it
concerns budgeting for and procurement of facilities/services/contracts at appropriate costs(Ezekwesili,
2005.
4 Section 4[1] of the Act.

PROCUREMENT LAW IN NIGERIA 133
provides for the establishment of the National Council on Public Procurement
(NCPP) and the Bureau of Public Procurement (BPP) as regulatory authorities
responsible for oversight, management and monitoring of public procurement
practices and system. Though the new legal regime takes effect immediately
as it should, we observe lack of total commitment on the path of the federal
government to fully comply with the regulations enshrined in the Act. The
problem lies with the issue of government involvement, whether they
[government functionaries] should disengage from procurement process or
not is an underlying question the government is not comfortable with. The
argument of the government functionaries is that they must be involved in the
procurement process in order to safeguard public resources 5 but the report of
the World Bank nullified this argument:
“Politicians in Nigeria would argue that it is their responsibility to
safeguard public resources by ensuring that corruption is minimised
in the procurement process. However, what is most critical is to
build legitimacy in the procurement process through appropriate
legislation and regulations and not direct involvement in the
procurement process. This legitimacy is very important for both
civil servants and the politicians because they, in the end, need to be
able to work in a system where the public has faith in what is going
on and where they can account for their dispositions.”
As of today, the greatest challenge for the enforcement of
procurement law in Nigeria is the involvement of the government
functionaries in the procurement process and this is possible because the
government has not fully implemented the provisions of the Act. Should the
government who initiated the enactment of the Act fail to fully implement it?
That lackadaisical move on the part of the government is worrisome but not
unpredictable. A clue to the reason behind their conduct could be deduced
from the history of the PPA itself. It takes the government almost seven years
to enact this law.
This writer finds out that partial implementation or dragging of feet
in enacting the law is actuated by the desire of the political class in the
government not to lose the means to award contracts to their cronies. This
article discusses the challenge for the attainment of the lofty objectives of the
PPA. It observes with chagrin that three years since the Act has taken effect,
the Federal Government has not fully implemented it. The implications of that
partial implementation of the Act are examined and recommendations offered.
This article is divided in to eight parts. The first part is an
introduction while the second part examines the statutory objectives of the
5 See World Bank report volume 2 page 39 supra note1.

134 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Act. In part three, the mechanism for attainment of its statutory objectives is
examined and the scope of the application of the Act is dealt with in the next
part. The impact and the amendment of the Act are briefly discussed in the
subsequent parts five and six. The challenge for the enforcement of the Act is
considered in part seven and conclusion is in part eight.
2. THE OBJECTIVES OF THE PPA
We cannot overemphasize the importance of objectives to a statutory provision
since objective its self is the harbinger that occasion its enactment. It is the
purpose which sets the mission which a particular statue intends to achieve and
does not only prescribe the yardstick for its assessment but also provide a
mechanism for its interpretation. 6
The Canadian courts captured the importance of objectives in
interpreting a statute in the Driedger principle: “… the words of an Act are to
be read in their entire context, in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament.” See Ruth Sullivan, Sullivan and Driedger on the
Construction of Statutes 4th ed. (Vancouver: Butteworths, 2002) at 1.
As a result, statute ought not to be drafted without having a particular
purpose in mind, just as a house should not be built without having a
particular plan as pattern for engineers to follow. 7 There is a presumption that
every enacted statute has a purpose and that purpose must be discovered either
in the preamble to the statue or in the entire statue. Therefore in this section
we will consider the purpose of the PPA by looking in to its objectives in the
Act.
Section 3[1] of the PPA establishes a regulatory body known as the
6 There are many rules of interpretation from the literal rule to golden rule and the mischief rule etc. The
common thread however is that most of the rules consider the objects of the Act in interpreting a statute.
Even where there has been uncertainty, ambiguity or absurdity in the words used in such way that it is
difficult for the judge to fathom the meaning of the statute and its objects, the courts under the common
law will still consider what is the purpose of the Act and not what ought to be the intention of the
Parliament or the Judge. In Duport Steels Ltd v SIRS 1980 House of Lord Scarman said:
‘In the field of statute law the judge must be obedient to the will of Parliament ... Parliament makes ... the
law: the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what
justice requires ... Unpalatable statute law may not be disregarded or rejected, merely because it is
unpalatable.’
‘If Parliament says one thing but means another, it is not, under the historic principles of the common
law, for the courts to correct it ... We are to be governed not by Parliament’s intentions but by
Parliament’s enactments’
But even if the court intends to use the purposive approach as advocated by Lord Denning the relevant
point here is still the purpose of the parliament. In Magor and St Mellons v Newport Borough Council
Lord Denning said:
‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to
find out the intention of Parliament and carry it out’.
7 But see Professor Steven L. Schooner Desiderata: Objectives for a System of Government Contract Law
11 Public Procurement Law Review 103 [2002] He asked a question and answered it himself: ‘What does
your government hope to achieve through its government procurement law? It is possible to draft and
enact a new law without answering the question, and experience demonstrates that this is often the case’.

PROCUREMENT LAW IN NIGERIA 135
Bureau of Public procurement [BPP]. The body becomes an agency with
corporate personality. 8 The objectives of the PPA as a statute are not directly
stated in the Act but could be gathered from the statutory function of the BPP.
In a section of the law 9 titled the objectives of the Bureau the Act mentioned
four objectives of the Bureau which are first to harmonize the existing
government policies and practices on public procurement and to ensure
probity, accountability and transparency in the Procurement process. The
Second is to establish pricing standards and benchmarks while the third is to
ensure the application of fair, competitive, transparent value-for money
standards and practices for the procurement and disposal of public assets and
services. The fourth is the attainment of transparency, competitiveness, cost
effectiveness and professionalism in the public sector procurement system.
It seems the official website of the BPP at its home page is
conspicuously enumerating the objectives of the PPA in a simplified form
when it displayed four core issues as its objectives 10 which are economy
efficiency, competition [provision of a level playing ground for all strata of
bidders], value for money and transparency.
To avoid ambiguity as to what the PPA intends to archive and to
provide guidance and direction to all parties in the contract of procurement,
the Federal Government of Nigeria publishes Procurement Procedures
Manual for Public procurement in Nigeria, 11 The Manual reiterates the issue
of the objectives of the PPA when it mentions and explains six principal
hallmarks of a proficient public procurement system.
The first to be mentioned is the Economy which it explains
graphically as the best value for money. It explains the meaning of value
explicitly when it states:
“For complex purchases, value may imply more than just price, for
example, since quality issues also need to be addressed. Moreover,
lowest initial price may not equate to lowest cost over the operating
life of the item procured. But the basic point is the same: the
ultimate purpose of sound procurement is to obtain maximum value
for money.” 12
The third is fairness which it describes as a process of being non
8 In Nigeria a company must be registered with Corporate Affairs Commission [CAC] before it can be a
corporate body but section 2 of the Act invests the agency with the power of a corporate entity without
registration with CAC. Section 2 provides that the body shall be a body corporate with perpetual
succession and a common seal and may sue and be sued in its corporate name and can also acquire, hold
or dispose of any property whether movable or immovable for the purpose of carrying out any of its
functions under this Act.
9 Section 4 of the PPA.
10 See the official website of BPP supra note 10 [assessed on 16 August,2010]
11 It can be downloaded from the official website of the BPP [assessed on 16 August, 2010.]
12 Id.

136 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
partisan in the sense that all interested contractors, suppliers and consultants
must be given a level playing field on which to compete and thereby, directly
expands the purchaser’s options and opportunities. The fourth is transparency
which according to the manual means that the procurement rules must be
accessible and unambiguous. The fifth is that of accountability and ethical
standards which it explains in form of exhortation and obligation:
“Good procurement holds its practitioners responsible for enforcing
and obeying the rules. It makes them subject to challenge and to
sanction, if appropriate, for neglecting or bending those rules.
Accountability is at once a key inducement to individual and
institutional probity, a key deterrent to collusion and corruption and
a key prerequisite for procurement credibility. A sound procurement
system is one that combines all the above elements. The desired
impact is to inspire the confidence and willingness-to-compete of
well-qualified vendors. This directly and concretely benefits the
purchasing entity and its constituents, responsive contractors and
suppliers, and donor agencies providing project finance.” 13
One of the objectives of domestic legislation of public procurements
by the national governments in their various states is the use of public
procurement as a tool to promote their social and industrial policies. This
particular objective has become a universal trend throughout the globe that
Sue Arrowsmith rightly observed its significance as important objective that
could not be ignored:
“Another important aspect of procurement procedure in many states
is the use of the economic muscle provided by government
procurement to support wider industrial, social or other policies
which are not directly connected with the procurement itself. Thus,
so far as industrial policy is concerned, in order to boost domestic
industry and employment, general preferences have sometimes been
given to national industry in awarding procurement contracts, either
by reserving particular contracts for domestic products or suppliers
only although more commonly by operating a preference of bids
meeting specified domestic content requirements, in terms of use of
domestic products or labor in the contract, or for firms which are
deemed “national’’ firms in term of their location or ownership.” 14
13 Id.
14 See S. Arrowsmith, National and International Perspectives on the Regulation of Public Procurement:
Harmony or Conflict? In Public Procurement: Global Revolution [S. Arrowsmith & A. Davies eds, 1998]
Kluwer Law International . See also Geroski, P.A [1990]. Procurement policy as a tool of Industrial
policy, International Review of Applied Economics, 4 [2]; 182-198.

PROCUREMENT LAW IN NIGERIA 137
To further that universal but domestic objective 15 the PPA provides
that in international bidding, 16 a margin of preference may be given to
domestic bidders or suppliers over the foreign bidders. This preference is
exercisable during the process of evaluation of tenders when a procuring
entity is comparing tenders from domestic bidders with the foreign bidders or
even from the domestic suppliers if some of them are offering goods
manufactured locally and others are offering goods manufacture abroad. 17
The purpose is to develop the economy and thereby ensuring dividends of
democracy to the citizens. One of the ways by which the citizens can benefit
from dividends of democracy is for the government to encourage development
of local contractors and manufacturers. 18
Despite the tendency to prefer local contractors and manufacturers in
certain circumstances enumerated above, the overall goal of the government is
to give all qualified bidders an equal opportunity. Therefore, the Act insists
that everything should be done in a transparent manner. Existence of
preferences must be stated in the bidding documents. 19 In my own analysis,
this will ensure three things; the foreign bidders will have notice of those
preferences against them and can prepare on how to swim against the tide, the
local bidders too will have notice of eligibility for the preferences and that will
ensure preparation too on how to meet the qualification. At the end, the
existence of preferences is not a guarantee that local bidders will win the bid.
The overall goal of the PPA is to inculcate all the objectives in to the
procurement process. It envisages that a sound procurement system must not
take one objective and reject the other if confidence and willingness to
compete must be integrated in to the system. Therefore the Manual 20 gives the
picture of what the Act intends to avoid by embracing all the objectives
without exclusion of any:
“Conversely, a procurement system that fails to take the above
elements [objectives] stimulates hesitation to compete, submission
of inflated tenders containing a risk premium, or submission of
deflated tenders followed by delayed or defective performance.
Other direct results include collusion in bribery by frustrated or
unscrupulous vendors and purchasing entities, bad value for those
15 There has been a minimal restriction on the use of domestic regulation to further industrial goal as a result
of free trade phenomenon, that the word universal may be subject to criticism therefore this issue shall be
further discussed in the next section.
16 International Competitive bidding is defined by the Act as a solicitation of bids from both domestic and
foreign contractors and suppliers.
17 Section 34 [1] and [3] of the PPA.
18 The Manual supra note 24 reiterates that it is the policy of the government to encourage the development
of local contractors and manufacturers page 4.
19 Section 34[2] of the PPA provides that where a procuring entity intends to allow domestic preferences,
the bidding documents shall clearly indicate any preference to be granted to domestic suppliers and
contractors and the information required to establish the eligibility of a bid for such preference.
20 Id.

138 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
entities and their constituents, and betrayal and abuse of the public
trust for personal gain.” 21
3. THE MECHANISM FOR ACCOMPLISHMENT
Compliance strategy or mechanism is the most important aspect of law
making. If rules that are made are not complied with, the effect is the same as
if they are not made at all in the first instance. Therefore what should be the
thinking of the law makers and those who are drafting the law is how to ensure
compliance? In most cases regulatory agencies are established by the enabling
statutes to ensure compliance. And that is the case with the PPA. The first thing
the Act 22 does is to establish a managerial and administrative architecture for
public procurement in Nigeria and this for the purpose of ensuring compliance
of the rules made.
In section one of part one 23 the Act establishes the National Council
on Public Procurement [NCPP] and in section3 of part 2 24 it establishes the
Bureau of Public Procurement (BPP) both as regulatory authorities
responsible for the monitoring and oversight of public procurement in
Nigeria. While the BBP really performs regulatory and administrative
functions, the NCPP exerts control over the administration of BPP to ensure
that the objectives of the Act are not defeated. It gives directives for
implementation to the BPP to ensure that it does not derail from the
fundamental principles for procurement. It approves contract thresholds and
policies on public procurement to ensure and maintain sound procurement
process. 25 Though the president appoints the Director General of the BPP who
is the chief executive and accounting officer 26 the recommendation for the
appointment must come from the NCPP who must also approve it before the
appointment can be valid. 27
The BPP serves as the secretariat for the NCPP 28 and performs a
plethora of administrative functions that are too numerous to chronicle in this
article. In a nutshell, it oversees and regulates public procurement so as to
archive economic value for money, it develops the legal frame work for public
procurement by undertaking research and survey and sets and monitors
standards for public procurement.BPP is the organ that implements rules,
policies and principles of Public procurement in Nigeria and has enforcement
power to ensure compliance with its rules. The issue of a ‘Certificate of no
21 Id.
22 The PPA supra note 10.
23 Id section 1[1].
24 Id section3 [1].
25 Id section 2.
26 Id section7[1] [2].
27 Id section2[b].
28 Id section6[2].

PROCUREMENT LAW IN NIGERIA 139
Objection’ by the BPP is a condition precedent before a contracting entity
could award a contract 29 and if a contract is awarded without this important
document, the contract is null and void and no money can be disbursed to
service such contract. 30
The principal method of procurement is by open competitive bidding
known as a Sealed Bidding, a process by which a procuring entity, based on
previously defined criteria, effects public procurements by offering to every
interested bidder, equal simultaneous information and opportunity to offer the
goods and works needed. 31 Whether international 32 or national, it commences
with invitation to bid which shall be advertised in at least two national
newspapers. Additional advertisement in an internationally recognized
publication is required for international competitive bidding. 33
All bids by the contractors under open competitive bidding must
comply with special special requirements that might be prescribed by the
procuring entity .It should be in writing and sign by an official authorized to
bind the bidder to a contract and placed in a sealed envelope. 34 All bids
received before the deadline shall be deposited in a secured ‘tamper-proof bid
box’ while those received after the deadline are returned to the bidders 35 . The
bids shall be opened in public in the full glare of the bidders, their
representatives and members of the public after they must have been allowed
to examine the bids and ascertain that their bids have not been tampered
with 36 . After the bids have been opened, award must be made to the
responsible bidder who submitted the lowest responsible bid with regard to
work specification and standard 37 .
The second type of procurement process is special and restricted
methods of procurement and this is statutorily divided into different methods.
The first is Two-Stage Tendering Process generally known as ‘two-step sealed
bidding’ which could be used by contracting entity in certain circumstances. 38
29 Id. Section 6[1] [b] gives the power to BPP to issue certificate of ‘No objection for contract Award’ for all
contract to be awarded by the Federal Government of Nigeria and any of its agencies and parastatals.
30 Id section16[2].
31 Id Section 16[1][c]S24[2] of the PPA.
32 Id Section 25[1] it is international if the solicitation of bids is from domestic and foreign contractors but if
all are domestic contractors it is national.
33 If it is international, it can be advertised in any official websites of the procuring entity and that of the
BPP, as well as the procurement journal. If it is national, it shall be advertised on the notice board of the
procuring entity and any official websites of the procuring entity .See Section 25 Id.
34 Id Section 27[1].
35 Id.
36 Id Sections 16 , 17 24 and 31.
37 Id Sections 29 and 30.
38 Id Section 39 [2] ‘where it is not feasible for the procuring entity to formulate detailed specifications for
the goods or works or, in the case of services, to identify their characteristics and where it seeks tenders,
proposals or offers on various means of meeting its needs in order to obtain the most satisfactory solution
to its procurement needs; where the character of the goods or works arc subject to rapid technological
advances; where the procuring entity seeks to enter into a contract for research, experiment, study or
development, except where the contract includes the production of goods in sufficient quantities to
establish their commercial viability or to recover research and development costs, where the procuring
entity applies this Act to procurement concerned with national security and determines that the selected

140 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
The first step requires the contracting entity to request for submission
of tenders and if necessary solicits technical proposals. No tender price is
involved at this stage because the purpose of the step is to find out whether the
supplies or services received are adequate and acceptable. Those suppliers or
contractors whose tenders have not been rejected shall be called upon by the
contracting entity to submit final tenders with prices on a single act of
specification and the awards shall be made from the second stage tenders after
the tenders have been compared with one another and properly evaluated. 39
As an exception ,a procuring entity may result to restricted tendering
and invites only specified contractors to submit tenders if it has obtained the
approval of BPP. Restricted tendering could only be used if it could be proved
that it is economical that a limited number of suppliers or contractors should
supply the goods or works required and that the time and cost required
examining and evaluating a large number of tenders is disproportionate to the
value of the goods, works or services to be procured. 40
All contractors or suppliers who can provide the goods or services
must be invited to tender their bids without discrimination and if there is no
time for evaluation and examination of tenders, then the contracting entity
shall select in a non-discriminatory manner the number of suppliers or
contractors to ensure effective competition. A notice of the selected tendering
proceedings must be published in the procurement journal. 41
As for solicitation for negotiated contracts, PPA requires the
contracting entity to request for quotations from at least three separate
contractors. The requests must be made in writing and should contain
information as to whether any factors other than the charges for the goods,
works or services themselves, such as any applicable transportation and
insurance charges, customs duties and taxes are to be included in the price and
the procurement shall be awarded to the qualified contractor or supplier that
gives the lowest priced responsive quotation. 42
A procuring entity may procure goods or works or services from a
single individual as long as it satisfies the conditions for such direct
procurement but must justify its decision for single source procurement and
those justifiable reasons for determination should be recorded in the record of
procurement proceedings. The reasons must be compatible with the
provisions of the PPA 43 which may be as a result of the fact that the goods,
38 method is the most appropriate method of procurement; or where the tender proceedings have been
utilized but were not successful or the tenders were rejected by the procuring entity under an open
competitive bid procedure and the procuring entity considers that engaging in new tendering proceedings
will not result in a procurement contract’.
39 Id, Section 39[4] [a] [b] and [5]. See also W.Noel Keyes Government Contracts 2 nd edition West
Publishing Company Minnessoata USA p.135.
40 Id section 40.
41 Id.
42 Id.Section 41
43 Id. Section 42.

PROCUREMENT LAW IN NIGERIA 141
works or services are only available from one source or that supervening
events or catastrophic circumstances make the need for them so expedient that
a recourse in to other methods of procurement apart from direct procurement
will be unrealistic. On the grounds of either reasonableness of the price,
unsuitability of alternatives to the goods or services in question or national
security the method can still be adopted.
In the same way, procuring entity may engage in direct contracting
of goods, works and services during emergency situations when the country is
either seriously threatened by or actually confronted with a disaster,
catastrophe, war, insurrection or Act of God or when the condition or quality
of goods, equipment, building or publicly owned capital goods may seriously
deteriorate unless corrective or remedial action is urgently and necessarily
taken to maintain them in their actual value or usefulness or when a public
project may be seriously delayed for want of an item of a minor value that
ought to be procured. 44 Though immediately after the cessation of the
situation which led to the emergency procurement, the procuring entity must
give a detailed report of procurement made to the BPP for verification and if
necessary the BPP will issue a Certificate of No Objection. 45
4. SCOPE, COVERAGE AND APPLICATION
Nigeria is a Federal Republic with a federal system of government. It consists
of thirty six states and a federal capital territory in Abuja. Power is divided
between the states and the federal government. The legislative power of the
Federal Republic of Nigeria is vested by the Constitution in the National
Assembly of the federation which consists of the Senate and the House of
Representatives. 46 The National Assembly has constitutional power to make
law for the whole of the federation in any matter included in the exclusive
legislative list 47 The power to make law in any of the states of the federation is
vested in the House of Assembly of each state 48 The House of Assembly has
power to make law in any matter not included in the Exclusive list. 49 Both the
states and the national assembly’s can make laws in any matter that fall within
the concurrent list with a proviso that if there is inconsistency between the law
made by the federal legislature and the one made by the states, the law made
44 Id. Section 43.
45 Id.
46 See Section 4[1] of the 1999 Constitution.
47 The states could not legislate on any matter in the excusive list. Some of the matters are Aviation matters,
Bankruptcy and Insolvency, Census, Copyright, Defence, Creation of states, Citizenship etc.
48 See section 4 [6] and [7] of the 1999 Constitution.
49 Id. Section 4[7] of the Constitution, this is called Residual power of the states to make laws in the area of
chieftaincy matters etc.

142 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
by the national Assembly shall prevail and the state law shall be void to the
extent of its inconsistency. 50
Government contract falls within the concurrent list which means
both the states and the federal governments can legislate on it and that is the
constitutional limitation in the application of the PPA. It was enacted by the
National Assembly and its coverage does not go beyond the federal
government expenditure. It regulates public contracts at the federal level by
the national government. 51
Another limitation though statutory is self imposed by the PPA itself:
Subsection 2 of section 15 provides that the PPA shall not apply to the
procurement of special goods; works and services involving national defense
or national security. However the limitation is not an absolute one, since it can
be avoided if the express approval of the President has been first sought and
obtained. The PPA gives an inference that it is applicable in some
circumstances to every nook and crannies of Nigeria without a territorial
barrier beyond the jurisdiction at federal level when it provides that it applies
to all entities in Nigeria which derive at least 35% of the funds appropriated or
proposed to be appropriated for any type of procurement from the federation
share of consolidated Revenue fund. 52
Section 162 (3) of the Constitution 53 makes provision, for
distribution of money in the Federation Account, between the Federal
government, the States and the local government Councils in each state.
Section 80 54 defines Consolidated Revenue Fund as:
“All revenues or other moneys raised or received by the Federation
(not being revenues or other moneys payable under this Constitution
or any Act of the National Assembly into any other public fund of
the Federation established for a specific purpose) shall be paid into
and form one Consolidated Revenue Fund of the Federation.”
The fact is that money in the Consolidated Revenue Fund should be
shared between the three tiers of governments in Nigeria. The question for
consideration is whether they can be regarded as entities and whether they are
subject to section 15[1] [b] of the PPA. If they are, the PPA will apply to them
as far as the usage of that fund is concerned; if they are not it will not apply.
50 Id. Section 4 of the 1999 Constitution.
51 This limitation is from the constitution as well as from the statute. Section15[1] of the Act provides that it
shall apply to all procurement of goods, works and services carried out by the Federal Government of
Nigeria and all procurement entities.
52 See section 15[1][b] note that the Act is still new and all of its provisions have not been tested in courts.
However if there is conflict between any of its provision and that of the constitution , the provision of the
constitution will prevail and that provision in the Act shall be void to the extent of its inconsistency se
section 1[3] of 1999 constitution.
53 Id.
54 Id.

PROCUREMENT LAW IN NIGERIA 143
Whatever might be our conjecture, the actual fact is that PPA applies to
federal government and its ministries and agents wherever they might be
located but does not apply to states and states must enact their own
procurement law.
5. THE IMPACT OF THE ACT
The federal Government of Nigeria initiated public procurement reform in
2001and the law was passed in 2007.The Act has been in existence for three
years and that is a short time to examine the effect of a new law in the life of a
nation. Nevertheless it is our opinion that the effort of the government to enact
this law has not been in vain for the past three years that we cannot have
something significant to say about its impact. Therefore this section examines
briefly the impact of PPA in the polity.
The first impact itself is the establishment of procurement law for the
first time in the history of Nigeria to govern public contract. This will go a
long way to save government money and to ensure transparency in
procurement method. The rules and regulations enshrined will serve as a
yardstick to bring culprits to judgment and there is tendency that sound
procurement system will prevail.
A commentator in Nigeria 55 lamented how many people particularly
statesmen have escaped punishment for offences of corruption in the abuse of
public procurement because of the absence of law in that area when he wrote:
“Last year Patricia Etteh was forced to resign as Speaker of the
House of Representatives 56 in the light of evidence that she
irregularly spent 628 million Naira on the refurbishment of her
official residence and diverted much of this money into illicit
payments. Etteh is a prime example of someone who could be
prosecuted under the terms of the new Bureau of Public
Procurement Act. And if she were convicted, the disgraced
politician could find herself serving a prison sentence of up to 10
years.” 57
Another report from Nigeria encapsulates the degenerated state of
55 V. Nwanma- Beware, That Business Proposal Could Procure a Jail Term for You Nigerian Budget
Monitoring Project le: ///C:/Documents and Settings/osua1/Desktop/BEWARE 1.htm [assessed on the 30
of August 2010.]
56 Nigeria has two houses of parliament at the federal level. The upper house is called House of Senate while
the second one is called House of Representatives. The upper house is headed by the president of Senate
while the second house is headed by a Speaker.
57 What the commentator was saying indirectly was that the failure of the government to prosecute Patricia
Etteh the former Speaker of the House of Representatives was the absence of a procurement law in
Nigeria. While that may not be the sole reason for non prosecution of Etteh and many public figures that
have mismanaged government money through public contracts, it could be a contributing factor.

144 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
corruption in the award and performance of contract from both private and
public sector of the economy when a man called Shuabu Attanda was arrested
in Lagos for being in possession of a bag containing 70 dead babies. 58
According to the report, the man was trying to dump the corpses when he was
apprehended. Police report later confirmed that the man in question was
neither a ritualist nor a child trafficker as was originally suspected. 59
On interrogation, the man confessed that he was a contractor to a
prominent hospital in Lagos. He explained further that his services were
engaged through a contract to dispose off corpses of dead babies by the
Department of Morbid Anatomy of the hospital. 60 He disclosed that part of
the terms of the contract for disposing off the corpses was to give the dead
bodies’ decent burial at a cemetery. 61 The man confessed that he was forced
into dumping the corpses of the dead babies anywhere, anyhow because he
could no longer afford to pay the cemetery charges even when it was included
in the total cost of the contract because the funds had been exhausted after
“greasing the palms” of key officials of the hospital who facilitated the award
of the contract. 62 The writer observed correctly that the experience of that
unfortunate contractor underlines the long chain of corruption in public
procurement at all levels of government in Nigeria and that that issue is one of
the numerous challenges which an agency like the Bureau of Public
Procurement is expected to deal with on daily basis at the Federal level. 63
Therefore the enactment of a direct statutory provision will
ameliorate this problems if not totally curb it. It is noteworthy that the Act
prescribes harsh sanctions for those who violate its rules. Most of the
sanctions are imprisonments without an option of fine. A natural person who
is not a public officer can be imprisoned for not less than five years but not
exceeding ten years without an option of fine 64 while a public officer who
contravenes any provision of the Act is subject to the same years of
imprisonment in addition with summary dismissal from government
services. 65 Even a corporate entity cannot escape sanction if it contravenes the
provisions of the Act as it may be liable for disbarment from all public
procurement for a period not less than five years and a fine equivalent to 25%
of the value of the procurement in issue. 66 It is not likely that those measures
specifically aimed at ensuring the integrity of procuring entities may fail, if
effective sanctions in the Act are enforced.
58 See J. E. Nigeria; Procurement Reform – A case for BPP in the states Vanguard Nigerian Newspaper on 9
August 2010.
59 Id.
60 Id.
61 Id.
62 Id.
63 Id.
64 Section 58[1] of PPA.
65 Id.Section 58[5].
66 Id Section 58.

PROCUREMENT LAW IN NIGERIA 145
Another impact is that of sensitization of the citizenry on the objects,
values and components of the Act so that it can be acceptable to all. This
aspect has generated an incredible result in Nigeria. Conferences and
workshops were embarked upon by the civil societies and the BPP to create
awareness among the people about the benefits of transparency in public
procurement. The result is that of public acclamation of the Act, people have
accepted the Act and are clamoring for enactment of same law at the state and
local level. As a result most states have enacted their own procurement laws to
satisfy the aspiration of their people 67 and other states are taking steps to
follow suit. The benefit of this impact is that people are now playing a
watchdog role on procurement issue.
The last impact is that of prudent management of government
resources and money. The Director-General of the Bureau for Public
Procurement, BPP, Engr. Emeka Ezeh, is of the opinion that more than $590
million (N88.5bn) has been saved the nation through the activities of the BPP
in the short time of its existence. 68 According to him, the Public Procurement
Act of 2007 has served as “a clarion call to probity, accountability, adherence
to methods in the disbursement of a commonwealth and the production of
evidence in the application of the wealth.” As a result, “cost of contracts are
no longer unreasonably expensive; they are projected in context and vetted
with due rigour.” 69
6. AMENDMENT TO THE ACT
An amendment was made to some provisions of the PPA by the Senate in 2009.
The first is on the percentage of mobilization to be paid to contractors handling
Federal Government projects in the country. In the Public Procurement Act
(Amendment) Bill passed by the Senate, the Senate specifically amended
Section 35 of the Procurement Act which provided for payment of mobilization
fee of not more that 15 per cent of the contract sum. 70 The amended Bill allows
for the negotiation of mobilization fees to be prescribed in the bid document
for approval by the tenders boards; whereas, the original Act exclusively vested
such power in the Bureau of Public Procurement. 71
The Senate also used the amendment to break the monopoly
currently enjoyed by the Executive to give approval for procurements by other
arms of government.
Under the regime of approval that the new amendment seeks to
67 Twelve states have enacted their own procurement law in Nigeria.
68 Oscarline Onwuemenyi Due process saved Nigeria N88.5Bbn in two years 12 August 2010 Vanguard
Newspaper.
69 Id.
70 See report of the Amendment by the National newspapers Senate amends Public procurement Act This
day 7th of October 2009.
71 Id.

146 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
introduce, other arms of government – Legislature and Judiciary – have been
given powers to govern their procurement in line with the provisions of their
respective budgets. By virtue of the amended Section 16, power of approval
has been devolved to the Body of Principal Officers of the National Assembly
in the case of procurements in the Federal Legislature and the Judiciary
Tenders Board in the case of procurements in the Judiciary.
According to the Chairman of the Senate Committee on Finance,
Senator Ahmed Makarfi, who presented the report of the committee on the
amendment Bill, the purpose of the amendment to section 16 was to ensure
the independence of the other arms of government. 72
Section 22 was also amended to provide that the decision of the
Tenders Board shall be communicated to both the Minister and the
Accounting Officers of the entities making the procurements in the
Legislature and the Judiciary. In the original Act, the decision was
communicated to only the minister. 73
The Senate, which subjected the Bill to clause-by-clause
consideration, also deleted the section which vested the Chairmanship of the
National Council on Public Procurement (NCPP) on the Minister of Finance
and provided that the Chairman shall be appointed by the President.
Another amendment to the Bill was the inclusion of the Nigerian
Union of Journalists (NUJ) as against the media under composition of
membership of the NCPP. 74
7. CHALLENGE BEFORE THE NEW LEGAL
REGIME
The enactment of PPA is a great opportunity for Nigeria to develop as a nation
because national resources will be allocated on just and transparent manner to
satisfy the needs of the people and the move towards government
accountability will be guaranteed as the people have a role to monitor the use
of their resources. However the greatest challenge to the Act is the reluctance
on the path of the government to embrace in totality the full implementation of
the Act. Public contract is seen as a tool to reward political loyalists and to
amass wealth.
The full implementation of the Act will take that supposed tool of
reward away from those in governments hence the lackadaisical attitude by
the government to fully implement the law. Since 2007, 75 the government has
failed to do the first thing that the Act prescribes to be done to lay a strong
72 Id.
73 Id.
74 Id.
75 The Act was passed in 2007.

PROCUREMENT LAW IN NIGERIA 147
foundation for its implementation. Section 1 of subsection 1 76 establishes the
National Council on Public Procurement with mandate so sacrosanct to be
jettisoned. It has mandate to approve and amend the monetary and prior review
thresholds for the application of the provisions of the Act by procuring
entities. 77 It is the highest authority in the hierarchical structure of the
procurement institutions in Nigeria and without its establishment, its statutory
role to control and monitor procurement procedure will be lost. Apart from the
enviable status and function of the NCPP, the likely feature of the Council
which is a good quality for success is the composition of its members. 78
While there may be tendency on the path of the government to
influence some of the members, there is likelihood that it may be difficult to
influence majority of them. As a result, it will be difficult for the government
to influence award of contract to their surrogates. The realization of that
consequence on the path of the government might create reluctance on their
path to full implementation of the Act. Presently, it is the Federal Executive
Council [FEC] that approves public contracts in Nigeria a duty that is
statutorily assigned to NCPP as the approving authority. The continued
approval of contracts by the Federal Executive Council violates the Public
Procurement Act as FEC is not the approving authority recognized by the Act
and this has led to more violation of the Act.
The general pabulum is that birds of the same feather flocks together,
the failure of the Government to constitute NCCP which should be the
foundational step for entrenchment of new procurement regime in Nigeria has
led to other violation, the appointment of the Director General of the BPP by
the president without an input from the yet to be constituted NCCP as the Act
provided is a flagrant disobedience to the provision of the Act. 79
The outcome of such a precarious footing could be predicted. Abuse
of procurement is likely to be the order of the day and that could be one of the
contributing factors to recent abuse in the awards of high profile contracts in
Nigeria. The award of a N8.2 billion contract for the upgrading of NTA
broadcast equipment generated a lot of controversy until it was probed by the
Senate to affirm its consistency with due process of procurement law. Certain
revelations from the probe suggest the fact that a lot of discrepancies occurred
during the award. An independent reporter explained the inconsistencies of
76 Id.
77 Id Section 2[A].
78 Some of the members are Minister of Finance, Attorney-General and Minister of Justice, The Secretary to
the Government of the federation, Economic Adviser to the president who by their political position
might likely be influenced by the president but the list of members include representatives of the civil
society and other professional bodies like Nigeria Bar Association, Nigeria Society of Engineers, Nigeria
Institute of Purchasing and Supply Management, Nigeria Association of Chambers of Commerce,
Industry, Mines and Agriculture etc who are likely to be independent. In fact some of the professional
bodies like Nigerian Bar Association have been in the forefront of democracy campaign.
79 The Act provides in section 7[1] that the Director General shall be appointed by the President, on the
recommendation of the NCCP after competitive selections.

148 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
the award with the procurement law when he wrote: 80
“During the Public Hearing conducted by the Senate Committee,
Prof. Akunyili had stated categorically that the contract was not
awarded by her; rather she only received three names of contractors
forwarded to her by the NTA (Director General?) which she also
forwarded to the President/Federal Executive Council (FEC) for
approval. Further she claimed at that time (2009) that the planning
of the contract started about two years ago (that is 2007) before her
appointment as Minister, though concluded under administration,
and that she is ignorant of the technicalities involved in the
procurement processes and therefore failed to participate in
the award of the contract…the first capital error of Prof. Akunyili is
that in procurement implementation under Section 19 and 22(5) of
the Public Procurement Act , no one contract is awarded to three
contractors at the same time by the Tenders Board with the approval
of the Chief Accounting Officer. It is on record that while
responding to the above charges before the Senate Committee, the
Director General of the BPP, Engr. Emeka Ezeh admitted on the
floor of the Senate, before the nation’s media crew of print and
electronic that the President sent the details of the three contractors
to him for audit/review. Therefore in this chain of contract award
process, the bus stop was now at Engr. Ezeh’s door step. According
to Ezeh, on analyzing the contract documents he found out there
were errors, which included that the project (contract) was not
appropriated for, neither was it advertised for prospective bidders as
required by law in Section 24 of the PPA.”
The independent reporter condemns the role of the Director General
in the whole saga when he further wrote: 81
“The Bureau under Engr. Ezeh did not only become an independent
statutory player (referee) but also a major party in bid Technical
and Financial Evaluation (TFE) in the contract award, a
responsibility strictly reserved for procuring entities . In essence, he
is now acting as a procuring entity instead of an independent umpire
that should adjudicate on the matter when and if there is a dispute …
By selecting one of the contractors forwarded to Engr. Ezeh, which
he described as ‘Damage Control’, knowing that the award failed
80 See M. B. Attah Independent Report: The unresolved N8.14 Billion NTA Contract Award Saga http://
www.nigerianinquirer.com/2010/07/30/independent-report-the-unresolved-?8-4-billion-nta-cont
[assessed on 31 August 2010.
81 Id.

PROCUREMENT LAW IN NIGERIA 149
due process makes him a major party in the [bad] procurement
dispute.”
Another indictment for BPP came in respect with Abuja Airport
Second Runway Contract for the construction of a four –kilometer second
runway at the Nnamadi Azikiwe International Airport Abuja. The House of
Representatives Committee on Aviation after conducting a public hearing on
the contract gave a damning verdict accusing BPP of manipulating the cost
and bidding process of the award in violation of procurement procedures. 82 A
newspaper Editorial in Nigeria captures the discrepancies graphically when it
comments:
“Many issues were uncovered during the public hearing. The ‘No
Objection Certificate’ issued for the project was not only falsely
issued by the Bureau of Public Procurement but deliberately and
wrongly issue in conspiracy with the Managing Director of Federal
Airport Authority of Nigeria [FAAN] and other officers of FAAN to
inflate contract and defraud the federal government of Nigeria. The
proceedings, processes and decisions for the award of the contract
were not made accessible to the public, which would have allowed
for observation, monitoring ,review ,comment and possible whistle
blowing to ensure transparency.” 83
The Minister of Transport Alhaji Isa Ibrahim Bio was also indicted in
the award of contract for the modernization of the Jebba-Kano railway line to
Costain West Africa Construction Company at the sum of N12.2billion. The
staff of the Railway who made the allegation recounts how the contract was
inflated through spurious procedures contrary to procurement rules. They
assert: 84
“By right, the board supposes to deliberate and agree on any railway
contract before it recommend to the Federal Executive Council
(FEC) through the Minister for approval. But unfortunately, the
meeting of the board was summoned on 29 December, 2009 by
10am to deliberate on the contract for the rehabilitation of the Jebba
82 House Aviation Committee Chairman, Bethel Amadi, issued a statement where he specifically mentioned
the sections of the law breached. He said: ‘There were obvious breaches of various Sections of the Public
Procurement Act, especially 16(17), (18), (19), (20); 24(3), 31(2), (3a, b and c), and 33, indicating the
potential breach of due process in the award of the contract’ See http://news2.onlinenigeria.com/news/
general/25770-Reps-Tackle-Presidency-Over-Runway-Contract.htm [assessed on 1 September 2010.See
also Abuja's Airport Runway of Controversy Daily Trust 14 April 2010.
83 See News star Newspaper 31 May –1 June Editorial Profligacy in Public procurement page 14.
84 S. Abubakar, Nigeria: How N2Billion Railway project was awarded at N24 Billion Daily Trust 26
January 2010. Can be down loaded at http://allafrica.com/stories/201001270550.html[assessed on 1
September 2010].

150 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
to Kano railway line that was to be awarded to Costain West Africa
that same day by 4pm.
It has already been decided and invitations were already distributed
invited people to witness the signing of the contract by 4pm that day
before we were asked to come for a meeting by 10am the same day
to agree on what has already been decided. There was no record
anywhere indicating that Costain West Africa ever handled any
railway project in the past. In any case, the board suppose to meet,
deliberate and agree on who should be recommended for the
contract and not for us to adopt the decisions of the minister.”
The minister retorted back in defense: 85
“We want to make sure Nigerians enjoy railway services. The
challenges are enormous, people call us names. We are not of
particular interest to a particular contractor, to a particular sector, to
a particular group, but what is of particular interest to this
administration is delivery. If you are able to deliver or you have the
ability to deliver, we would work together.”
The fact that emanates from all these controversies is the
involvement of the government in the award of contracts in Nigeria contrary
to the procurement law. Governments are not procuring entities; they are not
tender boards and should also not be the approving authority for public
contracts. The present trend is misnomer and should be rescinded. Another
pathetic fact is that of the integrity of the procurement officers. That is a great
setback to the new legal regime but the root cause is still the failure of the
government to fully implement the procurement law. Although there is
adequate sanction 86 for the procurement officers who misbehave in the Act to
make them suffer for their misdemeanor, if government is involved, they may
escape punishment. In addition, section 57[1] 87 provides that the Bureau with
the approval of the NCPC shall stipulate a code of conduct for all public
officers. The problem is that the NCPC has not been constituted. Final
implementation of the procurement law is the panacea to the ills of the
procurement system in Nigeria.
85 Id.
86 See section 57 of the Act [PPA].
87 Id.

PROCUREMENT LAW IN NIGERIA 151
8. CONCLUSION
We have examined the procurement law in Nigeria, the policies and the
objectives of the law at the domestic level are sound. The regulations fashions
along UN Commission on International Trade Law [UNICITRAL] Model are
capable of attaining the desired objectives if well implemented and that is
where the problem lies. There is great concern on the involvement of the
government in the procuring process, concern on the integrity of the
procurement officers and the lack of political will by the government to fully
implement the law. We observed to our chagrin, partial implementation of law
by the government. What could be responsible? The power to award contract
is a prestigious one which the government does not want to lose and we profess
that to be the reason why the federal government in Nigeria has not constituted
the right body to approve contract. Till today the Federal Executive Council is
responsible for approval of contracts while the ministers and other government
functionaries play a greater role in procuring contracts. The resultant effect of
that lip service has been explained in this article which is an orgy of violation
of procurement law. We, therefore call on the federal Government of Nigeria
to take all necessary steps to inaugurate the NCPP according to the
procurement law. On the issue of the integrity of the procurement officers,
those who are found to be corrupt or whose names have been discredited
should face the wrath of law and qualified professionals of impeccable
character should be appointed. Another aspect is the scope of the application
of the PPA, until similar law applies in all the states and local levels, the gain
of the Act shall be short-lived. Though the broad exception in the areas of
defense and security may be universal 88 it can constitute an avenue for
compromise and corruption in Nigeria in view of the controversy surrounding
the use of security vote by the executive governors in the states. There should
be an amendment to check the excesses of the executives in that area.
88 Almost all the procurement law of every country has this exception.

153
COMMENTS
Principled leadership: Finding common ground among
divergent philosophies*
ABSTRACT
V. D. Lopez**
This opinion piece tentatively explores the interrelationship among the various
competing ethical philosophies and the political systems they inform and notes
some of the qualities shared by effective principled leaders that transcend
irreconcilable philosophical differences and foster fair decision making
regardless of the school of ethics from which a leader's personal ethics are
derived.
1. INTRODUCTION
The quest to discover ethical truths has led Western philosophers down some
very different paths throughout the past three millennia. Even a cursory
examination of the field quickly reveals irresolvable tensions among
irreconcilable points of view. Unfortunately, the discussion of ethical standards
and the societal, political and moral norms they inform often occurs without an
attempt to define terms or provide context for meaningful debate. A brief
overview of some of the leading divergent philosophies is a good starting point
to any meaningful discussion on ethics, its impact on public policy and its role
in the making of a principled leader.
2. A BRIEF OVERVIEW OF SOME TRADITIONAL
SCHOOLS OF ETHICS
Ethical Absolutism
Ethical absolutism is an ethical philosophy with many diverse branches all tied
in to the central idea that there are certain universal standards by which to
measure morality. Under this broad branch of ethics, concepts such as good and
evil and right and wrong have a separate existence that can be discovered and
* This opinion piece is based in part on an essay by the author on principled leadership that was posted to
leaderethics.com in 2005.
** Associate Professor of Legal Studies in Business, Hofstra University, Frank G. Zarb School of Business,
Hempstead, New York. The author gratefully acknowledges the support of a summer research grant from
the Zarb School of Business that facilitated research, writing, and revision of several articles and this
opinion piece.

154 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
understood by human beings through philosophical inquiry. Proponents of this
broad branch of ethics represent a very wide variety of schools of thoughts that
often include diametrically opposed world views and political philosophies.
Plato, St. Thomas Aquinas and Karl Marx all believed in ethical absolutism,
despite the fact that the overall philosophy and world view of each man was
quite different.
Religious Fundamentalism
Religious fundamentalism is an offshoot of ethical fundamentalism. As a
theory of ethics, it is based on the existence of certain immutable truths. Unlike
ethical absolutism, however, which requires that these values be discovered
through philosophical inquiry and introspection, ethical norms under religious
fundamentalism can only be found by studying the lives and writings of
prophets or by consulting Holy Scriptures. Under this philosophy, living a
moral life depends upon strict adherence to the religious principles and moral
code dictated by one’s religion.
Utilitarianism
Utilitarianism has as its ethical base the assignment of value to actions based
upon their outcome. Under utilitarianism, the ultimate good is defined as
actions intended to bring about the greatest happiness (or greatest good) for the
greatest number of individuals in any society. Thus, moral action for a
utilitarian requires the constant evaluation of actions based upon their intended
result. Actions that bring about the greatest good to the greatest number are
ethical, or good, while actions that fall short of that goal are unethical, or
wrong. To put it another way, utilitarianism does not recognize an intrinsic
value to actions, but rather assigns a positive or negative moral judgment to
actions only in view of their result. The most notable proponents of this
philosophy are the British philosophers Jeremy Bentham (1748-1832) and
John Stuart Mill (1806-1873).
Ethical Relativism
Like utilitarianism, ethical relativism denies the existence of absolute moral
values, and holds that moral judgments cannot be made in a vacuum. Unlike
utilitarianism, however, the yardstick by which to measure the morality of an
act is not the common good, but rather the circumstances surrounding the
person committing an act at the time that an act is committed. It is a precept of
this philosophy that a person's actions cannot be judged other than by placing
oneself in the same situation that the actor faced in committing the act in

PRINCIPLED LEADERSHIP 155
question. So that stealing to feed one's hungry child, for example, is not
necessarily wrong. On a societal level, ethical relativism acknowledges that
there are differences between cultures and that what is considered wrong or
even hateful in one culture may be acceptable in another, depending on its
particular circumstances. Human sacrifice, cannibalism, infanticide and ethnic
cleansing are all arguably justifiable for some cultures. Notable proponents of
relativistic theories include W.G. Sumner (1849-1910) in the U.S. and E.A.
Westermarck (1862-1939) in the U.K.
Deontology
Deontology is a duty-based ethical theory whose principal proponent is the
German philosopher Immanuel Kant (1724-1804). For Kant, an act's morality
is dependent upon the actor's motive, and the only unconditionally good motive
is doing one’s duty. For Kant, the concept of duty finds its expression in
categorical imperatives, a set of rules of behavior derived from practical reason
and tested through a filter of universal application. A basic categorical
imperative arrived at practical reasoning, such as you should not steal, is valid
if you can justify the whole world living up to the rule. In other words, moral
behavior can be defined as acting in accordance with rules that you would be
willing to impose on the whole world as a valid code of conduct. A person acts
morally whenever she follows a categorical imperative out of a sense of duty.
Merely engaging in right action of itself is not moral; refraining from stealing
because one feels the obligation not to steal is moral conduct, but refraining
from stealing out of fear of getting caught would not rise to the level of moral
conduct.
3. ETHICS AND PUBLIC POLICY
The political implications that flow from even a very superficial overview of
differing ethical systems should not be ignored. Whether by design or by
default, the ethical values held by political leaders and lawmakers invariably
become a part of the political system. We need not look far to see examples of
the influence of ethical systems on public policy and on the politics of nations.
The influence of religious fundamentalism can readily be seen today in a
number of countries, particularly in the Middle East, where militant religious
fundamentalists are engaged in armed struggles to overthrow what they believe
to be immoral secular governments that are instilling in their people false moral
values. If one believes that the only true source of morality is religion, it is
logical to believe that theocracy is not only the best, but perhaps the only moral
form of government. Ethical absolutism is also readily observable in its secular
form in past and present non-religious totalitarian Marxist, communist and

156 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
fascist regimes. Taken to their logical conclusion, absolutist ideals can not only
be used to justify totalitarianism, they require it; if there are certain knowable,
immutable truths that are valid for all time, then only truly moral form of
government is one that educates and indoctrinates its people to recognize and
conform to the moral conduct that those truths dictate.
If totalitarian regimes are based on ethical absolutism or religious
fundamentalism, it is clear that democratic governments lean towards nonfundamentalist
ethical principles. The assumption that a variety of plausible
views can exist on even essential ethical principles is central to a democratic
form of government. The principle of majority rule almost inevitably leads to
the adoption of some form of moral relativism as the guiding ethical principle,
especially in societies with highly diverse social, ethnic and religious cultures
and large numbers of unassimilated immigrant populations. The very notion
that right and wrong is subject to a vote institutionalizes ethical relativism in
all democracies; issues such as the death penalty, abortion, and pornography,
and governmental efforts to regulate these areas, illustrate with the strong
emotions and endless debate they elicit our relativistic ethics. Individuals in
democratic societies are free to reject ethical relativism, and many do. They
can also lobby their government to change existing laws, arguing for the
adoption of their point of view. But a democratic system that completely
abandons ethical relativism in favor of ethical absolutism, whether of the
secular or religious variety, cannot remain a democracy for long.
The obvious problem we face when trying to impose an ethical
system is in deciding which system to use. While it can be argued that
governments should not legislate morality, all governments in fact do so to
some extent. Criminal law is largely based on prohibiting and punishing
antisocial behavior; as such, criminal law inevitably reflects society's ethical
standards and attempts to discourage behavior that society deems immoral.
Ultimately, questions of ethics come down to personal belief. Depending on
the philosophical system applied, nearly any moral point of view is
defensible; unfortunately, one person's ethical conduct is frequently another's
mortal sin. In a political context, ethical debate often hinges on irreconcilable
differences. On the abortion issue, for example, the pro choice and pro-life
groups have philosophical differences that cannot be reconciled. The same is
true of people on opposite sides of the perpetual debate on the death penalty,
gun control, legalization of drugs, animal research, gay marriage, and
innumerable other issues. Very often, groups on either side of a political
controversy believe themselves to be morally right, and, by definition, believe
that those who hold opposing points of view are morally wrong (hence,
immoral). The strength of a democracy is in its ability to incorporate differing
points of view and to obtain a functional compromise on most issues. Some
issues, however, leave no room for compromise, and it is here that the battle

PRINCIPLED LEADERSHIP 157
for the hearts, minds – and votes – of citizens is fought. Regardless of what
group wins and what opinion manages to weave itself into the fabric of the
law, issues of ethics cannot be resolved by majority rule for most people, and
spirited debates continue, sometimes escalating into violence and death in too
many countries around the globe.
4. CHARACTERISTICS OF PRINCIPALED
LEADERS
Fortunately, honest, honorable men and women worthy of the respect and
loyalty of those they are entrusted to lead can create and promote an ethical
business environment regardless of whether their personal ethics are grounded
in the teleology or deontology traditions. I prefer the term principled leadership
to that of ethical leadership to denote such individuals precisely because there
is less ambiguity in the former than in the latter term. For me at least, the
qualities that make for a principled leader are easily enumerated, and the
environment that such individuals need in order to thrive and flourish is equally
easily identified. These leaders do not need to consult best practices manuals
or other flavor-of-the-month derivative “new” pathway to success. Their
guiding principles are simple, timeless, and work without mystery or magic.
They simply share the following characteristics:
1. They put the interests of the institution they serve above their own self
interest;
2. They understand that character is defined by the small acts they perform
when nobody is looking;
3. They recognize that respect must be earned and nurtured over time but can
be lost in an instant;
4. They promote their people, not themselves;
5. They take responsibility for their personal failures and for the failures of
the group they lead;
6. They share credit for their successes with those who made them possible;
7. They are consistent and predictable in their decision making and in
exercising their discretion;
8. They strive to do what is right rather than what is expedient, regardless of
the consequences to themselves;
9. They do not fear making unpopular decisions or clearly communicating
their rationale for making such decisions;
10. They only serve institutions that do not require them to compromise their
principles.
Principled leaders make an enormous impact on the organizations they serve at
all levels, and are often most appreciated after they retire or move on, their
contributions and impact most poignant and palpable in their absence.

158 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
5. CONCLUSION
While we may forever debate the relative worth or practical value of the
various schools of ethics, there can be no doubt that there are countless
principled leaders whose personal ethics reflect each of these divergent views.
Consistency, fairness, conscientiousness, reasonableness, supportiveness and
predictability are among the qualities that earn good leaders the respect and
trust of those they are entrusted to lead and are universal virtues in themselves.
Women and men of good conscience can arrive at good decisions for the
organizations they lead from a wide range of perspectives. And while their
personal ethics will inform their views on issues, it is these other qualities that
will ultimately determine whether they are principled leaders. Strict adherence
to a given ethical philosophy will not guarantee principled leadership, and may
well hinder it. Leaders with an absolutist philosophy (religious of secular) can
be inflexible, overly judgmental, and unable to empathize or effectively
interact with those who do not share their views. Likewise, leaders who strictly
follow ethical relativism may face difficulty in setting clear standards,
enforcing rules and providing a predictable, stable administration. And,
clearly, a truly nihilistic individual who acknowledges no valid guiding
principles beyond the attainment of goals dictated by their self-interest will
never be a principled leader.
Examining the essential sources of our different ethical belief
systems can enhance understanding, allow us to find common ground and
work together towards achieving a common purpose. The personal ethical
values of a leader, and the ethical philosophy upon which these are grounded,
may be important elements of principled leadership. But an individual’s value
system is not the best yardstick by which to measure principled leadership.
Ultimately, we must judge our leaders by the observable virtues we can glean
from their actions and recognize that good, honorable, effective principled
leaders may hold value systems very different from our own.

159
ABSTRACT
MTN & Airtel’s African tryst: The legal angle
S.V. Adithya Vidyasagar*
Bharti Airtel and MTN have been two telecommunication companies that enjoy
a dominant position in India and South Africa respectively. When an alliance
was first proposed between these to companies, everyone in both the countries
went into frenzy as to how the combined entity would be formed, its structure
and the potential benefits this combined entity would provide to its subscribers
and shareholders. When the deal didn’t get through; infact it fell through twice,
it was as if a match made in heavens was not being allowed to be. The primary
logic which perhaps formed the basis of this deal’s failure was that these two
companies were seen in their home territories as prized possessions and their
respective governments were not willing to let them relinquish their national
identities. Keeping this basic premise in mind, this article tries to dwell deep
into the legal issues involved in this deal and how they were instrumental in the
failure of this deal. The three primary legal issues involved in this deal were:
(i) Dual Listing of the combined entity (ii) FDI regime in India (iii) India’s
Takeover Code. All these issues are discussed in detail in Chapter 3 of this
article. Since the deal never actually materialized, the deal structure and the
full monetary aspects of the deal were never disclosed. Hence secondary
sources of information like leading newspapers, journals etc were utilized to
base this article. The complex legal issues involved in this deal have been
analyzed in a simplified manner for the benefit of the general public and to
allow for everyone to appreciate the size and importance of the deal. The main
aim of this article is to allow for the general public to understand the legal
issues which didn’t allow the deal to go through.
INTRODUCTION
Bharti Airtel and MTN have been two telecommunication companies that
enjoy a dominant position in India and South Africa respectively. When an
alliance was first proposed between these two companies, everyone in both the
countries went into frenzy as to how the combined entity would be formed, its
structure and the potential benefits this combined entity would provide to its
subscribers and shareholders.
When the deal didn’t get through; in fact it fell through twice, it was
as if a match made in heavens was not being allowed to be. The primary logic
Company Secretary of the Institute of Company Secretaries of India (ICSI); B.Com LL.B (Hons.)
candidate at Gujarat National Law University, India (Class of 2006 - 2011).

160 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
which perhaps formed the basis of this deal’s failure was that these two
companies were seen in their home territories as prized possessions and their
respective governments were not willing to let them relinquish their national
identities. Keeping this basic premise in mind, this article tries to dwell deep
into the legal issues involved in this deal and how they were instrumental in the
failure of this deal.
The three primary legal issues involved in this deal were: (i) Dual
Listing of the combined entity (ii) FDI regime in India (iii) India’s Takeover
Code. All these issues are discussed in detail in Chapter 3 of this article. Since
the deal never actually materialized, the deal structure and the full monetary
aspects of the deal were never disclosed. Hence secondary sources of
information like leading newspapers, journals etc were utilized to base this
article.
The complex legal issues involved in this deal have been analyzed in
a simplified manner for the benefit of the general public and to allow for
everyone to appreciate the size and importance of the deal. The main aim of
this article is to allow for the general public to understand the legal issues
which didn’t allow the deal to go through.
PROLOGUE
Bharti Airtel Ltd is an India based multinational mobile telecommunications
company. It is the largest cellular service provider in India and makes up for
about 23 per cent of the India’s mobile market. 1 The telecom company is led
by India’s telecom czar, Mr. Sunil Mittal who effectively holds a controlling
stake in Bharti Airtel through Bharti Telecom. Bharti Airtel has been keen to
position itself as a transnational corporation with its non-India operations like
Airtel Lanka, Airtel Kenya etc.
The MTN Group is a South Africa based multinational mobile
telecommunications company, operating in many African and Middle Eastern
countries. It has presence in nearly 20 countries in Africa and Middle East.
Bharti Airtel and MTN conducted exclusive negotiations twice, 2 in
just one year to create a transnational alliance which in future could lead to a
full blown merger however both times the negotiations fell through. 3 The
talks attracted the attention of the Governments of both the countries who kept
a close eye on every move made by these two corporations. With all this
public, industry and media frenzy over a deal which could have easily
1 ‘Subscriber Figures for April 2010’, Cellular Operator Association of India, URL: http://coai.com/
Sub%20Figs/GSM%202010/all%20india%20GSM%20cell%20sub%20figures%20-%20Apr%27%2010.
xls (Last visited on 13 May, 2010).
2 The first round began on 5 May, 2008 and the second round on 25 May, 2009.
3 A. Sharma and E. Bellman, ‘Bharti, MTN Disconnect Deal Worth $24 Billion’, The Wall Street Journal,
URL: http://online.wsj.com/article/SB125431578653952371.html (Last visited on 20 April, 2010).

AIRTEL’S AFRICAN TRYST 161
positioned the combined entity as a leading telecommunications company
worldwide, the deal fell through.
This article tries to understand in simple terms the reasons for
pursuing this deal and the reasons for its fallout from a legal angle. The
various Indian laws applicable to this deal and the reasons for South African
government’s unwillingness to approve a proposed deal structure would be
analyzed. The main thrust of this paper is to bring to the fore the importance
of each of these corporations in their home countries and how each country
was unwilling to let go of its home corporation’s national identity.
THE NUMBERS OF THE DEAL
The two companies pegged the transaction size at around USD 23 billion.
Bharti Airtel was to pay around USD 13.1 billion for a 49% stake, with USD 7
billion in cash and USD 6.1 billion in equity. MTN, on the other hand, was to
pay around USD 9.6 billion for its 25% stake in Bharti Airtel (the remaining
11% to be held directly by MTN shareholders). Since MTN was paying USD
2.9 billion in cash as part payment for its stake, the net cash outflow for Bharti
Airtel was estimated at USD 4.1 billion (i.e., the USD 7 billion that Bharti
Airtel was required to pay less the USD 2.9 billion it was supposed to get from
MTN). 4 The transaction could have created the third biggest phone firm (by
subscribers) in the world behind China Mobile and Vodafone Group Plc. A
combined Bharti Airtel-MTN would have more than USD 20 billion in
revenue and over 200 million customers easily allowing it benefits of scale. 5
THE SYNERGIES FROM THE DEAL
The two companies would have surely benefited from their respective
technical and services experience. Bharti Airtel had already demonstrated how
managed services (outsourcing key network and IT installations) can be
utilized to handle growing markets such as India. Bharti Airtel operates in a
market where average tariffs per minute on mobile phone calls are less than Re
1 per minute (USD 0.02 per minute), but it still makes a lot of money. It cuts
cost by outsourcing network construction and management in a model that is
close to pay per use. It has also outsourced IT, a move considered radical by
even US and European telecom giants. India’s IT firms built their business by
convincing customers elsewhere that their work could get done at lower cost
4 A. R. Khan, ‘Bharti-MTN deal: short-term worries, but long-term gains’, Live Mint, 25 May, 2009, URL:
http://www.livemint.com/2009/05/25231630/BhartiMTN-deal-shortterm-wo.html (Last visited on 26
March, 2010).
5 A. Sharma, ‘Bharti, MTN Near Compromise’, The Wall Street Journal, 28 September, 2009, URL: http://
online.wsj.com/article/SB125407120709044251.html (Last visited on 23 March, 2010).

162 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
here. Bharti Airtel operates on a low cost model and was convinced the model
can work in other parts of the world or at least in Africa. 6
MTN on the other hand has extensive mobile broadband (3G)
portfolio and has implemented mobile number portability (MNP). With India,
on the verge of implementing MNP and 3G looking to pick up steam, the
combined entity would certainly have gained an upper hand. Further, Africa
and large parts of West Asia have high customer billings also known as
average revenue per user (ARPU) in the industry running up to USD 18 a
month in countries such as Syria and South Africa which present a revenue
expansion opportunity for Bharti Airtel, which like most Indian players rarely
has ARPU rates of more than USD 7. Also, the opportunity for growth in
Africa and India is a positive for both sides. Both Africa and have around 40%
penetrations allowing for a lot of opportunity. 7
THE FAILURE OF THE DEAL
After months of due diligence and talks between Bharti Airtel and MTN, after
countering a host of issues, the deal couldn’t go through because of the
‘structural issues’ as stated by the South African government. 8 The deal was
primarily influenced by the following major factors:
1.Dual Listing of the combined entity
2.FDI regime in India
3.Indian Takeover Code
Dual listing as per standing South African laws is allowed. 9 However
India currently does not allow dual listing at its stock exchanges. This
presented an unforeseen legal challenge for the structuring of the deal
especially given the restrictive Indian laws. Further the FDI regime in India
was changed in early 2009 especially as regards the telecom sector which
further complicated matters. The death bell for the deal was perhaps the
complete U-turn done by the Indian market regulator – SEBI from its earlier
guidance provided to the deal makers and the subsequent amendment of the
Takeover Code. All these issues combined with the South African
Government’s unwillingness to let go of MTN’s South African identity jointly
failed the deal and are discussed at length in the next chapter.
6 A. Anyimadu, ‘The Economist on MTN’, The Economist, 10 May, 2008 (U.S. Edition).
7 A. Mukherjee, ‘Airwave Sandwich’, Outlook India, 2 June, 2008, URL: http://www.outlookindia.com/
article.aspx?237548 (Last visited on 12 May, 2010).
8 ‘Bharti, MTN call off merger talks’, Bloomberg UTV, 30 September, 2009, URL: http://
www.bloombergutv.com/industry-news/telecom-industry-news/33330/bharti--mtn-call-off-mergertalks.html
(Last visited on 17 April, 2010).
9 For instance Investec is a dual listed company with Investec Plc (listed in London) and Investec Limited
(listed in Johannesburg). Also Mondi Group Plc is listed on the London Stock Exchange and the
Johannesburg Stock Exchange.

AIRTEL’S AFRICAN TRYST 163
THE LAW VIS-À-VIS THE PROPOSED DEAL
The legal setup of both the countries presented a unique challenge for this
strategic alliance. Both these companies were market leaders in developing
economies which led to each of these companies being seen in their home
territories as prized possessions and their respective governments were not
willing to let them relinquish their national identities.
One of the novel suggestions put forth to overcome this national
identity issue was to allow for the combined entity to be dual listed at
Johannesburg and Mumbai. Dual listing is a listing process by which a
company would be allowed to be listed and traded on the stock exchanges of
two countries. Put simply, it is a process that allows a company to be listed on
the stock exchanges of two different countries. The company’s shares, which
enjoy voting rights, can be traded on both the bourses. When two companies
in two countries enter into an equity alliance without an outright merger, dual
listing means continued listing of the firms in both the countries. The key
point is that the shareholders can buy and sell shares of both the companies on
bourses in the two countries.
In a conventional merger or acquisition, the merging companies
become a single legal entity; with one business buying (for cash or stock) the
outstanding shares of the other. However, when a dual listed company is
created, the two companies continue to exist, and to have separate bodies of
shareholders, but they agree to share all the risks and rewards of the
ownership of all their operating businesses in a fixed proportion, laid out in a
contract called an ‘equalization agreement’. 10
We will now focus at the legal hurdles in the Indian laws as regards
this dual structure. India currently does not allow dual listing. This is because
there is no full capital account convertibility (CAC) in India. CAC is normally
understood as the freedom to convert local financial assets into foreign
financial assets and vice versa at market determined rates of exchange. India
introduced full capital account convertibility first for NRIs in early 2002, 11
and with the decisions in January 2004 it has substantially begun the process
of introducing full convertibility for the benefit of foreigners. 12 However this
process is still not complete. India is slowly moving in this direction at a slow
and calibrated pace.
Now let us look at the Bharti Airtel-MTN deal from the dual listing
viewpoint. At the 2009 G-20 Summit, a South African minister requested
10 See generally L. Rosenthal and C. Young, ‘The seemingly anomalous price behaviour of Royal Dutch/
Shell and Unilever N.V./PLC’, Journal of Financial Economics (1990) 26, 123-141.
11 T. G. Arun and J. D. Turner, ‘Financial Sector Reforms: The Indian Experience’, The World Economy,
(2002) 25(3), 429-445.
12 ‘Full convertibility: Caution still the watchword’, The Hindu, 9 February, 2004, URL: http://
www.hindu.com/2004/02/09/stories/2004020900050200.htm (Last visited on 5 May, 2010).

164 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Indian Finance Minister Mr. Pranab Mukherjee to allow dual listing of Bharti
Airtel in India and South Africa. 13 This single move clearly lays down the
importance attached to the deal from South African viewpoint. The Indian
position on CAC is based upon in-depth analysis of volume of reserves and
reserve management system. The Government of India was not willing to
change its policy change on full convertibility of rupee at the time of the
deal. 14 Even though the case of one off exemption in case of this deal was
contemplated but it was not thought feasible to due the RBI’s perception of
the Indian rupee and the fiscal debt position. Hence such an exemption could
not be made possible thereby totally eliminating the dual listing scenario
which the South African government was heavily banking upon to approve
the deal.
On top of that the Independent Communications Authority of South
Africa also asserted that the proposed deal would require their approval and
may face public hearings before such approval is granted. This new hurdle
was because MTN was a South African company with a footprint in Africa
and the South African government was interested that it should remain
African. 15 This made the passage of the deal even more burdensome so much
so on the eve of failure of Bharti Airtel-MTN, investors rejoiced as shares in
MTN jumped as much as 5.98 percent on the Johannesburg bourse while
Bharti Airtel shares gained as much as 11.58 percent in Mumbai. 16
Another major hurdle was the complex FDI regime applicable to
telecom sector in India. FDI is brought into India by two means. The first is
the approval route, whereby prior approval from the Foreign Investment
Promotion Board (FIPB) is required before making any investment. The
second is the automatic route, whereby no approval from the FIPB is required,
provided that the intended investment fulfils the applicable criteria.
Thereafter, the Reserve Bank of India is to be informed within 30 days of
inward remittance and the necessary documents be filed with the Reserve
Bank of India within 30 days of shares being issued to foreign investors.
On 13 February, 2009 radical changes were made to the FDI norms
in anticipation of increased foreign investment. The Department of Industrial
Policy and Promotion issued Press Notes February 2009 and March 2009 and
issued further clarifications on 25 February, 2009 through Press Note April
2009, which expanded upon and modified the various previous policies and
13 P. Sinha, ‘Dual listing to hit Bharti-MTN’, 16 September, 2009, URL: http://timesofindia.indiatimes.com/
biz/india-business/Dual-listing-to-hit-Bharti-MTN/articleshow/5016156.cms (Last visited on 1 June,
2010).
14 ‘Bharti-MTN deal: Dual listing not possible now’, Business Standard, 24 September, 2009, URL: http://
www.business-standard.com/india/news/bharti-mtn-deal-dual-listing-not-possible-now-says-sharma/
74264/on (Last visited on 31 May, 2010).
15 W. Roelf, M. Bosch and D. Cowell, ‘MTN, Bharti deal needs S. Africa govt clearance’, 14 September,
2009, URL: http://in.reuters.com/article/idINLE70811520090914 (Last visited on 4 June, 2010).
16 S. Chaudhry and D. Tripathy, ‘Failure of Bharti/MTN talks pleases investors’, 1 October, 2009, URL:
http://in.reuters.com/article/idINIndia-42846420091001 (Last visited on 27 May, 2010).

AIRTEL’S AFRICAN TRYST 165
the method of calculating direct and indirect foreign investment.
Press Note February 2009 laid down criteria as to how and when will
a company will be considered to be ‘owned’ and ‘controlled’ by an Indian. It
also clearly differentiated between direct and indirect investment. 17 Press
Note March 2009 further provided that for the assessment of FDI, foreign
investment will now include investment by foreign institutional investors,
non-resident Indians, American depositary receipts, global depositary
receipts, foreign currency convertible bonds, convertible preference shares
and convertible currency debentures. These were earlier regulated separately.
It further made it mandatory to procure FIPB approval where the control or
ownership of an existing Indian company is transferred by resident Indians
and companies to a non-resident entity as a consequence of a transfer of shares
through a merger or amalgamation. 18
Press Note April 2009 elucidated the new guidelines for downstream
investment by Indian companies and, specifically, operating companies (i.e.,
those companies undertaking operations in various economic sectors and
activities), investing companies (i.e., those companies holding only
investments in other Indian companies, directly or indirectly) and operatingcum-investing
companies, which were owned or controlled by non-resident
entities. 19 On an overall reading of these guidelines it became clear that the
Bharti Airtel-MTN deal was made further complex as these new regulations
changed the definitions of important terms like company owned and
controlled by Indians, calculation of direct investment, indirect investment,
downstream investment etc. It was apparent that retaining ownership and
control with Indian companies and Indian residents was of paramount
importance for the Government of India. Thus the deal was again requiring to
be restructured to ensure that the transaction structure minimized the need for
government intervention and approvals.
The last bump was SEBI’s Takeover Code 20 and its recent
amendment. The amended code now mandated that an open offer be made
even if American Depository Receipts (ADRs) and Global Depository
Receipts (GDRs) with voting rights cross the prescribed threshold. Earlier a
stake acquisition of more than 15 per cent triggered the open offer
requirement. Depository receipts were however not considered part of this
requirement until they were converted into Indian shares but with overseas
investors increasingly seeking voting rights, SEBI decided to amend the
17 Press Note No 2 (2009 Series), Government of India, URL: http://siadipp.nic.in/policy/changes/
pn2_2009.pdf (Last visited on 1 June, 2010).
18 Press Note No 3 (2009 Series), Government of India, URL: http://siadipp.nic.in/policy/changes/
pn3_2009.pdf (Last visited on 2 June, 2010).
19 Press Note No 4 (2009 Series), Government of India, URL: http://siadipp.nic.in/policy/changes/
pn4_2009.pdf (Last visited on 4 June, 2010).
20 SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.

166 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
norms. 21 This was a complete ‘U’-turn by SEBI from its earlier position. In
July 2009 SEBI had through an ‘informal guidance’ exempted MTN from
making an open offer to Bharti Airtel shareholders. At that time, SEBI had
said an open offer would be triggered only once the GDRs issued to MTN and
its shareholders by Bharti Airtel were converted into local shares with voting
rights. 22 This informal guidance was one of the main pillars on which the deal
was being structured. This informal guidance seemed to suggest that SEBI
was in favour of the deal and necessary exemptions would be granted. In fact
the Securities Appellate Tribunal (SAT) even dismissed a Bharti Airtel
shareholder’s appeal against the informal guidance of SEBI on open offer
pertaining to the proposed Bharti Airtel-MTN deal. 23
This new amendment virtually changed the dynamics of the deal.
The amendment meant that the South African company would have to pay
around USD 6.6 billion (approx) as it had to buy an additional 20% stake in
Bharti Airtel while making an open offer to Indian shareholders. 24 This
change again changed the mechanics of the deal. This additional offer
requirement made the deal less valuable to Bharti Airtel as it would mean
further dilution of its stake in favour of MTN and more cash outflow for
MTN. This position was unacceptable to both the parties.
THE AFTERMATH
The USD 23 billion deal for the merger of Bharti Airtel and MTN fell through
finally on 30 September, 2009. All the issues discussed above seem to have
been the deal-breaker during the tough negotiations which lasted well over a
year. While announcing the calling off of the talks, Bharti Airtel expressed the
hope that the South African government will review its position in the future
and allow both companies an opportunity to re-engage. 25
Both the companies since then have worked on their separate
strategies to achieve their respective objectives. Bharti Airtel in January 2010
announced a deal to acquire 70% stake in Bangladesh based Warid Telecom.
21 A. Bahl, ‘Sebi amends takeover code: may affect Bharti-MTN’, Live Mint, 23 September 2009, URL:
http://www.livemint.com/2009/09/23003600/Sebi-amends-takeover-code-may.html (Last visited on 2
June, 2010).
22 ‘Takeover Code change to impact Bharti-MTN deal’, Business Standard, 23 September, 2009, URL:
http://www.business-standard.com/india/news/takeover-code-change-to-impact-bharti-mtn-deal/21/29/
370971/ (Last visited on 17 May, 2010).
23 R. R. Prasad, ‘SAT dismisses appeal of Bharti Airtel shareholder on open offer’, The Hindu Business
Line, 29 August, 2009, URL: http://www.thehindubusinessline.com/2009/08/29/stories/
2009082950711000.htm (Last visited on 25 May, 2010).
24 A. Datta and A. Laskar, ‘Govt backs Bharti-MTN deal, FM says’, Live Mint, 23 September 2009, URL:
http://www.livemint.com/2009/09/23233726/Govt-backs-BhartiMTN-deal-FM.html (Last visited on 3
June, 2010).
25 ‘Bharti calls off $23-bn telecom deal with MTN’, Rediff Business, 30 September, 2009, URL: http://
business.rediff.com/report/2009/sep/30/tech-bharti-mtn-deal-called-off.htm (Last visited on 20 April,
2010).

AIRTEL’S AFRICAN TRYST 167
This is the largest investment in Bangladesh by an Indian company. 26 Bharti
Airtel also created a foreign expansion unit to continue its ambitious
expansion program. 27 Later Kuwait based telecom company Zain, accepted a
USD 10.7 billion offer from Bharti Airtel for Zain’s African assets. Zain’s
Africa assets include around 70 million customers. Zain’s reach is spread
across Africa and the Middle East. 28
On the other hand MTN could reopen merger negotiations with
Reliance Communications. The current proposal to MTN is similar to the one
in 2008 when Reliance Communications had proposed to merge with MTN by
swapping Anil Ambani’s 67% equity holding in the Indian cellular company
with MTN shares. If the deal eventually fructifies, Reliance Communications
will become a subsidiary of MTN while Anil Ambani could end up with a 20-
25% holding in MTN, making him its single-largest shareholder. 29 This
would help Anil Ambani circumvent the South African stock exchange
regulations as if an offer is for 35% of a company it triggers the rules whereby
that buyer of the South African company must extend the offer to other
shareholders. 30
It does seem that both the companies have moved on from the failed
deal but certainly this deal’s exceptional potential because of the market
penetration opportunities available in the African markets and the low cost
model running experience of Bharti Airtel cannot be ignored. However due to
the multitude of legal issues involved in both the countries coupled with the
need to protect the national identity of the two corporates involved in their
respective home territories, led to the downfall of an alliance which could
have easily been called as a ‘match made in heavens’.
26 N. Mookerji, ‘Bharti seals Warid Telecom deal’, DNA India, 13 January, 2010, URL: http://
www.dnaindia.com/money/report_bharti-seals-warid-telecom-deal_1334087 (Last visited on 4 May,
2010).
27 ‘Bharti Airtel creates unit for foreign expansion’, The Economic Times, 13 January, 2010, URL: http://
economictimes.indiatimes.com/news/news-by-industry/telecom/Bharti-Airtel-creates-unit-for-foreignexpansion/articleshow/5440449.cms
(Last visited on 22 April, 2010).
28 A. N. Ghaswalla, ‘Zain accepts Bharti offer’, The Times of India, 15 February, 2010, URL: http://
timesofindia.indiatimes.com/biz/india-business/Zain-accepts-Bharti-offer/articleshow/5574130.cms
(Last visited on 19 April, 2010).
29 ‘MTN to reopen merger lines with Anil Ambani’, The Economic Times, 1 June, 2010, URL: http://
economictimes.indiatimes.com/news/news-by-industry/telecom/MTN-to-reopen-merger-lines-with-Anil-
Ambani/articleshow/5996604.cms (Last visited on 2 June, 2010).
30 ‘Reliance-MTN Deal Offers an Opportunity for Private Equity’, The Wall Street Journal, 24 June, 2008,
URL: http://blogs.wsj.com/deals/2008/06/24/reliance-mtn-deal-offers-an-opportunity-for-private-equity/
(Last visited on 27 May, 2010).

169
Limits of fair dealing with literary works in India
ABSTRACT
A. Goel*
In this essay, I seek to briefly juxtapose the fair dealing and fair use defences
to copyright infringement and argue that under the Indian Copyright Act,
1957, the narrower exception of fair dealing is envisaged and not of fair use.
1. INTRODUCTION
Copyright protection in India is granted to original literary, dramatic, musical
and artistic works; cinematograph films and sound recording. 1 For our present
purposes, literary works are important. Although there is no definition of what
constitutes a “literary work” under the Copyright Act, the classic definition of
Peterson J. is generally regarded as a good one, which is that “literary work”
refers to written or printed matter. 2 To bring the Act in line with the TRIPS
obligations, 3 the Parliament amended the Act to bring computer programmes,
tables and compilations including computer databases within the scope of
“literary works”. 4
Once a copyright is granted, the holder is given certain exclusive
rights like those of reproduction, performance, translation and adaption. 5 Any
exercise of these exclusive rights by a person not granted a licence 6
constitutes infringement. 7 However, the statute provides certain exceptions, to
which the defendant may take recourse in an infringement suit brought against
him. 8 These exceptions have been incorporated in order to protect the right to
freedom of expression guaranteed under the Constitution of India. 9 One of
these many defences is “fair dealing” 10 against claims of infringement of
copyrighted material.
B.A. LL.B. (Hons.), National Law School of India University, Bangalore; Advocate, Punjab and Haryana
High Court, Chandigarh.
1 Section 13, Indian Copyright Act, 1957 (“Copyright Act”).
2 University of London Press v University Tutorial Press Ltd., (1916) 2 Ch. 601, approved by Satsang v
Mukhopadhyay, AIR 1972 Cal 533.
3 Article 10, TRIPS (Marrakesh Agreement), 1994.
4 Section 2(o), Copyright Act.
5 Section 14, Copyright Act.
6 Licence is granted under Section 30, Copyright Act.
7 Section 51, Copyright Act. In RG Anand v Delux Films, AIR 1978 SC 1613, the Court held that an exact
copy of the original is not necessary, but there is infringement even if there are resemblances with the
original in large measures. The test for infringement laid down by the Court is this: to see if the reader,
spectator or viewer after having read or seen both the works is clearly of the opinion and gets the
unmistakable impression that the subsequent work appears to be a copy of the original.
8 Section 52, Copyright Act.
9 Article 19(1) (a), Constitution of India. See: Wiley Eastern Ltd. v Indian Institute of Management, (1996)
PTR 46 (Del).
10 Section 52(1) (a) and 52(1) (b), Copyright Act.

170 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
The raison d’être for such an exception is that an infringing use
which by allowing will cause greater public benefit than by denying it, must
be allowed. 11 Such an exception therefore is included so as to allow members
of the public to use copyrighted work fairly without the requirement of a
consent or licence from the copyright-holder. In very broad terms, therefore,
the exception seeks to allow fair use of copyrighted material because curbing
it would mean impinging on the fundamental right to freedom of speech and
expression. In other words, this exception is to balance two competing
interests – on the one hand, the monopoly of authors which acts as an
incentive to create, and on the other, that such a monopoly must not come in
the way of creative ability of others or the right of the public to build upon
previous works. 12
2. “FAIR USE” AND “FAIR DEALING” COMPARED
As already stated, fair dealing of copyrighted work does not amount to an
infringement under the Copyright Act. Although it has been generally assumed
that fair dealing is roughly equivalent to its American counterpart of fair use,
the latter has a wider scope in that it is not restricted to specific purposes. 13
According to Section 107 of the US Copyright Act, 1976, there are four factors
for determining ‘fair use’, viz., (i) purpose and character of work; (ii) nature of
copyrighted work; (iii) amount and substantiality of the portion used; (iv)
effect on market value of the original. 14 On the other hand, fair dealing is
restricted to only the purposes allowed in the Act, viz., ‘private use including
research’; criticism and review; and reporting current events.
The American concept of fair use has been contested on the ground
that it is not in line with the TRIPS requirement 15 confining the limitations or
exceptions to the Berne three-step test, 16 which is that reproduction is
permissible only in certain special cases and that it must not conflict with the
normal exploitation of the work and must not unreasonably prejudice the
legitimate interests of the copyright-holder. Now, the charge leveled against
11 Newby, T.G., “What’s Fair Here is Not Fair Everywhere: Does the American Fair Use Doctrine Violate
International Copyright Law?” 51 Stan. L. Rev. 1633 (1999). See also: Sony Corporation v Universal
Studios, 464 US 417, 479-480 (1984). There are jurists who have justified the fair use doctrine in a
Lockean framework. See: Damstedt, B.J., “Limiting Locke: A Natural Law Justification for the Fair Use
Doctrine”, 112 Yale L.J. 1179 (2003). Some authors also argue that fair use doctrine does not in any way
protect freedom of speech, see: Lockridge, W., “The Myth of Copyright’s Fair Use Doctrine As a
Protector of Free Speech”, 24 Santa Clara Computer & High Tech. L.J. 31 (2007).
12 Kartar Singh v Ladha Singh, AIR 1934 Lah 777; Eastern Book Co. v Navin Desai, AIR 2001 Del 185.
13 Griffiths, J., “Preserving Judicial Freedom of Movement–Interpreting Fair Dealing in Copyright Law”,
[2000] IPQ 164. See also: Copinger and Skone, J., Copyright, Volume I (Sweet & Maxwell, London: 15 th
edition, 2005) 481.
14 For a good analysis of American law on fair use, see: Fisher III, W.W., “Reconstructing the Fair Use
Doctrine”, 101 Harv. L. Rev. 1659 (1988).
15 Article 13, TRIPS (Marrakesh Agreement), 1994.
16 Article 9(2), Berne Convention for the Protection of Literary and Artistic Works. See: Heide, T., “The
Berne Three-Step Test and the Proposed Copyright Directive”, 21(3) EIPR 105 (1999).

LITERARY WORKS IN INDIA 171
Section 107 is that it does not satisfy the first (specific cases) and the third
(unreasonably prejudicing the author’s legitimate interests) requirements of
the three-step test due to its open-ended guideline nature. 17 The reason for not
enumerating the purposes for which copyrighted work may be fairly used is
that in view of rapid technological advancement, Courts must be free to adapt
the doctrine on a case-by-case basis. 18
Different from this is the fair dealing concept, which was inserted in
the UK legislation in 1956 and retained in 1988, 19 and permits fair dealing for
three purposes, viz., research or private study; criticism or review; and
reporting current events. The concept of what is ‘fair’ in fair dealing is
difficult to define. Though it is recognised that it is a question of degree, it
depends on various factors, like the quantity and proportion of original work
used and the use made of them. 20 Similar principles to assess ‘fairness’ have
been followed in India. 21
Additional fetters have been placed on fair dealing in the UK, to
bring it in line with the TRIPS requirements – the Act was amended to further
limit the fair dealing for research or private study in two ways – that it must be
for a non-commercial purpose, and that it must be accompanied by sufficient
acknowledgment. 22
The Indian Act is also based on the fair dealing concept, as opposed
to the American fair use approach, as it limits the purposes for which fair
dealing is allowed. Therefore, in the present circumstance when the law on
fair dealing has not been subject to much judicial examination, it is advisable
to prefer the UK approach to the US approach in understanding the Indian
position.
Having examined the scope of the fair dealing provisions in the
Indian Act generally, I will now divide the cases existing under two heads:
first, for the purposes of ‘private use, including research’, criticism or
review’ 23 and second, for reporting current events. 24 It is noteworthy that both
Section 52(1)(a) and Section 52(1)(b) exclude computer programmes, despite
the fact that computer programmes are literary works. This is because they
have a different set of fair dealing provisions in the Act. In the case of
computer programmes, fair dealing in the form of reverse engineering or
temporary backup is recognised as non-infringing for limited purposes as
17 Ricketson, S., “WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the
Digital Environment”, 5 April, 2003, WIPO Doc. SCCR/9/7, p. 67-69.
18 Lewis Galoob Toys v Nintendo, Inc., 964 F.2d 965. See also: Weinreb, L.L., “Fair’s Fair: A Comment on
the Fair Use Doctrine”, 103 Harv. L. Rev. 1137 (1990).
19 Section 29, 30, Copyright, Designs and Patents Act, 1988 (“CDPA”).
20 Hubbard v Vosper, [1972] 2 WLR 394 [per Lord Denning, MR].
21 S.K. Dutt v Law Book Co., AIR 1954 All 570; Civic Chandran v Ammini Amma, (1996) PTC (16) 670
(Ker).
22 Section 29, CDPA, amended by Section 9, Copyright and Related Rights Regulations, 2003.
23 Section 52(1) (a), Copyright Act.
24 Section 52(1) (b), Copyright Act.

172 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
analysis, inter-operability, and protection against loss and for non-commercial
personal use. 25 All these provisions rely on the same basic principle behind
fair dealing, which is that fair dealing must be permitted for non-economic
purposes of study and analysis, but if they affect the copyright-holder’s
market adversely, they must not be allowed.
3. FAIR DEALING FOR “PRIVATE USE,
INCLUDING RESEARCH”, “CRITICISM OR
REVIEW”
Section 52(1)(a) provides for fair dealing for these purposes. In Blackwood v
Parasuraman, 26 the High Court set forth the basic principles for determining
what constitutes “private use”. In that case, the defendant had published guides
for two of plaintiff’s books. Fair dealing for the purpose of private study was
claimed, but was rejected by the Court. The Court held that private study only
covers the student copying the book for his own use, and not circulation of
copies among other students. In other words, “private study” has been given a
restricted meaning. However, problems creep up if one notices the change in
wording from “private study” in the erstwhile legislation to “private use” in the
present one, which may mean to include almost any use with the copyrighted
material as long as it is fair. In such a circumstance, one can give a more
plausible meaning to the fair dealing exception here – by limiting the scope of
“fair” in fair dealing to include only those actions which have no intention to
compete with the original and which do not have any improper or oblique
motives.
An important departure can be witnessed from the UK Act, because
of the 2003 Amendment there inserting the non-commercial purpose and
sufficient acknowledgment requirements as aforementioned, and no such
corresponding riders existing in the Indian legislation. However, the concept
of fairness itself as has been understood implies that the nature of the fair
dealing must be such so as not to affect the pecuniary interests of the
copyright-holder by competing with him. The reason why perhaps such a
requirement does not exist in the Indian Act is because it is still of foremost
significance to encourage research and study, and regardless of whether such
research is carried out by commercial organisations for commercial purposes,
it must be encouraged. It might suffice to say here that India is not ready to
restrict research and study to only non-commercial uses and the scales must
25 Section 52(1) (aa) to (ad), Copyright Act. For the position in US, see: Rice, D.A., “Sega And Beyond: A
Beacon For Fair Use Analysis ... At Least As Far As It Goes”, 19 Dayton L.Rev. 1131 (1994). See also:
Asarch, C.D., “Is Turn About Fair Play? Copyright Law and the Fair Use of Computer Software Loaded
into RAM” 95Mich. L. Rev. 654 (1996). In UK, Section 28A, 29(4A) and 50BA, CDPA, inserted by the
2003 Amendment permit making temporary copies of computer programmes and observing, testing and
studying computer programmes.
26 AIR 1959 Mad 410.

LITERARY WORKS IN INDIA 173
tilt against the copyright-holder in this respect.
In Syndicate of Press University of Cambridge v Kasturi Lal, 27 the
defendant published three guide books with substantial reproduction from the
plaintiff’s books. The Court held that this was an infringement, not falling
within any of the exceptions, 28 because Section 52(1) (h) allows reproduction
for the purpose of answering questions to be answered in an examination, and
not questions and answers as a whole.
The exception of fair dealing for the purposes of criticism or review
came for consideration in Civic Chandran v Ammini Amma, 29 where the
Court held that even if the copying is substantial, it is excepted from
infringement if it is for the purpose of criticism. Criticism or review may
relate not only to the literary style, but also to the doctrine, philosophy, ideas
or events described by the author.
The situation in the English case of Sillitoe v McGraw-Hill Book
Co. 30 may fall within the purview of fair dealing in India, although it was held
not excepted there. In that case, the plaintiff had written three stories, and the
defendant had published three booklets in the nature of notes, reproducing up
to ten per cent of the original work. The Court held that despite the existence
of a disclaimer that the notes are not a substitute for the text, the notes did not
amount to fair dealing. Indian Courts have upheld similar fair dealing claims
in Forster v Parasuram 31 and Ramaiah v Lakshmaiah, 32 where publishing
guide books, even for a profit-making purpose have been held to be falling
within the fair dealing exception. Be that as it may, it is humbly submitted that
these cases are not correctly decided because the element of ‘fairness’ as
described above has not been paid due consideration, since these guides
clearly hamper the sale of the original works and compete with them, despite
their educational motive.
Parodies also fall within the purview of criticism, and constitute fair
dealing. 33 Parodies are a humorous form of social commentary, and while
deciding whether a particular work constitutes a valid parody, it must be
established that only that much work is to be copied as would be necessary to
remind the reader, listener or viewer of the original work. 34
27 (2006) PTC (32) 487 (Del).
28 s.52, Copyright Act.
29 (1996) PTC (16) 670 (Ker).
30 (1983) FSR 545 (ChD).
31 AIR 1954 Mad 331.
32 (1989) PTC (9) 137 (AP).
33 Campbell v Acuff-Rose Music, 114 S. Ct. 1164. For the normative aspects, see: Posner, R.A., “When is
Parody Fair Use?”, 21 J. Legal Stud. 67 (1992).
34 Woody Allen v National Video, (1985) 610 F Supp 1612.

174 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
4. FAIR DEALING FOR REPORTING CURRENT
EVENTS
Fair dealing with copyrighted material for the purpose of reporting current
events in print or broadcast media also accepts the infringer. 35 However,
compilation of addresses or speeches is not a fair dealing. 36 In Civic Chandran
v Ammini Amma, the Court laid down that the reproduction of the whole work
or a substantial portion of it as such will not normally be permitted and only
extracts or quotations from the work. Also, the quantity of extracts permissible
will vary from case-to-case. Fair dealing for reporting current events is
permitted because of the right to know, held to be a part of the right to freedom
of speech and expression. 37 In UK, the scope of this exception came for
consideration recently in Ashdown v Telegraph Group, 38 where a newspaper
had published extracts of a confidential diary minute of a political meeting. The
Court rejected the contention that this fell within the fair dealing exception,
because of the extent of reproduction made for the defendants’ commercial
interests. Having said that, it is submitted that right to privacy 39 and the right
to know must be balanced in such a manner that neither the public is left
unaware, nor is the citizen whose privacy has been impinged upon, is left
without legal recourse.
5. CONCLUSION
While examining the limits of fair dealing exceptions in Indian law, the basic
rule of statutory interpretation that “exceptions must be construed strictly and
strongly against the party trying to take the benefit” must be regarded. As I
have shown above, fair dealing as a defence is nothing but an exception carved
out from the general rule of infringement of a copyrighted work. This
exception is to ensure that giving a monopoly to the author of the work must
be balanced with the public interest of allowing taking on from there and
developing the work through research and study, as also with the right to know
by allowing dealing for the purpose of reporting current events. However, these
exceptions must be limited to the purposes permitted in the Act, and such acts
must be construed giving due regard to the rights bestowed on the copyrightholder
under Section 14, instead of a broad reading leaving room for judicial
creativity as it exists in American Copyright law. Such a strict reading is
evident from Blackwood v Parasuraman, 40 where the Court held that if the
35 Section 52(1) (b), Copyright Act.
36 Explanation to Section 52(1) (b), Copyright Act.
37 Reliance Petrochemicals v Indian Express Newspapers, (1988) 4 SCC 592.
38 [2001] EWCA Civ. 1142.
39 Also held to be a fundamental right within Article 21, Constitution of India. See: Gobind v State of M.P.,
(1975) 2 SCC 148.
40 AIR 1959 Mad 410.

LITERARY WORKS IN INDIA 175
purpose of reproduction is not one of those enumerated in the statute, the
question of fair dealing would not arise.
Further, since the defendant claims these defences, the burden of
proof must lie on him to prove that his infringing acts were fair dealing for the
purposes permitted under the Act. This burden of proof is a heavy one and
courts have held that the fair dealing must fall within the four corners of the
statutory provisions. The statutory provisions are based on these general
principles that fair dealing is acceptable as a defence only if the reproduction
is reasonable, “i.e.” it does not prejudice the potential sale of the original
work; if the purposes for which the reproduction has been done are among
those mentioned in the statute; there is not a substantial extent of copying or
appropriation of the research of the original.
In conclusion, I submit that fair dealing with a strict interpretation of
the purposes enumerated in the Act must be permissible, and the American
fair use approach must not be favoured. It must always be remembered that
freedom of speech and expression does not necessarily involve the
appropriation of another’s work.

177
RECENT LEGAL DEVELOPMENTS
LESOTHO
Q. Letsika*
L. Kometsi**
1. ACTS OF PARLIAMENT
1.1 LAND ACT NO. 42 OF 2010
The preamble of the Act sets out the main objectives of the Act as being to
provide for the grant of titles to land and conversion of titles to land, the better
securing of titles to land and its administration. Section 4 provides that all land
is vested in the Basotho nation. Section 6 sets out qualifications of persons
entitled to hold title to land. These include foreign enterprises for investment
purposes but Basotho must hold at least 20% interest in such an enterprise,
companies and partnerships wholly owned by Basotho and societies in their
different forms, international organisations for which Lesotho enjoys similar
reciprocity for purposes relevant to their activities and citizens of Lesotho.
Section 9 introduces a new form of title to land, namely sectional titles. The
right to sectional titles are enjoyed in a unit within a complex or building
without necessarily exclusively holding title to land on which the complex or
building is attached. Section 10 creates the presumption of joint titles in as far
as marriages in community of property are concerned.
The Act provides for the institutional framework for administration
of land. Section 11 establishes the office of the commissioner of lands. The
functions of the commissioner include the administration of land by keeping
accurate information and records, resolution of disputes relating to land,
levying of taxes on land and granting of consent to transactions relating to
land (Section 12).
In terms of section 14 allocation and revocation of land in the rural
areas are made by local councils in consultation with the chief both of whom
must have jurisdiction in the area. If the land allocated is to be used for
commercial or industrial purposes the local council is obliged to refer the
application for a grant of title to the District Council first. A person allocated
residential and agricultural land in a rural area is entitled to apply for a lease in
respect of that land (Sections 16 and 18). The commissioner of lands is
entitled to refuse to grant a lease if the land is not used in accordance with an
approved development scheme. If the refusal to grant a lease is based on the
* B.A., LL.B (Lesotho), LL.M. (Natal) Senior Lecturer, Faculty of Law, National University of Lesotho.
** B.A., LL.B (Lesotho), LL.M (Manchester) Lecturer, Faculty of Law, National University of Lesotho.

178 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
complaint that the allottee breached the conditions of the allocation, s/he is
entitled to remedy the breach failing which the allocation could be revoked. In
the event of revocation the allottee is entitled to challenge it by way of review
proceedings. Allocations relating to land in the urban areas follows almost the
same procedure except that in the event that the allocating authority has to deal
with commercial and industrial grants it must include a representative from the
ministry of trade and industry (Section 25). If land is available for title the
minister is obliged to publicise this fact in the gazette and the commissioner of
lands must publicise this fact in at least one of the newspapers circulating in the
country and invite applications for grant of title (Sections 26 and 27). A person
affected by the notice is entitled to object to the grant of title by challenging
such notice before a district land court within one month from the date of
publication (Section 28). Titles in the urban areas are held through a leasehold
system (Section 30). A lease can only be terminated if the lessee is in breach of
its terms and has failed to comply with a notice from the commissioner calling
upon her/him to remedy the breach within a reasonable specified period of time
(Section 37). Upon the expiry of the period of the lease the lessee is entitled to
the first option for a new lease over the land (Section 38). A lessee may
extinguish his/her rights to land by surrendering the lease or through
abandonment of land (Sections 39 and 43).
The Act authorises the government to expropriate land for public
purposes or in the public interest. The minister is entitled to set aside and
declare in a gazette land required for public purposes after consultation with
the allocating authority (Section 48). The Act sets out circumstances that are
considered to be in the public interest or for which land may be acquired for
public purposes (Section 50 and 51). The state is obliged to compensate title
holders if their land is expropriated and the Act sets out the scheme of
principles which the state must uphold in expropriating land (Sections 52 to
60).
Finally, the Act provides for the scheme of regularisation. The
commissioner of lands after consultation with the chief and residents of the
area selected for regularisation must prepare a scheme of regularisation in
accordance with the regulations and in conjunction with an allocating
authority in whose jurisdiction the proposed scheme is to take place (Section
61). Upon approval of the scheme the minister declares the area to which it
applies in a gazette and thereafter the commissioner assumes responsibility for
implementing the scheme (Sections 61, 62 and 63).
1.2 EDUCATION ACT NO. 20 OF 2010
The main purpose of this Act is to make provision for free and compulsory
primary education (Section 3). Parents are obliged to enrol children aged six up

RECENT LEGAL DEVELOPMENTS – LESOTHO 179
to an age determined by the minister in independent or public schools. They are
obliged to provide learners with full opportunity and guidance to complete
primary education (Section 4 (b)). Attendance at schools is compulsory and
learners are obliged to attend their school every day. Learners can only be
absent if parents provide reasons acceptable to a principal or if a school where
the learner attends gives notice to a parent that the learner has been excused
from attending classes on the grounds that the learner is suffering from an
infectious or contagious disease (Section 6). Where a learner fails to attend
school regularly the parent of such learner becomes liable to a criminal
conviction, which may attract community service, fine or custodial sentence
(Section 6(5)). All schools must be registered in accordance with the provisions
of the Act (Section 7). The Act establishes an inspectorate of schools whose
main function is to supervise schools. The inspectorate inspects the work of
each school annually, monitors effectiveness of tests and examinations,
appraises performance of principals of schools and performs other functions as
the minister may prescribe (Section 18).
The management of schools is undertaken by school principals
(Section 20). In terms of section 21 schools are governed by the school
boards. The Act also establishes the Education Advisory Council whose role
is to advise the minister about school curriculum, terms and conditions of
service for teachers, funding of schools and quality assessment (Sections 28
and 29). The Teaching Service Commission is another institution established
by the Act (Section 41). Its main functions are to appoint, promote, demote,
transfer and remove from office teachers whose salaries are paid by the
government (Section 42). Part X of the Act provides for the appointment,
promotion, demotion, transfer or removal from office of teachers other than
those teachers whose salary is paid by the government. Any disputes of
interest arising in relation to the application of the Act must be conciliated by
the Conciliation Board (Section 59). Disputes of rights are resolved through
arbitration (Section 68). The Act establishes the Teaching Service Tribunal,
which deals with appeals instituted by a teacher, a trade union or employer
arising from a grievance and disciplinary action.
1.3 WATER AND SEWAGE COMPANY
(PROPRIETARY) LIMITED (ESTABLISHMENT
AND VESTING) ACT NO. 54 OF 2010
The purpose of the Act is to establish a government-owned company to be
known as Water and Sewerage (Proprietary) Limited (Section 3). After
incorporation of this company all the assets, liabilities, rights and obligations
of the existing parastatal known as Water and Sewerage Authority vest in the

180 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
new company (Section 4). All employees of the parastatal will be transferred
to the new company (Section 5).
1.4 LAND ADMINISTRATION AUTHORITY ACT NO.
43 OF 2010
This Act establishes the Land Administration Authority as a body corporate
with perpetual succession and common seal capable of suing and being sued in
its own name (Section 4). The main function of the authority is to act as the
government’s agency responsible for land administration. In discharging its
functions it operates under the general supervision of the minister responsible
for land affairs (Section 5). The authority is governed by a board of directors
(Section 6). The director general administers and is responsible for the daily
operations of the authority (Section 9). The board is responsible for appointing
such number and grades of heads of departments of the authority as the board
may deem necessary for the efficient and effective discharge of its functions.
The appointments are made on the recommendation of the director general. All
other officers and staff of the authority are appointed by the director general
(Section 21). In terms of section 27 of the Act all property which immediately
before the commencement of the Act was vested in the government for use in
land administration will vest in the authority upon the commencement of the
Act.
2. JUDICIAL DECISIONS
2.1 CONTEMPT OF COURT
Lerotholi Polytechnic and Another v Blandinah Lisene Court of Appeal Civil
Case No. 25 of 2009 (delivered on 11 June 2010) (unreported).
Mrs Lisene (the respondent) was dismissed from her employment as
a lecturer on the 12 March, 2007 following a disciplinary hearing at which she
was found guilty of gross misconduct. She referred a claim of unfair dismissal
to the Directorate of Dispute Prevention and Resolution (DDPR) for
arbitration. The DDPR dismissed the claim and found in favour of the
employer. Immediately after this the employer engaged the services of
another lecturer to replace the respondent. Being dissatisfied with the DDPR’s
award the respondent approached the Labour Court for an order reviewing and
setting aside the award. She was successful in this regard. The Labour Court
ordered reinstatement of the respondent and directed the employer to pay her
salary from the date of the purported dismissal. The employer appealed the
decision of the Labour Court. The Labour Appeal Court dismissed the appeal
and confirmed the decision of the Labour Court.

RECENT LEGAL DEVELOPMENTS – LESOTHO 181
The respondent presented herself at work the following day after
judgment was granted in her favour. The employer, being in a dilemma since
it had already replaced her position after the DDPR’s award, requested her to
stay at home until the question of what she could do was resolved. She was
also told that in the meantime arrangements would be made for the payment of
her salary together with arrear salary. The respondent was paid her back-pay
together with salary during the months she spent at home. Subsequent to this
she launched contempt of court proceedings against the employer in the
Labour Appeal Court alleging that instead of reinstating her, the employer
wanted to retrench her. The Labour Appeal Court held that the employer was
in contempt because it failed to allow the respondent to resume her teaching
responsibilities. The employer appealed this decision.
The Court of Appeal set aside the decision of the Labour Appeal
Court on the ground that the respondent failed to prove beyond reasonable
doubt that employer’s non-compliance with the reinstatement order was wilful
and mala fide. It held that the employer was in a dilemma after the
reinstatement order, but that the employer did not sit back when faced with
this situation. The appeal was therefore allowed.
2.2 SUCCESSION TO CHIEFTAINSHIP
Neko Tsepo Qefate Nkuebe v Minister of Local Government and Three Others
Court of Appeal Civil Case No. 41 of 2009 (delivered on 23 April 2010)
(Unreported)
This matter concerned a contest for the office of principal chief of
Quthing and Sebapala after the demise of the incumbent Chief Qefate
Nkuebe. The appellant (applicant in the court a quo) is the third son born of
the late Chieftainess Mahlabathe Nkuebe while the marriage between herself
and the chief was still subsistent. The family had nominated the fourth
Respondent (his eldest brother) as successor to the office of the chief. The
appellant applied to the High Court to stay the process leading to the final
succession to the principal chieftainship of Quthing and Sebapala pending
finalization of the matter. His basis was that he was the only legitimate son
and successor of the late chief. The appellant wanted an order, which would
subject him and the fourth respondent to a DNA test in order to bring this
matter to finality. This application was dismissed by the High Court.
On appeal the main issue was who was entitled to succeed to the
office of the chief. This question was decided on the basis of section 10 of the
Chieftainship Act No. 22 of 1968, which is to the effect that, the first born
legitimate son of the only marriage should succeed. The court noted that under
customary law, the fourth respondent would be regarded as the deceased’s
legitimate son because he was so accepted through customary rites. The

182 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
contention by the appellant was that the ultimate test contemplated by section
10 of the Chieftainship Act was not to be found under customary law but
under common law.
Applying the South African case of Surmon v Surmon 1926 AD 47,
the court opined that the fact that the fourth respondent was born during the
subsistence of the marriage between the deceased and his wife gave rise to a
rebuttable presumption of legitimacy. The onus of rebutting such a
presumption lied with the appellant as he was the one challenging the
legitimacy. On the basis of the common law as well as customary law
principles the court dismissed the appeal with costs.
2.3 CRIMINAL LAW – FRAUD
The Crown v Motsotuoa Bernard Ntaote Court of Appeal Criminal Case No.
13 of 2009 (delivered on the 23 rd April 2010) (unreported)
A deputy commissioner of the Lesotho Mounted Police Service
(LMPS) was indicted in the High Court on two counts of fraud in that he
misrepresented to the treasury, in respect of two separate international
journeys. First, he had represented that he was entitled to subsistence
allowance at the full daily rate. Second, that, inter alia, the minister had
authorized payment to him accordingly. It was alleged that he made all these
representations knowing that they were false and thereby induced the treasury
officials to pay him the full rate, while he was entitled to one quarter of the
rate. The court a quo returned the verdict of not guilty, hence the appeal by the
Crown.
On the first count the respondent had submitted claims in respect of
himself and the team with which he was going to the Republic of South
Africa. He subsequently discovered that he was going to be paid on a quarter
rate. He then approached the financial controller and demanded payment at
the full rate. He argued that he qualified for the full rate and he would bring
documentation to prove that he was so qualified. He continued to press the
financial controller for the full rate and the financial controller duly relented.
In respect of the second count an allowance of a quarter rate had been
authorized for the respondent as well as two other persons accompanying him.
Again respondent was said to have gone to the treasury to persuade them to
change the payment from a quarter rate into a full rate and this was done.
The respondent denied any wrong doing. The court held that, the
Crown failed to establish that the respondent was in no circumstance entitled
to the payment in full rate on the one count. Therefore that the first
misrepresentation that he was entitled to the full allowance was not proved.
The Court convicted him on the other count on the ground that the respondent
misrepresented to the treasury that the full amount was authorized by the

RECENT LEGAL DEVELOPMENTS – LESOTHO 183
minister. The appeal therefore succeeded in part. The matter was remitted to
the High Court sentencing.
2.4 DELICT – INJURIA (INVASION OF PRIVACY)
Francina Malefu Letsieloa v Ernest Lethoko Khobethi and Others Court of
Appeal Civil Case No.10 of 2009 (delivered on 23 April 2010) (unreported)
The appellant instituted maintenance proceedings in South Africa on
behalf of her children and herself. This matter did not proceed and was
removed from the roll on the basis that the appellant was a Lesotho national.
The appellant then claimed damages arising out of the first respondent’s
disclosure of confidential information concerning the appellant to a court in
South Africa. The appellant alleged that the disclosure was given in breach of
the first respondent’s oath of secrecy made in terms of regulation 106 of the
Public Service Regulations of 2005 and that as a result her claim for
maintenance in the said court had been removed from the roll. The appellant
further alleged that first respondent sent information in the form of a letter and
copies of pay-slips to an address in South Africa. The appellant contended that
the consequence of the first respondent’s action damaged her personality,
invaded her right to privacy, dignity and reputation. She therefore claimed
damages totaling R65 000.00.
The court held that the right to privacy does not depend on plaintiff’s
wishes, but rather that the boundary of the individual’s right or its
infringement remains an objective question. It then held that the information
communicated by first respondent to the South African court and the
appellant’s husband were neither offensive nor disparaging. The Court
concluded that the information was factually correct and was transmitted to a
judicial institution of a neighbouring state. The documents dealt with matters
that were germane and, indeed, essential to the determination of the issue with
which that court was concerned. Had the first respondent not disclosed those
facts, the appellant would have been obliged to do so herself in the
proceedings which she had instituted. The court held therefore that neither
was there injuria because there was no infringement of the appellant’s rights.
The appeal was therefore dismissed with costs.

185
1. INTRODUCTION
ZIMBABWE
J. Pfumorodze*
This paper seeks to discuss the recent legal developments in Zimbabwe in the
context of the Global Political Agreement, (GPA), an interparty agreement for
a power sharing government, and the Constitutional Amendment Number 19.
Its main focus is on the Constitutional Commissions four independent
commissions which were established by the Constitutional Amendment No 19.
These commissions are the Human Rights Commission; the Zimbabwe Media
Commission; the Zimbabwe Electoral Commission and the Zimbabwe anti-
Corruption Commission. Concerning these commissions, the main areas of
coverage are: establishment and composition of each of these commissions;
their functions and powers and what has been done to operationalise these
independent commissions.
2. BRIEF BACKGROUND AND CONTEXT
Since the year 2000 the political and economic situation in Zimbabwe has been
deteriorating very rapidly. Whilst the then Zimbabwe African National Union
(Patriotic Front) (ZANU PF) government blamed west imposed “sections” for
this bad economic situation, the then opposition Movement for Democratic
Change (MDC) blamed poor governance as the source of Zimbabwe’s
economic and political situation. This debate still rages on up to this day. By
the end of 2008, the political situation was very tense and the economic
situation was simply unbearable. This was exacerbated by the pre and post
2008 elections violence which left many dead, injured or houses destroyed. It
is in this context that the international community, especially the Southern
Africa Development Community (SADC), facilitated the GPA which paved
way for power sharing government and constitutional Amendment No 19. The
former paved way for the making of the new constitution whilst the latter
included important constitutional commissions. The focus of this update is on
the four constitutional commissions only.
3. THE HUMAN RIGHTS COMMISSION
The Constitutional Amendment No.19 provides for the Zimbabwe Human
Rights Commission (section 100R). This commission is consisted of a
* LLB.S (UZ); LL.M (Cume Laude) (UWC&Amsterdam); Lecturer, Department of Law, University of
Botswana. Email: jimpfumo@gmail.com

186 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
chairperson and eight other members, at least four of whom shall be women.
This ensures gender balance and is in line with the Zimbabwe’s Gender Policy.
The functions of this commission include promotion of awareness and respect
for human rights and freedoms; promoting the department of human rights and
freedoms; monitoring and assessing the observance of human rights in
Zimbabwe; investigating allegations of human rights violations and assisting
in the preparation of state reports to regional and international bodies
concerning human rights treaties conventions and agreements to which
Zimbabwe is a party.
In order to execute its mandate, the Commission is vested with
certain powers. These include the power to take over and continue any
investigation that has been instituted by the Public Protector, where it
determines that the dominant question in issue involved a matter pertinent to
its functions. Furthermore, the Parliament can make law which confess the
Commission with power to conduct investigations on its own initiative or on
receipt of complainants; to visit and inspect prisons, detention centres, and
refugee campus to assess the conditions it inmates are kept there conditions to
the appropriate minister. It has also the power to visit and inspect psychiatric
hospitals and rehabilitation centres and make recommendations to the
responsible minister. The Commission has the power to secure or provide
appropriate redress for violations of human rights and for injustice.
Members of the Human Rights Commission were sworn in on 31
March 2010. The Zimbabwe Human Rights Bill is being drafted by the
Ministry of Justice and Legal Affairs. This Bill seeks to provide for the
operationalisation of the Zimbabwe Human Rights Commission. It is also
anticipated that the Commission should have the power to comment on Bills
that may in one way or the other violate the human rights principles contained
in the Constitution or international treaties to the Zimbabwe is a party. This is
dome in consultation with the Parliamentary Legal Committee. The principles
of the proposed bill were approved on the 6 July, 2010 and drafting
instructions have been sent to the Attorney General’s Office.
4. THE ZIMBABWE MEDIA COMMISSION
The Zimbabwe Media Commission (ZMC) succeeded the Media and
Information Commission (MIC) which was set up by the Access to Information
and Protection of Privacy Act (AIPPA) in 2002. The provisions for this
Commission were incorporated into sections 100N to 100Q of the Constitution.
This Commission is composed of a “chairperson and eight other members
appointed by the President from a list of not fewer than we nominees submitted
by the Committee on Standing Rules and orders. For one to be appointed as a

RECENT LEGAL DEVELOPMENTS – ZIMBABWE 187
commissioner, he or she must have knowledge and experience in the press,
print or electronic media or broadcasting.
The main functions of the Commission are to uphold and develop
freedom of the press, to promote and enforce good practice and ethics in the
press, print and electronic media, and broadcasting; to ensure that the people
of Zimbabwe have equitable and wide access to information. It also to ensure
the equitable use and development of all indigenous languages spoken in
Zimbabwe.
Section 100Q of the Constitution of Zimbabwe provides that for the
powers of the ZMC it provides that an Act of Parliament may confer powers
on the ZMC including the power to conduct investigations and inquires into
any conduct or circumstance that appears to threaten the freedom of the
media. In addition, it has also the power to take disciplinary action against
journalists and other persons employed in the media industry, who are found
to have breached any law or any code of conduct applicable to them.
Members of the ZMC were sworn in by the President on 31 March
2010. It is note worthy that it was not necessary to pass another Act of
Parliament before the ZMC is set up. AIPPA, as amended in January 2008,
already contains ample provision enabling the Commission to carry out
functions conferred on it by the constitution and the additional functions
conferred on it by AIPPA. This commission is already operational.
5. ZIMBABWE ELECTORAL COMMISSION
This Commission is established in terms of section 100B to 100J of the
constitution. It is consisted of a chairperson and eight other people appointed
by the President. The chairperson is appointed by the President after
consultation with the Judicial Service Commission and the Committee on
standing rules and orders. The chairperson must be a judge or former judge of
the Supreme Court or the High Court, or a person qualified for appointment as
such a judge. Eight other members are appointed by the President from a list of
not fewer than twelve nominees submitted by the Committee on Standing
Rules and Orders. Of these eight at least four members must be women. This
ensures gender balance. For one to be appointable to this Commission he or she
must have integrity and experience and competence in the conduct of affairs in
the public or private sector. Members of the Commission are appointed for a
term of six years and their appointment may be renowned for one further term
only. Members of Parliament, public officers and employees of statutory
bodies and local government are disqualified for appointment to the Zimbabwe
Electoral Commission. Furthermore, members of the Commission must not be
members of the political party. The constitution also provides for the removal
of a member from office. The chairperson is removed from office by the

188 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
President, with the approval of both the Judicial Service Commission and the
Committee on Standing Rules and Orders. Other members are removed with
the approval of the Commission and the Committee on Standing Rules and
Orders. The grounds for removal from office include inability to exercise the
functions of member’s office due to physical or mental incapacity; misconduct;
incompetence and or if one becomes disqualified for appointment to the
Commission.
The Commission’s functions include preparation for, conduct and
supervision of elections to the office of the President and Parliament; to the
governing bodies of local authorities and referendums. It also compiles
voters’ rolls and registers, designs, prints and distributes ballot boxes; and
delimitation of constituencies and wards. Currently, the Bill which seeks to
operationalise the Commission is being drafted by the Attorney General’s
Office.
6. ZIMBABWE ANTI-CORRUPTION COMMISSION
Sections 100K to 100M provide for the establishment and composition of the
Zimbabwe Anti-Corruption Commission, its functions and powers. This
Commission should consist of at least four and no more than nine members
appointed by the President in consultation with the Committee on Standing
Rules and Orders. Members should be persons of integrity chosen for their
knowledge of and experience in administration or the prosecution or
investigation of crime.
The functions of this Commission include combating corruption,
theft, misappropriation, abuse of power and other inappropriate conduct of
affairs in both the public and private sectors. It also makes recommendations
to the government and to organisations in the private sector on measures to
enhance integrity and accountability and prevent corruption.
The Constitution further provides that Parliament should enact
legislation which confers powers on the Anti-Corruption Commission. These
powers include conducting investigations and inquiries, and to secure
prosecution of persons concerning corruption, theft, misappropriation, abuse
of power and other improprieties.
7. CONCLUSION
The four independent commissions discussed above are no doubt a welcome
development. Some of them are now operational whilst some are awaiting
legislation which operationalise them. At this stage, it is premature to judge the
effectiveness of these Commissions especially that Zimbabwe is still in

RECENT LEGAL DEVELOPMENTS – ZIMBABWE 189
transition. What can be said is that the power sharing government has worked
positively in coming up with these independent constitution commissions.

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