PENALTY

assistance programmes. At the time of the murder, Botswana was experiencing
the severe drought of 1994-1995. The crops had failed, and
the families of the defendants had little to eat. The only animals in the
area which the families were legally allowed to hunt were squirrels,
but they had not been successful in finding any. Mr. Maauwe and Mr.
Motswetla killed a stray ox, and when the herdsman came across them
with the remains of the ox, a fight ensued and the herdsman was killed.
They were arrested for the murder.
During the original trial, some of the defendants’ court-appointed
lawyers never consulted them, a clear case of inadequate representation.
The prison log books did not contain any evidence of the
lawyers visiting their clients in prison. One of the pro deo lawyers
fled Botswana amid allegations of fraud. The other initially resisted
handing over his file to DITSHWANELO, until he was informed
that a court order would be sought. The file contained no consultation
or trial notes. Mr. Maauwe and Mr. Motswetla had not
been informed by their legal representatives about their options
under Botswana law—an accused can choose to remain silent or
give sworn testimony subject to cross-examination or an unsworn
statement not subject to cross-examination. While the latter can be
persuasive to the court, it has less evidentiary weight than sworn
testimony. Both men had given unsworn statements without being
informed of the implications. No substantive extenuating circumstances
were presented to the court following the handing down of
the death sentence. 9
In January 1999, DITSHWANELO intervened in the case upon
reading in the media about their impending execution. The judge
recognised that lack of resources and remoteness from centres of
development and communication can militate against an individual’s
access to human rights. He also recognised that certain “organisations
may have the ability to motivate the protection of individuals, who
may not be able to act for themselves in any meaningful way.” He
consequently recognised that DITSHWANELO had legal standing
in the case. 10
The two men were ultimately released in 2006, following the Court
of Appeal decision to grant a permanent stay, prohibiting the carrying
out of both men’s death sentences as well as any further criminal
proceedings against them in relation to the death of the herdsman.
Arrested in 1995, they were released seven years after coming to
within hours of their execution in 1999.
This case illustrates a number of the problems defendants can have
in accessing equal justice; these will be discussed further in the sections
below.
Access to representation
The Constitution guarantees the right to legal representation in
criminal cases at the accused’s own expense (Section 10). Statefunded
(pro deo) counsel is available for defendants charged with
a capital offence. The Government recognises that the fees paid to
counsel are not attractive compared with those that obtain in private
practice. The Registrar of the High Court has reportedly tried to
address the problem by instructing every law firm to take up one pro
deo case a year, but this has not resolved the problem of the quality
of representation for the indigent. 11 The University of Botswana runs
a legal clinic staffed by law students and supervised by a law lecturer
in an attempt to fill the void, but it is poorly resourced. A few NGOs
provide extremely limited legal aid for the indigent. In 2011, a Statefunded
Legal Aid Project was established. It is, however, limited to
civil matters.
The indigent experience discrimination as they are forced to rely
on a legal system to which their access is limited because of their
poverty and poor education. They are dependent on the pro deo
system, which tends not to attract skilled, experienced and committed
lawyers. Senior lawyers tend to refer pro deo cases to their junior
partners. The role of non-governmental organisations is critical in
facilitating access to justice for the poor.
9 Elizabeth Maxwell and Alice Mogwe, In the Shadow of the Noose (Gaborone, DITSHWANE-
LO, 2006), pp. 30 and 40.
10 Ibid., p. 42.
11 Botswana Initial Report to the United Nations Committee on Civil and Political Rights, 12 September
2005, Article 6 (Right to Life), p. 42.
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