Dibotelo to Rule On Constitutionality of Jos

| May 4, 2015

Chief Justice Maruping Dibotelo will, on May 29, deliver a ruling on whether it is constitutional for district commissioners and district officers to be appointed judicial officers.

This followed submissions by defence lawyer, Mr Gabriel Kanjabanga, representing Boitshwarelo Tau, who is accused of the murder of her boyfriend.

Mr Kanjabanga objected to the production of a confession statement commissioned by Mr Kabelo Tshekiso, who was a district officer based in Kanye at the time of the perpetration of the offence.

In his evidence, Mr Tshekiso had noted that he was a district officer based in Tutume sub-district and his job among other things involved taking down confession statements as judicial officers.

He further confirmed having noted a confession from Tau. However Mr Kanjabanga submitted that the gist of the accused’s objection was that whilst Section 8(3) of Magistrate Court Act enables the President of the republic to appoint district officers, many of whom had no training in law, as judicial officers, they were not judicial officers and therefore a confession noted by them didnot comply with the requirement of the accused’s rights to a fair trial under Section 10(i) of the Constitution.

He further submitted that if the confession was admitted as evidence, its admissibility would be a gross case of prejudice, injustice and breach of the accused’s rights to a fair trial, more so that it was taken by a person without the professional competence to be appointed a judicial officer.

Mr Kanjabanga further argued that the admissibility into evidence of the confession must be checked and tested against its consistency andor compliance with the constitutional rights of the accused.

He said if its admissibility is such that it results in accused person’s right to fair trial being violated then the confession recorded does not stand constitutional muster and should be refused.

In addition he told the court that the right to a fair trial covers the fact that evidence which ought to be used against an accused person must be fairly obtained.

“It is submitted therefore that as far as Section 8(3) of the Magistrate Court Act allows the appointment of district officers as judicial officers notwithstanding that they do not have the requisite professional qualification to discharge such functions, then the said provision is illegal, null and void in so far as it is inconsistent with Section 10(1) of the Constitution which requires accused persons to be afforded a fair trial and the latter would mean that those who discharge judicial duties or functions either adjudicatively or as witnesses as it is the case herein under Section 8 of the Magistrate Court Act , they should have professional competence, ability and know-how of discharging such functions, otherwise any person who discharges such duties without the appropriate professional training especially in criminal trial is bound to cause violation of the right to a fair trial of those who are subject to a criminal trial”, he submitted.

In her submission in opposition to objection to admission of the confession statement, the prosecutor from the Directorate of Public Prosecutions (DPP) Ms Sally Boitumelo said the succeeding submissions are made premised on the basis that the defence does not dispute or challenge satisfaction of the test of admissibility with regard to the confession in question.

She said the defence contention that the confession was made before a person without legal qualifications and therefore inadmissible as being in violation of Section 10(1) of the Constitution relating to the right to a fair trial enjoyed by a person accused of a criminal offense, missed the point that unlike with regard to Judges of the High Court and the Court of Appeal the Constitution at Section 104 which gives the President power to appoint magistrates does not lay down required qualifications.

Ms Boitumelo therefore said there is nothing unconstitutional about Section 8(3) of the Magistrate Act and that by not laying down the qualifications for appointment of magistrates the Constitution was in any way making allowance for the possibility of appointment of magistrates without legal qualifications.

She therefore submitted that once it is established that a confession complies with the requirements of Section 228(1) such confession is admissible.

Source : BOPA

Source : Botswana Daily News

Category: Governance

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