People’s Court just a forum - Experts
Witnesses not enjoying absolute protection Opposition parties just exercising right of freedom of expression
Lawgurus and scholars concur and advise that all witnesses who intend to give evidence at the proposed People’s Court organised by opposition parties will not be accorded qualified privilege by the law and can be sued for defamation.
They argue that court processes are privileged or covered by what is called qualified privilege, which means that one cannot be sued for defamation for what he or she said in a court of law.
University of Botswana lecturer, Professor Tachilisa Balule explained that witnesses that will give evidence in the People’s Court are not protected by any law. “This court is just like a forum, it will be like using a particular mode to express themselves. It is like when you are an actor then you go to a theatre to communicate to the public.
“I suspect that the opposition may have chosen this method, although they will be following the procedures that are normally followed in a court set up, but it will just be like they are imitating what is going on in a court of law, but it does not necessarily mean the privileges attached with those who are giving evidence in a court of law will also extend to them,” he warned. Balule said he has not seen how the structure of the people’s court is going to be like, but “my view was that this is a forum where those who are aggrieved by the elections results are going to come up publicly to support the allegations that the elections were rigged. “I guess that although it is said to be a court, but maybe it is going to be a simple forum where they are going to share whatever evidence they have. There is no special law in my view, which recognises such a forum,” he said. Besides that he said UDC has merely chosen a specific way to communicate with the public, which is basically exercising their right to freedom of expression. “But, of course exercising your right to freedom of expression in that way is not that you enjoy absolute protection so it may well be that if during the process, then comes an evidence which is defaming a particular individual, my understanding is that, that individual will still be entitled to pursue his remedies through the courts.
“There is no special protection for that because protection of what is uttered in parliament or in council chambers, these are things that are regulated by statute”.
Balule was however looking forward to “this thing” because as a citizen of this country, “I do not think it really augurs well for our democracy to have allegations that elections were rigged because that actually puts the legitimacy of our government in serious doubt.”
“Many of us do not know what evidence they have to make such allegations because under normal circumstances one would have expected that they would have noticed something at the time when the returns were being done and maybe they would have noted their objections then, but this is not to say evidence may not come afterwards saying elections were rigged.” According to him the only unfortunate thing is that the high court did not have the opportunity to interrogate the allegations because “if the high court had actually given an opportunity to interrogate those allegations maybe by now we will be having a clue at least something that is convincing whether those elections were rigged or not.” “I do not think the situation is actually helped by the fact that all these election petitions were lost at technicality on a procedural point of view. We never really got an opportunity to interrogate the substance of these allegations,” he said. Balule said the way opposition parties have chosen it could also be symbolic, or maybe they are expressing either their disapproval of the way court handled their petition, maybe they are choosing to communicate to the courts that the outcome was not fair. “Obviously from their perspective it is not fair because when you look at the petition procedure that needs to be followed, it is a unique procedure, but there are no regulations to guide the applicants on the content of what to file or not.
“That is why a lot of these papers faltered because I think they turned on what amounts to notice. The courts then said a notice should b detailed giving information what the witnesses are going to say”. Another prominent lawyer and former member of the opposition who spoke on condition of anonymity concurred with Balule. “I do not know of any precedent where the People’s Court has been done. But, for me it is a political exercise and obviously it has no legal status as a matter of fact.
“Courts of law are provided for their existence in the Constitution and other Acts of Parliament. This is a political creature, as I understand it, purely a political exercise that has no legal bearing or existence on anything. “The holding of this type of court will not be breaking any laws of the republic, it is part and parcel of one enjoying their freedom of expression, whether you abuse it or not. However it must be noted that in courts of law one is covered when giving evidence when it comes to issues of defamation and others,” he said. Another expert and constitutional lawyer explained that Botswana is a constitutional democracy founded on a constitution that was adopted at independence. He said the constitution is the highest legal guiding document in the country.
“This means that everything that is being done in the country either by the state, government, head of state, individuals, company or whoever, must fall within the four corners of the constitution”. He said the three arms of government are established by the constitution in what is known as the concentration of powers. He added that the concept of separation powers is well established in the constitution. The three arms of the state – executive ( Sec 30); Judiciary ( Secs 9- 107) and Parliament ( Sec 86) – the latter’s role being to make laws which conform to the constitution and for the peace, order and good governance of Botswana. There is also the Court of Appeal established under Section 99, which gives what is known as appellant powers. He said the judiciary includes the High Court, which is set up under Section 95 of the Constitution to preside over cases.
“Any other court outside this court cannot be recognised as a court, it is a foreign concept in this country. That is the position of the law in Botswana,” he said.
He could not say if conducting a People’s Court could attract any charges or not. “We will only know after the event because it will be followed or monitored. If in the process of running the so- called People’s Court an offence emerges, the appropriate law enforcement agencies will determine what offence has been committed,” he said.