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Attorney General v Ahmed (Criminal Appeal No. 42/202) [2003] BWCA 18; [2003] 1 BLR 158 (CA) (31 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 42/2002 High Court Miscra No. 65/2002
In the matter between:
Appellant
THE ATTORNEY GENERAL
Respondent
And
WASIM AHMED
Mr. L. Z. Ngcongco for the Appellant
Mr. D. Bayford with J. Salbany for the Respondent
JUDGMENT
CORAM: TEBBUTT JP ZIETSMAN JA SUTHERLAND JA AKIWUMI JA GROSSKOPF JA
LORD SUTHERLAND J.A.

The appellant is awaiting trial on charges of kidnapping and related matters. He is charged along with five co-accused. In the course of preparation' for the trial, his attorneys have sought to obtain from the prosecution copies of witness statements and a variety of other documents contained in the police docket. In August 2002 the Assistant Attorney

General intimated that the State refused to supply any of the documents requested. The respondent then made an application to the High Court seeking a declarator that the State's refusal to supply the documents constituted a violation of his right to a fair hearing guaranteed by section 10 of the Constitution and a declarator that he was entitled to be provided with these documents. The application came before Collins J who in an exhaustive, well reasoned and pellucid judgment gave his reasons for ordering that the State provide to the respondent copies of all the State witnesses' statements as well as documentary evidence in possession of the State and/or the police pertaining to the charges against the respondent. It is against that decision that this appeal is taken.

I should say at the outset that I find myself in complete agreement with everything said by Collins J. This makes it unnecessary for me to analyse the relevant authorities in detail, as this has already been done. I shall therefore confine myself to giving a brief summary of the salient features, a summary of the criticisms advanced by the State, and reasons for rejecting those criticisms.

It is accepted that there is no general duty at common law for the prosecution to disclose witnesses' statements, or, putting it another way, the prosecution has a general right to claim privilege against such disclosure. See R v Steyn 1954 (1) SA 324 (A); Kenosi v State [1993] BWCA 3; 1993 BLR 268. These cases, and Motsumi v The State 1996 BLR 905, did not deal with the constitutional implications. In terms of Section 10 of

3
the Constitution, a person charged with a criminal offence is entitled to
have his case afforded a fair hearing, and "shall be given adequate time
and facilities for the preparation of his defence." These provisions must
be read along with section 3 of the Constitution which provides :

"Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest to each and all of the following, namely -

(a)

life, liberty, security of the person and the protection of the law;

(b)

freedom of conscience, of expression and of assembly and association; and

(c)

protection for the privacy of his home and other property and from deprivation of property without compensation,

the provisions of this chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."

It was argued by Mr. Ngcongco for the Attorney General that Section 3 is the key provision under which all rights and freedoms protected under Chapter 2 must be subsumed. He founded on the dicta in Attorney-General v Unity Dow 1992 BLR 119 and in particular what was said by Amissah JP at p 134;

"The wording is such that the rest of the provisions of Chapter 2.... have to be read in conjunction with Section 3. They must be construed as expanding on or placing limitations on section 3, and be construed within the context

of that section. As pointed out before, the wording of section 3 itself shows clearly that whatever exposition, elaboration or limitation is found in sections 4 to 19, must be exposition, elaboration or limitation of the basic fundamental rights and freedoms conferred by section 3. Section 3 encapsulates the sum total of the individual's rights and freedoms under the Constitution in general terms, which may be expanded upon in the expository, elaborating and limiting sections ensuing in the Chapter."

Mr. Ngcongo took from this that because any section from 4 to 19 must be read along with section 3, it follows that every one of these sections must have the implied section 3 limitation that the enjoyment of these rights and freedoms shall not prejudice the rights and freedoms of others and the public interest. In my opinion this argument proceeds on a misreading of section 3. The first word in the section is "whereas". If ever a word is redolent of a preamble, this is it. The section from the beginning down to the end of ( c) appears to be declaratory of all the fundamental rights to which a citizen of Botswana is entitled. After this preamble there follows the substantive part of the section which gives effect to the declaration and aspirations contained in the preamble. It also deals with the permissible limitations on such rights and freedoms, but it does so in a specific way. It provides that the provisions of Chapter 2 have effect for the purpose of affording protection to the rights and freedoms specified in the preamble "subject to such limitations of that protection as are contained in those provisions." It follows therefore that one must look at each individual provision to see if it contains any limitation. No relevant limitations are contained in section 10(2). Provisions in a Constitution which entrench fundamental rights and freedoms are to be given a

generous and purposive construction (Attorney General of The Gambia v Momondou Jobe [1984] AC 489; Attorney General v Unity Dow (supra)

and should not be cut down by reading implicit restrictions into them (Attorney General v Moagi: 1982 (2) BLR 124.) I therefore agree with the judge a quo that on a proper construction of Section 3 and in the absence of any specific limitations in section 10(2), no implied restriction should be read into section 10(2).

Contained in a constitution there may well be provisions which require construction. In the present case it is necessary to decide what concepts are included in a "fair hearing" and what is meant by the word "facilities" in section 10(2) (c). In considering what is the proper interpretation of such provisions, the courts in this country cannot ignore interpretations of such concepts in other jurisdictions. Obviously this court is not bound by foreign decisions, which must be looked at carefully in case they are based on local specialties. Thus, South African decisions on disclosure of documents have to be treated carefully, because since 1993, section 23 of the Constitution of that country provides for right of access to all information held by the State in so far as required for the protection of an individual's rights. It would however be unrealistic and wrong not to obtain such assistance as one can from international trends and liberal democracies as exemplified by decisions in cases involving fundamental rights and freedoms. That this is the position in Botswana is clear from what was said by Aguda JA in Attorney General v Dow (supra) p. 168:

"....we cannot afford to be immune from the progressive movements going on around us in other liberal and not so liberal democracies such movements manifesting themselves in international agreements, treaties, resolutions, protocols and other similar understandings as well as in the respectable and respected voices of our other learned brethen in the performance of their adjudicatory roles in other jurisdictions."

Before turning to the interpretational issues, it is useful to remember the role of the State in the prosecution of a criminal charge. It is not the function of the prosecution to obtain a conviction by any means fair or foul. It is not their function to conduct proceedings in such a way that the accused is ambushed and kept in the dark about critical issues until the last possible moment, whereby his ability to prepare a proper defence is severely hampered. It is not their function to conceal from the defence evidence in their possession which might be of assistance to the defence. It is the duty of the prosecution to lay before the court all the evidence which is relevant to the issue, whether favourable to the prosecution or favourable to the defence. It is also their duty to comply with the provisions of the Constitution which entitle an accused person to a fair hearing and adequate facilities for the preparation of his defence. If the prosecution do anything which contravenes these provisions, they will be acting in dereliction of duty.

It is accepted that one of the fundamental requirements of a fair hearing is that the accused shall have adequate time and facilities for the preparation of his defence. What is meant in this context by "facilities"? It

has been said to be a word of "very wide meaning" (Westminster City
Council v Ray Alan (Manshops) Ltd [1982] 1 WLR 383.) The definition
in the Shorter Oxford Dictionary(4th Ed) is "favourable conditions for the
easy or easier performance of something". It is a word which can have
different shades of meaning in different contexts. In the present context,
what is required is facilities "for the preparation of his defence". It can
hardly be doubted that the performance of that task will be made easier
by having knowledge of who the prosecution witnesses are and what they
are going to say. Similarly if the prosecution case is dependent in any
way on documentary evidence, it will be almost impossible to prepare the
defence without a copy of the relevant documents. In Vincent v R

[1993] 2 LRC 725 the Privy Council were considering a provision in the Constitution of Jamaica identical in terms to Section 10 (2). In relation to the definition of 'facilities' the following was said:

"While the language of that subsection does not require a defendant always to be provided with copies of the statements made by the prosecution witnesses, where the provision of a statement of a witness is reasonably necessary for such purpose, it should be provided as being a facility required for the preparation of his defence. This is in accord with the views of Forte JA expressed in the Court of Appeal in Jamaica in R v Bidwell, where he indicated that "facilities" would include a statement of a particular witness and added that "facilities must relate to anything that will be required by the accused in order to aid him in getting his defence ready to answer the charge." It follows that the present practice of refusing to provide to the defence statements of proposed witnesses to a prosecution, as a matter of course, is inappropriate."

Accordingly, in its context, I have no difficulty in finding that the word
'facilities' when used in section 10(2) is apt to cover the acquisition by the

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defence of statements from witnesses whether or not the prosecution
intends to call these witnesses, and the acquisition of copies of any
documents relevant to the charge. As the only person in a position to
authorise the supply of these statements and documents is the
prosecutor, it is the prosecutor who must supply them. After a careful
review of the authorities this is the conclusion to which the judge a quo
came and I agree with him. The particular authorities founded on by him
were R v Stinchcombe (1992) 68 CCC (3d) 1 and S v Nassar 1995 (2)
SA 82. Lengthy quotations from the judgments in these cases appear in
the judgment of Collins J and it would be a work of supererogation to
repeat them. Suffice it to say that they vouch the proposition that in
order to ensure a fair hearing and the provisions of adequate facilities for
the preparation of the defence, the prosecution should disclose to the
defence all witnesses' statements and the documents on which the
prosecution intends to found. This proposition is supported in South
African cases both before and after the introduction of section 23 of the
Constitution there (S. v Jiva 1991 (2) SA 52; S. V. Majavu 1994 (4) SA
268), in Zimbabwe (S. v Sithole 1996 (2) ZLR 575,) in Lesotho (Molepo
v D.P.P. 1997 (8) BCRR 1154), and in the Privy Council (Vincent v R.
(supra). It is true that in Vincent the Privy Council were not prepared to
lay down specific rules for Jamaica although making clear that disclosure
was appropriate. This was because of the dictum in Berry v R. [1992] 2
AC 364 that...

"The most suitable ways of achieving such fairness (which should not be immutable and require to be reconsidered from time to time) are best left to, and devised by the

9
legislature, the executive and the judiciary which serve their community and are familiar with its problems."
This Court does not require to be so inhibited.
Mr. Ngcongco raised a number of matters which he said should militate
against disclosure. It was said that witness statements are often
incomplete and inaccurate because they are taken by junior and
inexperienced officers and because of difficulties in translation. In my
opinion these problems cannot deprive an accused of his right to see
what is being said against him. Even if the statements are far from
perfect, half a loaf is better than no bread. It is then said that disclosure
gives the opportunity to an accused of fabricating a false defence . Also if
the defence know the names of prosecution witnesses they may take
steps to bribe or frighten them. These propositions, however, ignore the
fact that every accused person is presumed to be innocent until the
contrary is proved. The innocent accused should not be deprived of his
constitutional rights because some villains may take improper advantage.
The next objection is that the prosecution is already labouring under
substantial disadvantages through having to prove their case beyond
reasonable doubt, the accused's right of silence, and the absence of any
requirement for the accused to disclose the nature of his defence. Why
then should the accused be allowed "to rummage through the private
papers of the prosecuting attorney."? This proposition shows a grave
misunderstanding of the function of the prosecuting authorities. The
material ingathered by the State in the preparation for prosecution is not

the private property of the prosecuting attorney. As was said in Boucher v The Queen (1955) 110 CCC 263

"I would add that the fruits of the investigation which are in possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done."

It is also the duty of the prosecutor to ensure that even an accused
person's constitutional rights are not infringed. If the prosecution have to
suffer yet another disadvantage as a result, so be it. The specific
objections raised by Mr. Ngcongco therefore do not appear to me to have
any merit. It is not as though disclosure is a startling innovation in the
law of Botswana. Until 1971 committal proceedings were conducted by
way of preparatory examination at which an accused had the opportunity
to hear and cross -examine prosecution witnesses, and was entitled to
demand copies of the depositions. Indeed although this provision has now
fallen into desuetude since the institution of direct committal, it still
remains as part of the Criminal Procedure and Evidence Act (Cap 08:02)

The question then arises as to how far this disclosure must go. There may be special situations where some limitation must be necessary. If for example a witness' statement discloses the name of a police informer or information which could lead the accused to identify him, it is possible that that informant's life could be endangered. The State has the duty to protect its informant. The duty of disclosure and the duty to protect its informant clash. Despite the resounding words in Moagi (supra) that "Constitutional rights conferred without express limitations should not be

cut down by reading implicit restrictions into them, so as to bring them into line with the common law", some provision has to be made for such special situations. In my opinion the answer to this problem lies in the wording of Section 10 (2) (c) which provides that the accused shall be given adequate time and facilities to prepare his defence. I consider that the word 'adequate' applies to both time and facilities, and thus the provision is not absolute. If therefore the prosecution can show that they have good reason to exercise the privilege which is recognised in Steyn and Kenosi, and that the exercise of this privilege will not hamper the accused in the preparation of his defence, they may withhold the statement. It should be emphasised however that this privilege should only be exercised on rare occasions. As was said in S v Mayo 1990 (1) SACR 659 "The general rule is disclosure, privilege the exception." The judge a quo applied a similar restriction to the "police diary". I agree with him that this document should not normally be disclosed to the defence as it is likely to contain confidential matter which might bear on investigation techniques which the accused has no particular right to discover and which will not assist him in preparing his defence. If however there is a particular issue about which the defence need particular information, they would be entitled to ask for it and, again, unless the prosecution can justify privilege, it should be disclosed. If for example, the witnesses' statements disclosed to the defence throw up a discrepancy about the whereabouts of a police officer at a particular time, the defence may be entitled to seek disclosure of this information if it is contained in the police diary.

A further possible restriction on full disclosure has been recognised in most other jurisdictions. The present case is a serious High Court matter. Most cases are however brought in the Magistrates Courts. I entirely agree with the judge a quo that the principles relating to a fair hearing must be the same in both courts and a person accused is entitled to the same constitutional protection whether he is charged with murder or with speeding. However, the nature of what constitutes adequate facilities for the preparation of the defence may well differ as between these two types of offence. Accordingly as a matter of practice in other jurisdictions, in summary cases the prosecution do not serve on the defence the statements of all the witnesses, but merely those of crucial witnesses. Similarly the only copies of documents served are those which are critical for the prosecution. This is a sensible administrative practice which avoids overburdening the prosecution. It does not however detract in any way from either the right of the accused to ask for and obtain other statements and documents if he requires them for the preparation of the defence, or the duty on the prosecution to disclose to the defence matters upon which the prosecution does not intend to found but which may be of assistance to the defence. Part of the difficulty in this jurisdiction lies in knowing where to draw the line between cases which require the fullest disclosure and those in which the relaxed procedure will be appropriate. Many cases of a very serious nature which on conviction will attract long sentences are tried in the Magistrates Court. Therefore no distinction can be made simply between High Court and Magistrates Court cases. In

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guidelines set out in S v Angula 1997 (9) BCLR 1314, Strydom J.P.
suggested

"In respect of minor offences, involving no complexities of fact or law in which there is no reasonable prospect of imprisonment, and in which the accused can easily adduce and challenge the State evidence, disclosure should not necessarily follow. The same is applicable to routine prosecutions such as most traffic offences e.g illegal parking, etc."

The test of likelihood of imprisonment appears to me to be a suitable
point at which to draw the line. Accordingly, the principles which in my
opinion should govern disclosure are as follows: -

In proceedings in the High Court and proceedings for serious offences in the Magistrate Court, it is the duty of the prosecution to serve on the defence copies of all witnesses statements in the hands of the prosecution (whether or not the prosecution intends to call these witnesses) and copies of all documents on which the prosecution intends to found. This is an irreducible minimum. If there is other documentary evidence in the possession of the prosecution it should be made available to the defence unless it is considered that is has no relevance to the case.

In respect of proceedings for minor offences, which may be defined for this purpose as cases in which imprisonment is an unlikely outcome, the requirement for automatic service may be relaxed. As a matter of practice, statements of crucial witnesses should be served, but a summary of the rest of the evidence may suffice. Similarly, it may suffice to serve only documentary evidence which

is essential in the prosecution case. It must be clearly understood that this relaxation is not in any way to be regarded as suggesting that the constitutional rights of an accused in a minor case are less than the rights of the accused in most serious cases. It is however a recognition of the fact that what is required is adequate facilities for the preparation of the defence, and in a simple case the extent of the facilities required may be much less. It must also be clearly understood that if the accused requires further witness statements or documentary evidence for the purpose of proper preparation of his defence and asks the prosecution for them, it will be the duty of the prosecution to comply with such a request. 3. The two preceding paragraphs are to be read subject to the following qualification. In special circumstances, such as where disclosure will give rise to a real possibility of harm to a witness, or will disclose the identity of a police informer who is not a witness, or will disclose police investigative techniques, the prosecution may claim privilege. It is to be clearly understood that this privilege is only to be claimed in circumstances which are special to the particular case, and should not be claimed as a matter of course. In the event that the defence consider that the statement or document for which privilege is claimed is necessary for the purpose of proper preparation of the defence, it will be for the court to decide the issue. In all such cases, the onus will be on the prosecution to show that the claim for privilege is justified.

This appeal is dismissed, and the order of the court a quo will stand. Finally, I should mention that Mr Ngcongco requested that, if the court was against him, the implementation of any new regime should be postponed for some months. He founded on Minister of Justice v Ntuli (1997) 2 LRC 422, where the Constitutional Court of South Africa held that a section of the Criminal Procedure Act, which prohibited a convicted prisoner from prosecuting an appeal against conviction in person unless a judge certified that there were reasonable grounds for the appeal, was inconsistent with the Constitution. The court however suspended the declaration of invalidity for some sixteen months with an order that Parliament during that period should remedy the defect. Mr. Ngcongco suggested that this Court should follow the same course. In Ntuli however a specific section of an Act of Parliament was being struck down. In the present case what is being changed is a matter of procedure. While I appreciate that some administrative changes may have to be made in the Attorney General's Department in order to comply, it does not appear to me that this is such a major problem as to justify the continued deprivation of accused persons of their constitutional rights for any length of time, and therefore no order will be made suspending compliance.

LORD R. I. SUTHERLAND (JUDGE OF APPEAL)
DELIVERED IN OPEN COURT AT LOBATSE ON THE 31^ST JANUARY 2003.

I agree,

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P. H. TEBBUT (JUDGE PRESIDENT)

I agree,
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N. W. ZIETSMAN (JUDGE OF APPEAL)

I agree,
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A. M. AKIWUMI (JUDGE OF APPEAL)

I agree,
F. H. GROSSKOPF (JUDGE OF APPEAL)