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 Periodical article |
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| Title: | Undefended Accused Persons, the Courts and Procedural Justice in Botswana |
| Author: | Molatlhegi, B. |
| Year: | 1998 |
| Periodical: | East African Journal of Peace and Human Rights |
| Volume: | 4 |
| Issue: | 2 |
| Pages: | 185-205 |
| Language: | English |
| Notes: | biblio. refs. |
| Geographic terms: | Botswana Southern Africa |
| Subjects: | criminal procedure legal aid Law, Human Rights and Violence law human rights Justice, Administration of judicial system Public defenders Legal protection |
| Abstract: | Botswana inherited the adversary system of criminal court procedure and evidence from England. Such a system can only achieve procedural and substantive justice if the parties are evenly matched. An undefended accused is put at a distinct disadvantage. Most accused persons in Botswana are not legally represented. Because of its passive role in the adversary system, the court refrains from intervening on behalf of the undefended accused. As a result of both the use of English as the language of procedure in the courts and the lack of formal training of court interpreters, the quality of justice is often a function of who happens to be the interpreter at the trial. This article discusses the duty of the magistrates courts and the High Court in Botswana to ensure that undefended accused persons are not denied their procedural rights. It deals with pre-trial rights; the right to legal representation; granting the opportunity to obtain legal representation; the right to call witnesses; the right to cross-examine; the guilty plea procedure; the duty to explain possible defences, options and the operation of presumptions; and the review process as a form of protection. The article concludes that to ensure procedural and substantive justice, trial courts must be more interventionist where the accused is not legally represented. The courts have a duty to ensure that the principles of the adversary procedure do not lead to injustice. This calls for more judicial activism. Notes, ref. |