ADDRESS BY THE MINISTER OF JUSTICE HONOURABLE MACHANA RONALD SHAMUKUNI DURING THE MEDIA BRIEF ON PROGRESS OF THE MINISTRY OF JUSTICE O THE16TH MAY 2023
1. Let me start by conveying my greetings to all the Listeners, and cordially welcome all the media houses present, to this esteemed Press Conference. It is meant to share our progress and deliverables for the year 2022/23 and commitment for 2023/24.
2. Let me hasten to state that the Ministry of Justice was established in 2022 following the Rationalisation of government portfolios and functions. The alignment and consolidation to a new Ministry has brought focused interventions, and elevated the justice mandate to create more targeted services, achievements and impactful delivery systems.
3. The mandate of the Ministry of Justice is to provide policy development, legislation, programmes and strategic direction on matters relating to justice. The mandate is implemented by Independent Departments and one Parastatal agency which are: the Administration of Justice (AOJ); Attorney General Chambers (AGC); Department of Public Prosecutions; Industrial Court; Office of the Ombudsman; Office of the Receiver; The Land Tribunal and Legal Aid Botswana. The mandate entails the following services:
• provision of judicial services;
• Provision of legal services;
• civil and criminal justice;
• administrative justice;
• protection and promotion of human rights, and;
• The promotion of alternative dispute resolution.
4. Ladies and gentlemen, it is our ultimate objective to ensure that Botswana is a just and law-abiding nation with an accessible and fair system of justice. In this respect the Ministry of Justice has succeeded in a number of programmes and initiatives;
5. I am proud to announce that since the inception of the Ministry, we managed to formulate a Strategy which is meant to ensure that we exert focused efforts towards addressing the compelling need to re-enforce confidence in our justice system, as well as improve the strategic focus on justice matters. The strategy also seeks to ensure that we build a justice system which is accessible and responds to the needs of the general public.
6. In order to improve service delivery in the justice sector, the Ministry committed to prioritize the following:
Review the relevant justice legislations with a view to ensure improved and equal access to justice services.
Develop legislations/policies with a view to ensure improved and equal access to justice services,
Review the Criminal Justice Sector
Conclude Extradition treaties and Mutual Legal Assistance treaties with strategic countries
Submit country reports in compliance with our international obligations to human rights treaties.
Digitization of the justice services
7. As I stand before you today, I wish to report the progress that we have so far made in achieving our goals as a Ministry.
a. With regards to reviewing the legislations with a view to provide accessible and fair system of justice for all. We have managed to pass through parliament the following;
i. Magistrates’ Courts (Amendment) Act (No. 22 of 2022). The amendment of the Magistrates’ Courts (Amendment) Act No. 22 of 2022 came into force on the 1st of August 2022. Magistrates Courts are created as subordinate courts to the High Court by the Magistrates Courts Act (Cap 04:04) which defines the functions, powers and jurisdiction of Magistrates. The Magistracy performs a pivotal role in the administration of justice and deals with criminal and civil matters.
The recent amendment seeks to ensure and improve public confidence in the justice system, enhance access to justice and to further diminish backlog of cases in the High Courts. Magistrates are now enabled to deal with matters that would otherwise be sent to the High Courts. The increased jurisdiction thus curtails the process of referring matters to the High Court for sentencing, thus providing certainty and finality to litigation in the Magistrates Court. With the enhanced powers of the Magistrates Court, cases would only proceed to the High Court on appeal or review.
ii. Legal Practitioners Act of 2022 (Cap 61:01): The Legal Practitioners’ Bill 2022 was passed in Parliament on the 1st August 2022. The Legal Practitioners (Amendment) Act, 2022 repealed and replaced the Legal Practitioners Act (CAP 61:01) to improve and where applicable, remove obsolete provisions affecting the legal profession in general. The Act seeks to ensure that the entire legal profession is defined by higher professional standards, integrity and with enhanced regulation.
b. Ladies and gentlemen, My Ministry has made progress in preparation of Bills for presentation to parliament. These are;
i. The Insolvency Bill of 2022, whose first reading was done in the budget session of the last parliamentary sitting. Following the enactment of the Movable Properties (Security Interests) Act of 2022, it became necessary to amend the Insolvency Act in order to ensure consistency. The Bill is intended to harmonise and align with best international practice and creditors’ preferences.
ii. The Serious Crimes of International Concern Bill, 2022 has been drafted and will be presented in the Legal Sitting of Parliament.
c. My Ministry continues to make progress on the status of legislation being drafted; These include the ongoing processing of the ;
i. Bail Legislation: Cabinet has authorised an Act to regulate bail. Further consultations will be undertaken to address the critical issues as well as solutions that enable the adoption of the implementation of this instrument should it be adopted.
ii. Deputy Sheriffs’ Legislation: Deputy Sheriffs, Court Bailiffs and Messengers of Court are officers appointed by the Registrar of the High Court in terms of the High Court Act. Deputy Sheriffs are appointed for the High Court, while Court Bailiffs and Messengers of Court are appointed for the Magistrates Courts. Their duties are to serve court processes which include documents such as Summons, Petitions, Applications and Writs of Arrest; executing writs of executions against movable and immovable property; and enforcing warrants of civil imprisonment. Currently, there is no legislation regulating these Court officers and over the years, there has been widespread concern and increasing public outcry on their operations and conduct.
iii. Penal Code (Cap 08:01) : As you may be aware, on 27th November 2021, the Court of Appeal of the Republic of Botswana made a decision in the case of the Attorney General and Letsweletse Motshidiemang – Court of Appeal Civil Appeal No. CACGB-157-19. Sections 164 of the Penal Code is being amended to comply with the Court of Appeal decision which held that criminalizing same-sex sexual conduct is unconstitutional as it violated the constitutional rights of lesbians, gays and transgender persons to dignity, liberty, privacy and equality;
iv. The Anti- Human Traficking Bill of 2022: The Bill is to be presented to cabinet after circulation for comments from stakeholders. The Anti-Human Trafficking Act of 2014 gives effect to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons. It provides for the prohibition, prevention and combating of human trafficking and also provides for measures to protect and assist victims of trafficking in Persons. The Bill addresses legislative deficiencies in the 2014 Act to among others; facilitate the attainment of minimum standards for the elimination of human trafficking. For instance, the 2014 Act allows for fines in lieu of imprisonment which is contrary to international best practice.
v. The Refugees (Recognition and Control) Act is being amended to strengthen the protection of asylum seekers and refugees, including introducing a provision for appeals of the decisions of the refugee status determining board;
d. My Ministry has partnered with development partners in the execution of some of its key deliverables, and I wish to commend the UNDP, UNHCR and the EU among others, for the support they continue to provide to facilitate the Justice sector. Currently we have the following ongoing projects;
i. Child Friendly Justice: The Government desires to reform the child-friendliness of its juvenile justice, uphold and protect children’s rights as stipulated in the Children’s Act and international treaties. This policy will ensure a justice system that guarantees the respect and effective implementation of all children’s rights at the highest attainable level, considering the child’s level of maturity, understanding and circumstances of their cases. Child-friendly justice, entails acceptable justice within the confines of the law, age-appropriateness, swift, diligent, and focus on the needs and rights of the child. Progress has been made to complete the project.
ii. Review of the Criminal Justice Sector: UNDP supports MOJ to conduct a comprehensive Criminal Justice Sector Institutional Review (scoping exercise, stakeholder consultations, review and roadmap). The Ministry has started a review project to conduct a baseline study and review of the criminal justice sector in Botswana, which will include key recommendations for reform to ensure a fair, efficient and effective criminal justice sector and access to justice for all. The product of the review is a roadmap to review process, laws and policies in the Criminal justice system to bring the system up to date.
iii. EU Botswana Dialogue Facility on Gender Mainstreaming within the Criminal Justice System: This is a Policy dialogue project on gender mainstreaming within the justice system funded through a partnership between Botswana and the European Union. This project is seeks to bring improvements to the justice sector by creating a system that recognizes and enforces human rights across gender considerations with a deliberate bias towards uplifting the vulnerable members of our society, thereby enhancing access to justice. The Draft Gender Mainstreaming Guidelines for the Criminal Justice System have been developed we expect the Guidelines to be finalised by end of May 2023.
e. In terms of our obligations to Special bodies and treaties ladies and gentlemen, let me high light that Botswana is signatory to a number of treaties and is obligated to a number of ratifications that we are party to. From time to time we submit reports and make ourselves accessible to the interventions of these bodies. As it stands right now Botswana has stood out in submitting and normalizing all reports to the UN bodies. Something to comment ourselves on.
i. On the 3rd May 2023, The Republic of Botswana underwent a fourth cycle Universal Periodic Review (UPR) during the forty-third (43th) session of the 4th Cycle of the Universal Periodic Review of the Working Group in Geneva, Switzerland. The Session took place in a hybrid format where United Nations Member States were able to deliver statements in person, via pre-recorded statements, or Zoom. The working methods of the Universal Periodic Review as set forth by the Human Rights Council is for Member States to refrain from issues of a political nature and territorial integrity, allowing for constructive engagement and feedback on actual concerns by Member States.
ii. Ladies and gentlemen without going into too much detail, I am compelled to explain in detail on the UPR as it generated a wide publicity for us in the past two weeks.
iii. Following my delivery of the Botswana Country Statement, 105 Member States made interventions which form the basis of recommendations. Furthermore, ten (10) Member States sent advance questions to facilitate the preparatory process for the review session allowing for the opportunity to ensure direct response to concerns from member States.
iv. In the statement, a wide range of human rights issues, mainly addressing questions that had been sent in advance by the States were addressed. The issues included but were not limited to the following:
• The recent nationwide consultations over Constitutional review;
• Ratification and domestication of treaties;
• Legislative developments;
• Measures taken to protect and promote the rights of specific groups such as women, children, people with disabilities, youth, LGBTIQ and the elderly;
• Policies and programs aimed at ensuring the progressive realization of socio-economic rights of the citizens and residents of Botswana. These include, the National Social Protection Framework, Rural Area Development Program, provision of safe drinking water and sanitation services, the right to health (including national HIV programs) as well as the right to education; and
• Botswana`s cooperation with Special Procedures and Mandate holders of the Human Rights Council. Notable is the countries cooperation with the Special Rapporteur on Extra Judicial, Summary or Arbitrary Execution in 2021 and hosting of the United Nations Working Group on Arbitrary Detention in 2022.
• The delegation highlighted that Botswana will continue to put in place measures aimed at improving her human rights situation, within the confines of her Constitution and other laws of Botswana. The delegation also committed to continue raising awareness to capacitate the people of Botswana on human rights issues.
v. Ladies and gentlemen, there was round commendation of Botswana on implementation of supported recommendations following the 3rd cycle review as well as progress on protection and promotion of human rights. Achievements pointed out included the ratification of the Convention on the Rights of People with Disabilities (CRPD), acceding to three (3) out of the four (4) of the Hague Conventions, establishment of the Ministry of Justice, enactment of the Ombudsman (Amendment) Act of 2021 to establish the office of the Ombudsman as a National Human Rights Institution, developing the Draft Comprehensive Human Rights Strategy and National Action Plan, establishment of the National human Right Coordinating Committee to foster meaningful engagement between government and the civil society, the on-going Constitutional Review process as well as the comprehensive social development and poverty reduction programs.
vi. On 5th May 2023, the UPR Working Group adopted the recommendations’ section of Botswana’s UPR report. Botswana undertook to examine all recommendations in consultation with relevant stakeholders and that she will submit her position on the recommendations before the 54th Session of the Human Rights Council.
vii. While there were some assertions from Omnia Strategy LLP and Advocate Dumisa Ntsebeza concerning reports on regression in Botswana’s human rights record as well as persecution of the Former President Seretse Khama Ian Khama, during the Pre- UPR session, the pre-session is not part of formal UPR process and therefore does not form part of the proceedings of the UPR process.
viii. After the presentation, some local and international media houses have gone ahead to present that Botswana was highly criticized for the current state of the Previous President Seretse Khama Ian Khama, however I wish to state for the record that none of the Member States made any reference whatsoever to Former President Lt Gen Dr. Ian Khama Seretse Khama and similarly none of the Recommendations from the review refer to the former President Khama. We have since made a rebuttal on this matter and note for the record the UN website provides that recording and correct facts on the UPR.
f. We have made progress on signing of Treaties on Extradition: The objective of a Treaty on Extradition is to enable the Parties to deport a person wanted for prosecution to face justice and/or prosecution. The Treaty outlines extraditable offences as well as the procedures to be followed to allow for this process to begin. The Treaty also facilitates cooperation in requests for the extradition of fugitives by enabling speedy response and cooperation within law enforcement networks.
i. Botswana signed an Extradition Treaty with Zambia on the 29th June 2022.
ii. Botswana has also signed Extradition Treaty with Mozambique.
iii. Negotiations have since been concluded with South Africa, and we since await the signing of the agreements on extradition.
g. Mutual Legal Assistance Agreements: A Mutual Legal Assistance (MLA) agreement is a legal instrument that facilitates cooperation by law enforcement agencies in handling cross-border crime; providing documents; records and articles of evidence; and making persons available for giving evidence or assisting in investigations amongst others. These instrument enable countries to effectively address a number of security related issues including transnational crime through enhanced cooperation within law enforcement networks.
i. Botswana signed agreements with Zambia and Mozambique in 2022, and we await the conclusion of agreements for South Africa.
8. Ladies and Gentlemen, as we look forward to the year 2023/24, I wish to commit that My Ministry will not deteriorate in the delivery of its mandate. My priority for the year includes focus on excellence in the following;
a. As Minister I have signed an agreement with His Excellency the President, committing on the priority deliverables that my Ministry will deliver.
b. To deliver a commercial Court
c. Improve project implementation
d. Address case backlogs in our institutions.
e. Digitization of the Justice System.
f. Outreach on the Justice Services.
9. In conclusion, I wish to assure the general public that my Ministry will continue to come up with strategies, programmes and policy initiatives to ensure that our ultimate objective of providing equal access and efficient justice for all is accomplished. We will further continue to be accessible to you.
10. Thank you for your attention.
Nelwang ke PULA betsho.