represented by junior and inexperienced lawyers. The Complainants submit that
since many people are poor in Botswana they cannot afford legal representation
and therefore rely on the pro deo system of legal representation which often
results in miscarriages of justice, as illustrated by Maauwe and Motswella v. the
State.12 The many weaknesses of the pro deo system were made clear in the
appeal case, Ditshwanelo v. Attorney General.13 The Complainants submit that
the pro deo counsel appointed by the Registrar in the above case failed to
effectively represent the accused person leading to his conviction and sentence to
death. Based on the inadequate legal assistance during the trial at the court
below, the convicts repeatedly requested for new lawyers when the matter went
on appeal, but the Registrar refused to act on these requests. They submitted that
it took the intervention of a Ditshwanelo appointed counsel for an order of stay
of execution to be issued. Subsequently, a mistrial was subsequently ordered.
Without the intervention of Ditshwanelo, the Complainants submit that the two
accused persons would have been executed.
52. The Complainants submit that the poor quality of legal representation for capital
offence cases in Botswana has attracted concerns from the United Nations
Human Rights Committee. As such the Complainants submit that it is not
sufficient to simply assign lawyers to capital offence cases as the pro deo system
relies to a great degree on inexperienced and underpaid young attorneys. The
Complainants therefore submit that to the extent that the pro deo system relies on
inexperienced and underpaid attorneys whereas wealthier defendants can
engage experienced and competent lawyers means that the decision whether or
not to impose the death penalty is arbitrary.
53. The Complainants also submits that the mandatory imposition of the death
penalty where there are no extenuating circumstances is arbitrary. In support of
12
13
Court of Appeal Criminal Appeal No. 9 of 1997
MISCRA Case No. 2 of 1999 (14 April 1999)
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