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IN THE HIGH COURT OF BOTSWANA

HELD AT FRANCISTOWN

MAHFT-000004-12

DATE: 19 SEPTEMBER 2012

In the matter between:

KEAMOGETSWE MBISANA................................................................APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS..............................1ST RESPONDENT

ATTORNEY GENERAL..........................................................2ND RESPONDENT

Francistown, 16 May, 13 and 15 June, 23 July,

30 August and 19 September 2012.

T. Tshekiso for the applicant

A. S. Kula with her M. Dick for the first respondent

0. M. Moalosi for the second respondent

JUDGMENT

KETLOGETSWE J.

INTRODUCTION

1. This matter concerns a constitutional challenge to two provisions of the law found in the Criminal Procedure and Evidence Act Cap 08:02 which enjoin a magistrate to remand in prison custody an accused person charged with the offence of murder upon the latter’s committal for trial before the High Court.

2. The applicant in this matter, who is also the accused in the case before the magistrates’ courts, is an 83 year old adult citizen of Botswana. She faces a charge of murder contrary to s. 202 of the Penal Code Cap 08:01) of the laws of Botswana [hereinafter the Penal Code]. It is common cause between the parties in this matter that the applicant is alleged to have, and acting in concert and with common purpose with another person, who is not party to this matter, murdered one Thabani.

3. Following her first appearance before the magistrates’ courts the applicant was granted bail by the same court, pending her committal to the High Court for trial.

4. In terms of the impugned provisions of the Criminal Procedure and Evidence Act, upon her committal to the High Court, the magistrate will remand her in prison custody until her trial or she is released on bail.

5. The applicant’s contention is that the cancellation of her bail by the magistrate, upon her committal for trial before the High Court, is not preceded by any enquiry as to whether she is not suitable to remain on bail. It is automatic and predicated only on the fact that she has now been committed for trial on a charge of murder.

6. She contends that the impugned provisions of the Criminal Procedure and Evidence Act infringe upon her rights to liberty. Initially she had also contended that her right to be presumed innocent until proven guilty after a trial in a court of law was also infringed upon. Such infringement, according to her contention, breaches s. 5 and 10 of the Constitution of Botswana [hereinafter the Constitution], and that the impugned provisions of the Criminal Procedure and Evidence Act were therefore ultra vires the Constitution and should accordingly be struck down. The applicant has since abandoned her complaint predicated on s. 10 of the Constitution and no reference thereto will be made any more.

7. The locus standi of the applicant to bring this application has not been disputed.

8. The respondents in this matter are the Director of Public Prosecutions cited in his capacity as the prosecuting authority in criminal matters (where the State is the prosecuting party) and the Attorney-General cited in her capacity as the chief legal advisor of government and under whose advise the laws of the Republic are drafted, including the now impugned provisions.

9. The respondents’ dispute that the sections of the Criminal Procedure and Evidence Act impugned are ultra vires the Constitution and pray this court to dismiss the applicant’s application. Their position is premised on two grounds - firstly, committal for trial constitute a change of circumstances and second, murder is a serious offence and only triable at the High Court which by reason of committal, the latter assumes jurisdiction.

10. The facts founding this application are not in dispute. It is common cause that the applicant is an accused person in a case of murder preferred against her by the State.

11. It is also common cause that immediately before the launch of this application, the applicant was on bail, having been granted bail by the magistrate at Masunga Magistrates Courts on 7 November 2011.

12. It is further common cause that immediately before the launch of this application the applicant was due to be taken before the Magistrates’ Courts for her to be committed to the High Court for trial on a charge of murder and that following upon such committal she would be remanded in custody pending her trial at the High Court or until released on bail.

13. It is also not in dispute that between the time when she was admitted to bail by the magistrate up to the time immediately preceding the launch of this application, the applicant has not breached any of the bail conditions set at the time she was granted bail.

STATUTORY PROVISIONS

14. I think this is the opportune stage where I should set out in detail the impugned provisions of the Criminal Procedure and Evidence Act as well as those of the Constitution relied upon by the applicant in this matter. And because of the position adopted by the respondents, I will also recite the provisions of the law under which the applicant has been charged.

PENAL CODE

15. The applicant is charged with the offence of murder contrary to s. 202 of the Penal Code punishable under s. 203(1) which read as follows:

“202 Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.

203 (1) Subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death.

(2) Where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death.”

16. In my judgment, the offence of murder is a serious one, not only because it touches on the sanctity of the life of another person, but also because prima facie, it attracts the most serious of all known forms of retributive punishments, death. Thus, a person facing a charge of murder, with the knowledge of an imminent trial for same can reasonably be assumed to be living under the knowledge that they are within the firing range of a death penalty but for the saving provisions of s. 203(2) supra as well as

the benefit of an informed and reasonable legal advice that the death penalty, on all the known facts is a remote possibility in all probabilities.

THE CRIMINAL PROCEDURE AND EVIDENCE ACT AND THE CONSTITUTION OF BOTSWANA

17. The applicant has launched an attack on ss. 96(2) and 104 of the Criminal Procedure and Evidence Act. And in doing so, she has sought cover under the provisions of s. 5(1) of the Constitution. Her launching pad is s. 18(1) of the Constitution as read with Order 70 of the Rules of the High Court Cap 04:04 [subsidiary Legislation). Let me capture these provisions, and for completeness I will also recite s. 96(1).

“96. (1) Notwithstanding anything contained elsewhere in this Act the Attorney-General may, if he considers it desirable to do so, at any time and whether or not a preparatory examination has been commenced, serve upon an accused notice of his intention to indict him for trial before the High Court on a charge of any offences specified in such notice.

(2) A copy of the notice served under subsection (1) shall be served upon any magistrate having jurisdiction in the district in which a preparatory examination in respect of the offence could be or is being held and, thereupon, such magistrate shall cause the accused to be brought before him and shall, notwithstanding anything contained elsewhere in this Act, forthwith commit the accused for trial before the High Court in respect of the offence specified in such notice and commit the accused to gaol there to be detained until brought to trial before the High Court for the offence specified in the warrant or until admitted to bail or liberty in the due course of law. ...

104. Every person committed for trial or sentence in respect of any offence except treason or murder may be admitted to bail in the discretion of the magistrate:

Provided that -

(i) The refusal by the magistrate who has committed any person for trial, to grant such person bail shall be without prejudice to such person’s rights under section 113, and

(ii) The magistrate may admit to bail a person under the age of 18 committed for trial on a charge of murder.”

CONSTITUTION

18. Section 5(1) of the Constitution is in the following terms:

“5. (1) No person shall be deprived of his or her personal liberty save as may be authorized by law in any of the following cases, that is to say-

(a) In execution of the sentence or order of a court, whether established for Botswana or some other country, in respect of a criminal offence of which he or she has been convicted;

(b) In execution of the order of a court of record punishing him or her for contempt of that or another court;

(c) In execution of the order of a court made to secure the fulfillment of any obligation imposed on him or her by law;

(d) For the purpose of bringing him or her before a court in execution of the order of a court;

(e) Upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law in force in Botswana;

(f) Under the order of a court or with the consent of his or her parent or guardian, for his or her education or welfare during any period ending not later than the date when he or she attains the age of 18 years;

(g) For the purpose of preventing the spread of an infection or contagious disease;

(h) In the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his or her case or treatment or the protection of the community;

(i) For the purpose of preventing the unlawful entry of that person into Botswana, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Botswana, or for the purpose of restricting that person while he or she is being conveyed through Botswana in the course of his or her extradition or removal as a convicted prisoner from one country to another;

(j) To such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Botswana or prohibiting him or her from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during any visit that he or she is permitted to make to any part of Botswana in which, in consequence of any such order, his or her presence would otherwise be unlawful or; or

(k) For the purpose of ensuring the safety of aircraft in flight.”

19. It is to be noted that the applicant has not referred to any specific paragraph of s. 5(1) of the Constitution which she alleges his been infringed in relation to her. But, in my judgment it cannot reasonably be in relation to all the situations referred to under para (a)-(k) (both inclusive) of subsection (1) of s. 5. In my considered view, and regard being had to the facts of this case and its circumstances, the question is whether or not the applicant’s case does not fall to be considered as falling under the circumstance mentioned in paragraph (e) of subsection 1 of s. 5. I have read and re-read s. 5 on its own and also in relation to ss. 3 to 19 (both inclusive) of the Constitution, and I have not come across any other provision of the Constitution covering the applicant’s case aptly than para (e) of subsection (1) of s. 5. This is also the view held by the respondents in their opposition to the applicant’s application. The applicant has however, denied that her case is covered by s. 5(1) (e) as the respondents contend. I will revisit her contention in the course of this judgment.

RESPONDENTS’ CASE

20. The respondents, faced with the applicant’s constitutional attack, have sought refuge under the provisions of s. 5(1) (e) supra. It says

“No person shall be deprived of his or her personal liberty save as

may be authorized by law in any of the following cases, that is to

say-

(a) ...

(b) ...

(c) ...

(d) ...

(e) Upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law in force in Botswana;

(f) ...

(g) -

(h) ...

(i) ...

(j) - (k) ...”

21. Both in terms of their pleadings per the affidavit of Ms. K. Jeremiah, State counsel, and in terms of their submissions before this Court, this is the only ground upon which they rely to resist the relief bought by the applicant. And this is the case for the respondents which this Court should deal with.

22. The relief sought by the applicant is in the following terms, per her notice of motion:

“BE PLEASED TO TAKE NOTICE that KEAMOGETSWE MBISANA (hereinafter called the Applicant), intends to make an application to this Honourable Court for an Order in the following terms:

1. It be and is hereby declared that Section 96(2) and 104 of the Criminal Procedure and Evidence Act are ultra vires Section 5 and 10(2) of the Constitution.

2. Section 96(2) and 104 of the Criminal Procedure and Evidence Act are struck down.

3. It be and is hereby declared that Magistrates committing murder accused for trial to the High Court have the power to release such accused persons on bail in deserving cases.

4. Respondent be and are hereby ordered to pay the costs of the application.”

HEARING

23. This matter was heard before this Court on three occasions for argument. On the first day of hearing the matter could not proceed to argument because, according to the respondents, they had misapprehended or underestimated its deep-rootedness. They sought and were granted a postponement by consent of the applicant to go and prepare themselves. This was on 16 May 2012. Hearing was postponed to 13 June 2012 and the respondents were ordered to file heads of argument on 25 May 2012. The applicant had already filed her written heads.

24. The respondents filed their heads of argument, but on the date of hearing Mr. Tshekiso raised fundamental issues though very germane to the applicant’s case which were not in his filed written heads of argument. The court was taken by surprise, and in view of that turn of events, the court allowed learned counsel Mr. Tshekiso to proceed with his argument but file supplementary heads later. The respondents were also granted leave to supplement their argument in view of the issues then raised by the applicant. The result was that the argument was then adjourned after Mr. Tshekiso’s address, to continue on 23 July 2012. On 23 July 2012 argument continued, but the respondents had not filed any supplementary heads. Their explanation was that they had misconstrued the order of the court directing them to file supplementary heads. The court indulged them and directed that such written heads should nonetheless be filed on 27 July 2012 and 1 August 2012 for respondents and applicants respectively. As at the time of drafting this judgment such heads had not been availed, although the delivery of this judgment was postponed from 30 August 2012 to 19 September 2012 for the purpose. This Court could not wait for the parties indefinitely to file written supplementary heads on matters which they themselves had raised. This judgment has therefore been prepared on the basis of written submissions as well as a substantial portion of oral argument of counsel from both sides. I will endeavor to deal with all the material arguments raised both orally and written. The following is therefore a summary of the parties’ arguments in support of their respective positions.

THE APPLICANT’S CASE

25. The applicant’s case can be summarized under the following broad heads:

(a) The automatic cancellation of the applicant’s bail upon committal for trial in the High Court in terms of s. 96(2) constitutes a deprivation of her personal liberty and offends against s. 5(1) of the Constitution and cannot be justified under any of the limitations contained in s. 5(1) itself or under s. 3 of the Constitution and should, for those reasons be held to be ultra vires the constitution and struck down.

(b) It is further the argument of the applicant that s. 96(2) of the Criminal Procedure and Evidence Act does not cloth the remanding magistrate with any discretion to assess as to whether or not the accused should be granted bail and that the magistrate automatically remands the accused in custody pending their trial or until released on bail or released for one reason or another in terms of the law. The applicant is therefore calling upon this Court to determine the justification of what she terms “temporary” deprivation of liberty in the context of s. 5(1) of the Constitution. In a nutshell, the applicant is calling upon this Court to determine as to whether or not the legal process envisaged by ss. 96(2) and 104 of the Criminal Procedure and Evidence Act constitute any of the limitations contemplated under s. 5(1) of the Constitution supra.

26. The applicant has urged this Court to hold, additionally, that ss. 96(2) and 104 of the Criminal Procedure and Evidence Act do not pass the constitutional must for one or all of the following reasons:

(a) As provisions whose effect is to limit the enjoyment of a fundamental right, to wit, the right to the personal liberty they must be authorized by law. And because they offend against s. 5(1) of the Constitution to the extent that they authorize the remand of the accused in prison without the requirement that cause should be shown that she has breached her hitherto bail conditions or that she is not a suitable candidate to be granted bail. It was argued further that, in the circumstances, there is nothing the applicant can do to avoid being sent to gaol on the strength of ss. 96(2) and 104 of the Criminal Procedure and Evidence Act supra, once a magistrate commits them to the High Court for trial.

(b) The second scenario, postulated by Mr. Tshekiso, was to look at ss. 96(2) and 104 of the Criminal Procedure and Evidence Act supra, on the basis of whether or not they are justifiable in a democratic society. His argument was that in considering the matter under this subhead the court should consider whether or not the provisions impugned are not arbitrary or excessive. In doing so the court should consider the purpose for which the provision was enacted, i.e. what was it intended to serve. In development this argument Mr. Tshekiso submitted that s. 96(2) was promulgated on January 1939 at the time when Botswana was still a protectorate and not a democratic society. His argument was therefore that s. 96(2) being a relic of our colonial past, was never tested against the constitution which came into force in 1966.

(c) In relation to s. 104 Mr. Tshekiso’s argument was, in addition to the same reasons applicable to s. 96(2), that it also, does not serve any legitimate purpose. He argued further that it is not conceivable that the law giver would have given a power to a magistrate to remand in custody without giving the reverse power to grant bail.

27. In the above argument Mr. Tshekiso relied upon the following cases:

(a) Marapo v The State [2001] 2 BLR 632 (HC)

(b) Norr & Others v Botswana Cooperative Bank Ltd [1999] 1 BLR 443 at 448 (CA) and by extension the case of Coetzee v Government of South Africa [1995] ZACC 7; 1995 (4) SA 631 (CC)

(c) Mogotsi & Another v The State [1990] BLR 142 at 150 (HC)

(d) Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Others [2003] SC 65.

I must express my gratitude to counsel for having availed to the court copies of the judgments emanating from the Supreme Court of Zimbabwe as well as those from the Constitutional Court of South Africa.

28. Mr. Tshekiso has also presented an overarching argument as to what the court’s approach should be in construing s. 5(1) of the Constitution supra, when assessing the constitutionality of ss. 96(2) and 104 of the Criminal Procedure and Evidence Act. He argues that the right to personal liberty is one of the basic fundamental human rights in a democratic society and that its deprivation or curtailment must occur only within the narrowest of confines.

See Attorney-General’s Reference In re: State v Marapo [2002] 2 BLR 26 (CA).

He further argues that a court dealing with issues concerning fundamental human rights should give constitutional provisions a generous and purposive interpretation that does not whittle down any of the rights and freedoms guaranteed by the constitution, unless by very clear and unambiguous words such an interpretation is compelling and that even then, such provisions, as tend to limit the rights guaranteed by the constitution, should be restrictively interpreted. See Attorney-General v Dow [1992] BLR 119 (CA).

THE RESPONDENTS’ CASE

29. The respondents’ case can be summarized as follows, and for the sake of completeness I will also put side-by-side to it, the applicant’s reply to it. The respondents justify the alleged deprivation of the applicant’s liberty on the basis of s. 5(1) (e). In their view this is the only part of s. 5(1) which covers the applicant’s case. In a broad outline the respondents’ case is the following:

(a) The applicant’s alleged deprivation of liberty is justified on the basis of s. 5(1) (e).

(b) A magistrate has no power to grant bail to an accused person committed for trial before the High Court on a charge of murder as such power has been taken away by ss. 96(2) and 104 of the Criminal Procedure and Evidence Act as well as s. 60(3) of the Magistrates’ Courts Act.

(c) The operational effect of s. 96(2) is a jurisdictional question, i.e. it confers jurisdiction on the High Court to now deal with the matter of the person so committed.

(d) Committal proceedings constitute a change of circumstances such that a person who would have been on bail is now in a position where their trial is a reality justifying that their bail be cancelled.

(e) The cancellation of bail in terms of ss. 96(2) and 104 of the Criminal Procedure and Evidence Act supra, is only temporary, and the accused is still entitled to approach the High Court to apply for bail.

See Marapo case supra.

The respondents argue lastly that ss. 96(2) and 104 of the Criminal Procedure and Evidence Act supra, are not ultra vires s. 5(1) of the Constitution.

30. The applicant in reply to the respondents’ case, especially with regard to (c) and (d) above was to the effect that s. 96(2) of the Criminal Procedure and Evidence Act was not promulgated for purposes of conferring jurisdiction on the High Court because the High Court enjoys unlimited jurisdiction anyway, and that it would not require the drastic arrangement whereby a person is deprived of their liberty simpliciter to confer jurisdiction on the High Court. And that, if that was the purpose, then it is not a legitimate one and cannot be justified in a democratic society.

31. In relation to (d) above, it was the applicant’s reply that committal of an accused to the High Court does not justify a change of circumstances as to deprive one of their constitutionally guaranteed right to liberty in the absence of assessment by the magistrate as to suitability or lack thereof for an accused to be granted bail and that it cannot be justifiable in a democratic society.

32. As for grounds (a), (b) and (e), they are sufficiently covered in the paragraphs dealing with the applicant’s case.

33. The above is a summary of the competing views of the parties to this matter which this Court has to analyze, evaluate and make conclusions of fact and law and see whether the relief sought by the applicant should be granted. And in dealing with this matter this Court will bear in mind that "... where it appears that a right may have been infringed, the onus is on the state to show that the legislation in question does not take away constitutional rights.”

See Marapo v The State [2001] 2 BLR 632 at 636 C-D (HC) per Mosojane J.

34. This Court will also bear in mind that:

“A fundamental right or freedom once conferred by the Constitution can only be taken away or circumscribed by an express and unambiguous statement in that Constitution .... It cannot be taken away or circumscribed by inference.” Per Amissah J.P. in Attorney- General v Dow supra at 148 A-C.

35. This Court is also enjoined by the rules and principles of Constitutional construction to adopt in its interpretation of the scope of ss. 96(2) and 104 of the Criminal Procedure and Evidence Act in the light of s. 5(1) (e) of the Constitution a restrictive construction in so far as they tend to limit, and derogate, respectively the right to liberty as conferred by s. 5(1) of the Constitution, which itself, must be given a generous and purposive construction.

See the Dow case, supra at page 163 per the speech of Aguda J.A.

36. In the case of Attorney-General’s Reference: In re: The State v Marapo, supra, at page 30 Tebbutt A.J.P. citing Lord Diplock in Attorney- General of the Gambia v Momodou Jobe [1984] AC 689 (PC) at p. 700

stated as follows:

“A Constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms, to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”

What is a generous and purposive interpretation with reference to constitutional interpretation? The answer which has been accepted, and that which I also adopt for purposes of this case is the one found

from the judgment of Aguda J.A. in the Dow case, supra at page 163 H. It is this that:

“Generous construction means in my own understanding that you must interpret the provisions of the Constitution in such a way as not to whittle down any of the rights and freedoms unless by very clear and unambiguous words such interpretation is compelling.

The construction can only be purposive when it reflects the deeper inspirations of the basic concepts which the Constitution must forever ensure, in our case the fundamental rights and freedoms entrenched in s. 3.”

37. Section 3 of the Constitution referred to in the above quotation from the judgment of Aguda J.A. is the one that entrenches fundamental rights

and freedoms. The said section provides as follows:

“Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his or her 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 or her 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.”

38. The case of Marapo, supra was concerned with a constitutional challenge in almost similar circumstances as the present case. In the Marapo case supra, the challenge was directed at a section of the Penal Code which was to the effect that any person who is charged with the offence of rape shall not be entitled to be granted bail. Marapo brought an application before the High Court challenging that provision of the Penal Code on the basis that it offended against s. 5(3) (b) of the Constitution. The State justified parliament’s authority to enact such a law on the basis of public interest and also on the basis of s. 5(1) (e). The court, per Mosojane J. stated the following at p. 636, F-H

“Indeed this subsection lists several derogations running through from (a) to (k) and I have found none of them except (e) to have any bearing on the present enquiry. I will therefore proceed on the basis that Parliament believed it had authority from section 5(1) (e) of the Constitution to enact section 142(1) (i) of the Penal Code. The provisions of this subsection are somewhat identical to the opening provisions of subsection (3) (b) of section 5 of the same Constitution and, if Mr. Ngcongco is right that the legislature acted in terms of section 5(1) (e) then I am somewhat baffled by the need to enact section 142(1) (i) of the Penal Code since the provisions of section 5(3)

(b) of the Constitution appear sufficient law in themselves. I say this because Mr. Ngcongco also seemed to suggest that the provisions of section 5(3) (b) must be read into section 142(1) (i) of the Penal Code. Alternatively, section 142(1) (i) of the Penal Code must be read subject to the provisions of section 5(3) (b) of the Constitution so as, perhaps, to ameliorate the effects of this new section of the Penal Code now under challenge which appears otherwise to be insensitive to the said provisions of the Constitution.”

39. Mosojane J. dismissed the State’s contention and upheld the applicant’s application to have the impugned provisions of the Penal

Code declared ultra vires s. 5(3) (b) of the Constitution. The matter proceeded to the Court of Appeal by way of referral by the Attorney- General. Tebbutt A.J.P delivered the judgment of the Full Bench of the

Justices of Appeal. His Lordship’s point of departure was s. 3 of the Constitution supra. After an instructive discussion of how that section of the Constitution should be construed he continued as follows at

pages 31 H-32 A-B.

“Adopting such a purposive construction to s 3 of the Constitution, it is manifest that its purpose is the protection of those rights and freedoms of the individual set out in the section, including the right to personal liberty (my emphasis). The only limitations to the latter right are:

(i) that its enjoyment should not prejudice the rights and freedoms of others or the public interest and

(ii) those limitations expressly contained in s 5 of the Constitution.

Section 5 sets out in paras (a)-(k) those circumstances in which a person may be deprived of his or her personal liberty.

Only para (e) is germane to the present inquiry. It permits such deprivation:

‘(e) upon reasonable suspicion of his having committed or being about to commit, a criminal offence under the law in force in Botswana. ’

It is in respect of that subsection that s. 5(3) (b) becomes operative granting, as it does, entitlement to be released unconditionally or on conditions, which would include bail.

That entitlement has now been removed by s 142(1) (i). Section 142(1) (i) accordingly offends against s 5(3) (b) unless its enactment can be said to be in the public interest.”

40. In my thinking, and on the basis of the Court of Appeal decision in the Marapo case supra, any enquiry dealing with an alleged infringement of s. 5(1) of the Constitution should have as its point of departure a consideration of the provisions of s. 3 of the Constitution. This is because s. 3 is the one that entrenches the right to liberty as is sought to be protected in this case. And s. 5(1) is an operational section whose main purpose is to protect such right and to delimit those situations where such right can be interfered with.

41. I agree with the submission of Mr. Tshekiso, which submission is also in consonance with authorities on the subject, that nothing should be read into s. 5(1) (e) the effect of which will be to take away the rights therein protected, and as entrenched in s. 3 of the Constitution.

42. In my own understanding, the net effect of this proposition is this that if in interpreting s. 96(2) or s. 104 of the Criminal Procedure and Evidence Act, the result will be that the right entrenched in s. 3 of the

Constitution and protected in terms of s. 5(1) of the same Constitution is taken away without the authority of the Constitution then the result should be that those sections should be struck down as ultra vires the Constitution.

43. I think it is accepted that para (e) of subsection (1) of s. 5 of the Constitution permits deprivation of personal liberty upon its terms, i.e. on reasonable suspicion of the accused having committed a criminal offence, or being about to commit a criminal offence under the law in force in Botswana.

44. Reading s. 5 of the Constitution as a whole, as I should, especially ss. 5(1) (e) and 5(3) (b) thereof, dealing with deprivation of personal liberty by arrests and detention and entitlement to bail as they do, it seems to me that they must be read together. And if they should be read together it would seem, in my thinking, that a person who is arrested on suspicion of having committed a criminal offence cannot be heard to complain that their right to personal liberty has been violated. This is because once the provisions of s. 5(3) (b) are put in motion the court will consider, among other things whether they should be released on bail.

45. The question to be answered is whether the applicant in this case falls within the category of persons contemplated by ss. 5(1) (e) and 5(3) (b). The respondents have argued that the applicant in this case was, firstly, a suspect and now she is an accused person facing a charge of murder whose investigations are complete and she is due to be indicted for trial in the High Court.

46. I did not understand Mr. Tshekiso to be disputing the above picture painted by the respondents. His contention seems to lie elsewhere. And this is it: The accused has always been on bail and she must continue to be. He also does not dispute that the applicant can, if she wants, approach the High Court and apply for bail. In a nutshell, he does not seem to argue that the applicant’s entitlement to bail has been completely extinguished by reason of her committal to the High Court for trial.

47. If that was his argument it will fall foul of how the whole of s. 5 of the Constitution should be construed and interpreted, especially ss. 5(1) (e) and 5(3) (b). They cannot be read separately because they have a bearing upon the same issues, arrests, detention and deprivation of personal liberty on the general ground of being suspected to have committed an offence.

48. In the case of Petrus and Another v The State [1984] BLR 14 (CA) [Full Bench] at p. 35 B-D Aguda J.A. after citing with approval the judgment of Sir Udo Udoma of the Supreme Court of Nigeria in the case of Rafiu

Rabin v The State [1981] 2 NLLR 293 on the approach the courts should take in construing constitutional provisions stated as follows:

“These principles, in my opinion provide some guide to statutory interpretation vis-a-viz the construction of constitutional provisions.

As the learned Justice of the Supreme Court said in the same case:

‘I do not conceive it to be the duty of this court so as to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends’.

In 1904 Justice White of the Supreme Court of the United States said:

‘I take it to be an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from all others, and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument.

49. In my judgment the applicant in this case falls to be covered by s. 5(3)

(b) of the Constitution. Her entitlement to be considered for bail by a court of competent jurisdiction has not been taken away or extinguished as she is entitled to approach the High Court to apply for bail. In my considered view, ss. 96(2) and 104 of the Criminal Procedure and Evidence Act which enjoins a magistrate to remand in custody, a person indicted on a murder charge and committed to the High Court for trial cannot be held to be ultra vires the Constitution. This would have been dispositive of this matter, but for the other grounds raised by the applicant.

50. On a proper consideration of the applicant’s case, it is a challenge directed at a lack of jurisdiction by a magistrate to grant the applicant bail following upon her committal to the High Court for trial on a charge of murder. Mr. Tshekiso has, in his submissions decried what he termed an automatic cancellation of bail without enquiry or even an assessment of whether the applicant was not a good candidate to be granted bail. The respondents have, in response, argued that the automatic cancellation of bail is justifiable on three grounds, viz; to confer jurisdiction on the High Court; because of a change of circumstances in that the applicant, who will have been hitherto a mere suspect, would now be an accused with charges, in the form of an indictment for trial in the High Court, preferred against her and lastly, that murder is a serious offence. Mr. Tshekiso has vehemently disputed the respondents’ contentions advanced above by Mrs. Kula.

JURISDICTION

51. The respondents argue that the cancellation of bail in terms of s. 96(2) is aimed at enabling the High Court assume jurisdiction on the case involving the applicant. I find myself baffled by this submission. I do not understand how the deprivation of personal liberty can be used to confer jurisdiction on the High Court over a matter that arose within Botswana and concerning a person who is not only residing in Botswana but also a citizen of this Country. I would agree with Mr. Tshekiso’s submission that if indeed the object of s. 96(2) in authorizing the automatic cancellation of bail for a person who would have been on bail is to confer jurisdiction on the High Court this would be unreasonable and unjustifiable and will offend against the protection of the entrenched right to personal liberty enjoyed by the applicant and would, as a consequence be ultra vires s. 3 as read with s 5(1) of the Constitution, supra. And there is a basis why this submission by the respondents is not tenable as I will show shortly in this judgment.

52. The Criminal Procedure and Evidence Act provides a mechanism through which the High Court assumes jurisdiction on matters committed to it by the magistrates’ courts, and this is without the need to deprive one of their liberty to achieve that object.

53. Section 97 of the Criminal Procedure and Evidence Act, for instance, provides as follows:

“No person shall be tried in the High Court for any offence unless he has been previously committed for trial by a magistrate. ...”

54. It is clear to me from the above cited provision of the Criminal Procedure and Evidence Act that it is only the committal of an accused by a magistrate for trial to the High Court which is a conditio sine qua non for trial in the High Court, and in terms of that section the person so committed need not to have been put in prison custody.

55. Mr. Tshekiso has further pointed to the provisions of s. 95(1) of the Constitution, supra, which confer on the High Court, in any event,

unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law. The section reads as follows:

“There shall be for Botswana a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law.” (underlining mine for emphasis).

56. In my judgment, s. 97 of the Criminal Procedure and Evidence Act would be covered in addition to other laws, by the words "... or any other lauf which I have emphasized in the above quoted section of the Constitution.

57. The question then is, whether it is correct, as postulated by the respondents, that the object of s. 96(2) of the Criminal Procedure and Evidence Act is to confer jurisdiction on the High Court. I think not. I have already shown above, at paragraph 53 of this judgment that conferment of jurisdiction on the High Court in matters as the one we are concerned with here today is adequately provided for in s. 97 of the Criminal Procedure and Evidence Act, supra. There is no justification therefore in attributing to s. 96(2) of the Criminal Procedure and Evidence Act the construction sought to be placed upon it by the respondent and it was never the intention of the lawgiver that it should ever be assigned that purpose. The respondents’ assertion and submission in this regard is therefore accordingly rejected as a misconception. This finding however, is not dispositive of this matter either way. There is still need to determine what it is that which is intended to be achieved by the impugned provisions of the Criminal Procedure and Evidence Act, supra, i.e. ss. 96(2) and 104.

58. In my own understanding, s. 96(2) of the Criminal Procedure and Evidence Act is the operational section in relation to the committal proceedings contemplated by s. 96(1) of the same Act and the committal of the accused to gaol is as a result of such committal for trial. Murder and treason are offences specifically removed from the jurisdiction of a magistrate for purposes of bail.

59. Section 104 of the Criminal Procedure and Evidence Act, supra, is also to the same effect. The offences of murder and treason are excluded from the jurisdiction of a magistrate for purposes of bail following upon a committal for trial in the High Court.

60. Mr. Tshekiso has attacked these provisions also on the ground that they were promulgated in 1934 before the Constitution came into being in 1966. And that they no longer can be justified in a democratic society founded on a Constitution such as we have in Botswana. Whilst I do not find fault with Mr. Tshekiso’s first part of his submission relating to the periods when the Criminal Procedure and Evidence Act came into force as well as the Constitution, it is the second part of his argument which, I think, must be carefully considered, and in doing so I hold the view that it would be a constitutional interpretational proposition of absurd proportions to regard a provision of any law ultra vires the constitution only on the ground that it predates the constitution and therefore that it was never tested against the constitution as Mr. Tshekiso would want to argue. This to me sounds like this Court is being called upon to go into an exercise or process of Constitutional validation of statutory provisions that

were in force in Botswana immediately before Botswana attained her constitutional sovereignty in the absence of a profound allegation of a constitutional violation proved on a balance of probability to have occurred. The test, in my view should be whether the impugned provisions are, or are not ultra vires ss. 3 and 5(1) of the Constitution, supra in relation to the applicant. And this enquiry should be on the basis of whether or not, prima facie, they take away the right of the applicant to approach a court of law and apply for bail; or, put differently, whether the courts’ power in its entirety, to admit the applicant to bail, in deserving circumstances, is permanently removed by the application of the impugned provisions. And if this last question is answered in the negative that really should be the end of the enquiry.

61. Mr. Tshekiso was the first to admit that a person in the position of the applicant is entitled to approach the High Court and apply for bail which court can, in its unparalleled wisdom either grant or refuse to grant such bail. What seems to be the applicant’s contention is that such right to approach the courts and apply for bail should be exercisable at the magistrates’ court. And I think that this is the real case of the applicant. This is even clear from the relief sought by the applicant. On a proper construction of ss. 96(2) and 104 of the Criminal Procedure and Evidence Act, supra, vis-a-viz ss. 3, 5(1), 5(1)

(e) and 5(3) (b) of the Constitution, supra, it is apparent that the applicant’s right to personal liberty as entrenched by s. 3 of the Constitution and protected by s. 5(1) is not violated by the deprivation thereof on the application of ss. 96(2) and 104 of the Criminal Procedure and Evidence Act, supra, by reason that such deprivation is authorized by s. 5(1) (e) of the Constitution whose effect is ameliorated by the operational s. 5(3) (b) in terms of which the applicant can approach the High Court and apply for bail.

62. I am in no doubt that the applicant has not established, and on a prepondence of probabilities prima fade a violation of her right to personal liberty as entrenched by s. 3 and protected by s. 5(1) of the Constitution. If I am wrong in this conclusion, I will still hold that s. 5(3) (b) of the Constitution, is a complete answer to the applicant’s complaint and swings the pendulum back to preserving the status quo ante.

63. The respondents did not specifically argue their case on the basis of s. 5(3) (b) of the Constitution. They contented themselves with a generalized response as per paragraphs 15 of the affidavit of Kefilwe Jeremiah filed on behalf of first respondent (DPP). She states:

“The right to liberty as enshrined in the Constitution is not permanently taken away by the court since the applicant can still make an application before the court for his bail to be reinstated.”

This assertion by the first respondent should be understood in the light of what the deponent had stated earlier on in her affidavit at paragraphs 8 and 9 that:

“8. Section 96(2) paves way for other provision (sic) of the Act to operate, this being section 97 since the Honourable Court will not be able to proceed with the matter to trial if the applicant has not been committed first.

9. The applicant will at the hearing in terms of section 113 of the Criminal Procedure and Evidence Act then be in a position to apply for bail pending trial.”

64. Whilst it is clear that no specific reference is made by the respondents that their assertions above find support from s. 5(3) (b) of the Constitution, I am nonetheless satisfied that this is so. I am satisfied therefore that the respondents have discharged the onus cast upon them (that is in the event it being found that I am wrong in holding that the applicant has not shown a prima fade violation of her right to personal liberty) to show that “the legislation in question does not take away constitutional rights.”

See Marapo case per Mosojane J, supra.

65. To hold otherwise, only on account of the respondents’ failure to refer, specifically, to s. 5(3) (b) of the Constitution, supra, will in my judgment be unjustified. After all, it is this Court, and no other, which is charged with the mandate to adjudicate over constitutional challenges and to pronounce on the constitutional validity of any provision of the law challenged on the allegation of its incompatibility with the Constitution. And in discharging that constitutional function this court must be alive to the principle of presumption of constitutionality in relation to all enactments passed by the Legislature in the discharge of its constitutional mandate as the law making body in a modern State governed in accordance with the rule of law.

66. The presumption of constitutionality has been held to represent “no more than the court adopting the view that a legislature, elected by universal adult suffrage and liable to be defeated in an election must be presumed to be a good judge of what is reasonably required or reasonably justifiable in a democratic society.”

Capital Radio (Put) Ltd v Broadcasting Authority of Zimbabwe and Others, supra.

67. The way I understand the applicant’s case is this that, in her view, the power to grant bail in respect of persons committed for trial in the High Court in murder cases, as the applicant is, should be exercisable by a magistrate as well, and not limited to the jurisdiction of the High Court. There is no doubt in my mind that an accused person circumstanced as the applicant, who is required by the law that they can only apply for bail before the High Court may be put to great and seemingly, unnecessary inconvenience. This will be particularly so where all the time they had been on bail (sometimes even such bail having been granted by the High Court) and they have done nothing to breach their bail conditions. But cognizance must be taken of the fact that if the lawgiver has decided to decree, in his wisdom and acting within the confines of the Constitution, what may appear to be differential treatment to persons indicted for murder, that a magistrate has no jurisdiction to grant them bail I do not think that, that on its own would be sufficient to hold the impugned provisions of the Criminal Procedure and Evidence Act ultra vires the Constitution.

68. The respondents have argued that the justification for this apparent differential treatment is founded on a change of circumstances, and also because a magistrate has no trial jurisdiction.

69. The argument based on trial jurisdiction has been shot down by Mr. Tshekiso on the basis that even in offences like attempted murder, where a magistrate has no trial jurisdiction, their power to grant bail has not been excluded. This is a sound and valid argument by Mr. Tshekiso, particularly on the justification based on trial jurisdiction.

70. On the change of circumstances ground, Mr. Tshekiso’s counterargument was that to the extent that a magistrate is not required to conduct any enquiry as to the need to remand, the argument cannot hold water.

71. These are indeed very strong arguments deserving of comment by this Court.

72. I think the automatic cancellation of bail in relation to criminal matters triable at the High Court should be understood in the context of the general scheme of the ever rising stakes in the process of a criminal trial procedure starting with arrests, up to the time when an accused person is either acquitted or convicted. The dichotomous relationship between the State, as the prosecuting authority, and the accused is such that, as the degree of the establishment of a prima facie case against the accused progressively gains momentum, the parameters of the accused person’s right to personal liberty regresses. The accused subject starts experiencing diminishing returns in the enjoyment of his right to personal liberty. I will demonstrate.

73. Section 142 of the Criminal Procedure and Evidence Act, supra, provides as follows:

“If the accused is indicted in the High Court after having been admitted to bail, his plea to the indictment shall, unless the Court otherwise directs, have effect of terminating his bail and he shall thereupon be detained in custody until the conclusion of the trial in the same manner in every respect as if he had not been admitted to bail.”

74. The above is yet another indication that as the issues are joined between the accused and the State by a plea, the accused is moving closer and closer to the charges being proved against him and the risk of him avoiding his trial increases, hence the need to keep him closer to the system by reducing the avenues to his liberty.

75. I therefore agree with the submission by respondents that committal proceedings constitute a change of circumstances justifying that the accused may be treated differently in relation to his entitlement to bail and that regard being had to the offence of murder, which prima facie attracts capital punishment, the legislature did not act unreasonably in limiting the jurisdiction to grant bail to the High Court. Magistrates’ courts, being creatures of statute, can only exercise such powers as are bestowed upon them by the enabling statute. Where a matter is therefore not within their power to do, such depravity, in my thinking, on its own cannot be a ground for complaint, particularly where the thing sought to be gained can be gained elsewhere with only, but some little inconvenience.

76. In the result the relief sought by the applicant be and is hereby refused and the application is dismissed.

77. The respondents are at liberty to proceed with the committal proceedings against the applicant in terms of s. 96(2) of the Criminal Procedure and Evidence Act.

78. On the issue of costs, my view is that the applicant was seeking to enforce her constitutional rights although mistakenly, in circumstances which do not render her actions unreasonable. There is therefore no order as to costs.

DELIVERED IN OPEN COURT ON WEDNESDAY 19 SEPTEMBER 2012.

G. G. KETLOGETSWE JUDGE

Tshekiso, Ditiro & Jani Legal Practice - Legal practitioner for the applicant Director of Public Prosecutions - Legal practitioner for the first respondent Attorney-General - Legal practitioner for the second respondent

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