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Published online by Cambridge University Press: 21 December 2011
The principle of equality of arms is firmly entrenched in the jurisprudence of international tribunals, but hardly at all in domestic systems. This article argues for the principle to be applied in Botswana's adversarial system, as a way of ensuring procedural equality and enhancing fair trials. After examining the normative value of the principle, the article refers to a number of domestic jurisdictions that have applied the principle. It also examines the general acceptability of equality and fairness in Botswana case law. This represents a foundation for applying the principle in Botswana. The principle was developed by the European Court of Human Rights, creating its own concept of fairness in trials, irrespective of the position in domestic systems. Since the principle is of international origin, it is necessary to note that “judicial territoriality” and Botswana's dualist system do not pose obstacles to the application of the principle.
1 Bufford, SL “Center of main interests, international insolvency case venue, and equality of arms: The Eurofood decision of the European Court of Justice” (2007) 27/2Northwestern Journal of International Law and Business 351 at 395Google Scholar.
3 Silver, id.
6 Ibid. See also: Lucas, JROn Justice (1980, Clarendon Press) at 84Google Scholar; Safferling, CJMTowards an International Criminal Procedure (2001, University Press) at 265Google Scholar; Lenaerts, K “‘In the union we trust’: Trust-enhancing principles of community law” (2004) 41 Common Market Law Review 317Google Scholar at 329; Laws, J “Beyond rights” (2003) 23 Oxford Journal of Legal Studies 265 at 274CrossRefGoogle Scholar; Mani, VSInternational Adjudication: Procedural Aspects (1980, Martinus Nijhoff Publishers) at 12–13Google Scholar; Jackson, ibid.
7 Simor, J and Emmerson, BHuman Rights Practice (2001, Sweet & Maxwell) at para 6.145Google Scholar; Jackson, ibid.
8 International Criminal Tribunal for Rwanda (ICTR), International Criminal Tribunal for the former Yugoslavia (ICTY) and Special Court for Sierra Leone (SCSL). See Prosecutor v Tadic case no IT-94-1-A at 44 (15 July 1999): “The principle of equality of arms between the prosecutor and the accused in a criminal trial goes to the heart of the fair trial guarantee.”
9 The ICTY has been criticized for restricting international human rights standards in the interest of securing convictions; see generally Sloan, J “The International Criminal Tribunal for the Former Yugoslavia and fair trial rights: A closer look” (1996) 9 Leiden Journal of International Law 479CrossRefGoogle Scholar. Indeed the court distinguished itself from national courts and compared itself with military tribunals which often limit due process rights and relax rules of evidence; see Tadic First Instance (Witness Protection) case no IT-94-1-T (10 August 1995). For further criticism and highlights of inequality in the tribunal, see McIntyre, G “Equality of arms: Defining human rights in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia” (2003) 16/2Leiden Journal of International Law 269CrossRefGoogle Scholar.
10 McIntyre, id; Knoops, GA “The dichotomy between judicial economy and equality of arms within international and internationalized criminal trials: A defense perspective” (2005) 28/6Fordham International Law Journal 1566Google Scholar; Negri, S “The principle of ‘equality of arms’ and the evolving law of international criminal procedure” (2005) 5 International Criminal Law Review 513 at 514CrossRefGoogle Scholar; DeFrancia, F “Due process in international criminal courts: Why procedure matters” (2001) 87 Virginia Law Review 1381 at 1438CrossRefGoogle Scholar; Negri, S “Equality of arms: Guiding light or empty shell” in Bohlander, M (ed) International Criminal Justice: A Critical Analysis (2007, Cameron May) 13 at 14Google Scholar.
11 International Covenant on Civil and Political Rights (ICCPR), art 14, adopted and opened for signature, ratification and accession by General Assembly res 2200A (XXI) of December 1966, entered into force 23 March 1976; Universal Declaration of Human Rights (UDHR), art 10, adopted and proclaimed by General Assembly res 217 A (III) of 10 December 1948; Safferling Towards an International Criminal Procedure, above at note 6 at 265.
12 213 UNTS 222, entered into force 3 September 1953.
13 Trechsel, SHuman Rights in Criminal Proceedings (2005, Oxford University Press) at 97Google Scholar; Wasek-Wiaderek, MThe Principle of ‘Equality of Arms’ in Criminal Procedure Under Article 6 of the European Convention on Human Rights and its Functions in Criminal Justice of Selected European Countries: A Comparative View (2000, Leuven University Press) at 10Google Scholar.
14 Toney, RJ “English criminal procedure under article 6 of the European Convention on Human Rights: Implications for custodial interrogation practices” (2002) 24 Houston Journal of International Law 411 at 438Google Scholar. Bufford notes that the principle “is recognized as an uncodified element of the right to a fair trial provided in Article 6. Thus, Article 6 makes ‘equality of arms’ a core element of the adversary criminal process”: Bufford “Center of main interests”, above at note 1 at 396. While recognizing equality of arms as a principle, Silver advocates for the need to “recognize an implied constitutional right to the equality of arms”: Silver “Equality of arms”, above at note 2 at 1041.
15 Conte, A “The judicial process” in Conte, A, Davidson, S and Burchill, R (eds) Defining Civil and Political Rights (The Jurisprudence of the United Nations Human Rights Committee) (2004, Ashgate Publishing) 117 at 122Google Scholar; Robertson, AH and Merrills, JGHuman Rights in Europe (3rd ed, 1993, Manchester University Press) at 108Google Scholar.
16 (1998) 25 EHRR 234 at para 34.
17 Bufford “Center of main interests”, above at note 1 at 396.
18 Trechsel Human Rights, above at note 13 at 97.
19 (2000) 30 EHRR 441.
20 X v United Kingdom application 5871/72; X v United Kingdom application 7413/76; EM v Norway application 20087/92.
21 General comment no 32 CCPR/C/GC/32.
22 Id at para 8.
23 Id at para 13.
24 Trechsel Human Rights, above at note 13 at 88; Brandsetter v Austria (1993) 15 EHRR 378; Jasper v United Kingdom, above at note 19; Dombo Beheer v Netherlands (1994) 18 EHRR 213.
25 Trechsel, id at 82.
26 2006 (2) SACR 350 (CC).
27 Id at paras 15–16.
28 R v Rich (ruling no 2)  VSC 141.
29 Ch'Elle Properties (NZ) Ltd v CIR  NZHC 190; Ministry of Fisheries v District Court at Christchurch and Others  NZHC 1093; Chesterfield Preschools Ltd and Others v The Commissioner of Inland Revenue  NZHC 37; The Queen v King and Stevens  NZCA 79; The Queen v Philip Wayne Tukuafu  NZCA 325.
30  VSC 1. The principle was also briefly discussed by the New Zealand Supreme Court in Paul Rodney Hansen v The Queen  NZSC 7.
31 Cap 08:02.
32  BLR 8 at 10F. In State v Jaba  BLR 315, four previous adjournments had been taken, mostly at the instance of the defence. Having warned the parties that he would grant no further adjournments, the magistrate refused to grant the prosecution an adjournment to call a witness. O'Brien Quinn CJ remarked at 319A–B: “Justice must not only be done but must be seen to be done and all parties must be treated alike; the state being in no better or worse situation than an accused where the question of adjournments is concerned.”
33  2 BLR 368 at 383F; State v Jaba, id at 319.
34 Motshwane, id at 383G.
35 See Sesana and Others v Attorney-General  2 BLR 633; Ntloyakhumo and Another v The State  2 BLR 269; Kanane v The State  2 BLR 67 (CA); Kamanakao I and Others v Attorney-General and Another  2 BLR 654; Diau v Botswana Building Society  2 BLR 409; Attorney-General v Dow  BLR119 (CA) (Dow).
36  2 BLR 605 at 609H–10A.
37 Id at 607H.
38 Motshwane, above at note 33; State v Fane  1 BLR 319; Ahmed v Attorney-General  2 BLR 431; Attorney-General v Ahmed  1 BLR 158 (CA).
39 Ahmed v Attorney-General, id.
40 Aston Little (comm no 283/1988) UN Human Rights Committee, cited at 454.
41 1995 (2) SA 82 (Nm).
42 Id at 111B–C.
43 Above at note 38 at 456C–D.
44 Act 43 of 2006.
45 Secs 24 and 25 of the Victoria Charter provide for various rights relating to a fair hearing.
46 Drzemczewski, AZEuropean Human Rights in Domestic Law: A Comparative Study (1983, Clarendon Press) at 20Google Scholar.
47 Id at 35. Also note: “It is a firmly established principle of English constitutional law, received as part of the common law received in Botswana, that an international instrument does not constitute part of the domestic law until it has been incorporated by an Act of Parliament”: Fombad, CM “The protection of human rights in Botswana: An overview of the regulatory framework” in Fombad, CM (ed) Essays on the Law of Botswana (2007, Juta) 1 at 10Google Scholar; and O Tshosa “The status and role of international law in the national law of Botswana” in Fombad (ed), id 229 at 237.
48  VSC 337 at para 72.
49 In Dow, above at note 35, Amissah JP noted at 154D–E: “I am in agreement that Botswana is a member of the community of civilized States which has undertaken to abide by certain standards of conduct, and, unless it is impossible to do otherwise, it would be wrong for its courts to interpret its legislation in a manner which conflicts with the international obligations Botswana has undertaken.” In the same case, Aguda JA stated at 169G–H: “We have a written Constitution, and if there are two possible ways of interpreting that Constitution or any of the laws enacted under it, one of which obliges our country to act contrary to its international undertakings and the other obliges our country to conform with such undertaking, then the courts should give their authority to the latter.” See also: Good v Attorney-General  2 BLR 333 (CA); Fombad, CM and Quansah, EKThe Botswana Legal System (2006, LexisNexis Butterworths) at 224Google Scholar; Fombad “The protection of human rights in Botswana”, above at note 47 at 11; and Tshosa “The status and role of international law”, above at note 47 at 242.
50 Clapman, AHuman Rights in the Private Sphere (1993, Clarendon Press) at 15Google Scholar. Also note: “an instrument which has been signed, whether or not it has been ratified and domesticated, still has important legal consequences domestically as an aid to statutory interpretation”: Fombad, id at 11; and Tshosa, id at 240.
51 Clapman, id at 15; Schachter, O “The obligation to implement the convention in domestic law” in Henkin, L (ed) The International Bill of Rights: The Covenant on Civil and Political Rights (1981, Columbia University Press) 311 at 317Google Scholar.
52 Drzewicki, K “The status of international human rights instruments in domestic law” in Rosas, A (ed) International Human Rights Norms in Domestic Law: Finnish and Polish Perspectives (1990, Finnish Lawyers Publishing Company) 1 at 6Google Scholar.
53 Clapman Human Rights, above at note 50 at 9–10.
54 Id at 18; Fombad “The protection of human rights in Botswana”, above at note 47 at 10; Tshosa “The status and role of international law”, above at note 47 at 237; Good v Attorney-General, above at note 49 at 337.
55 Loucaides, LEssays on the Developing Law of Human Rights (1995, Martinus Nijhoff Publishers) at 172Google Scholar.
56 Schachter “The obligation to implement”, above at note 51 at 316. See R v Miah  1 WLR 683; R v Secretary of State for the Home Department, ex parte Bhajan Singh  3 WLR 225.
57 Interpretation Act, cap 01:04, sec 24(1). The Court in Dow, above at note 35 at 154, noted that this provision supports the principle that international conventions should be used as an aid to legislative and constitutional interpretation. See also Good v Attorney-General, above at note 49.
58 Dow, id at 153H per Amissah JP. The court in Petrus and Another v The State  BLR 14 (CA), making reference to the UDHR and the African Charter, was of the view that, as a member of the UN and Organization of African Unity (now the African Union), it must be presumed that the country is willing to be bound by the instruments of those bodies.
59 Udombana, NJ “Interpreting rights globally: Courts and constitutional rights in emerging democracies” (2005) 5 African Human Rights Law Journal 47 at 59Google Scholar.
60 Sec 21(2). ICL document status: 25 August 1992. Available at: <http://www.servat.unibe.ch/law/icl/ao00000_.html> (last accessed 30 December 2008).
61 Art 17(3). Constitutional Law no 01/IV/92 of 25 September 1992, substantially amended in 1995 and 1999. Available at: <http://confinder.richmond.edu/admin/docs/capeverde.pdf> (last accessed 27 April 2010).
62 Sec 39(1).
63 Sec 11(2). Came into force on 18 May 1994, available at: <http://www.africa.upenn.edu/Govern_Political/mlwi_const.html> (last accessed 30 December 2008).
64 See Dow, above at note 35 at 25; Bojang v The State  BLR 146 (Bojang). In addition, the Interpretation Act authorizes the courts to consider international treaties when interpreting domestic legislation.
65 Bojang, id at 157.
66 Above at note 35.
67 Above at note 64.
68 Signed at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969, available at: <http://www.hrcr.org> (last accessed 12 July 2009).
69  2 BLR 26 (CA) at 33E.
70 General comment no 32, above at note 21 at para 4.
71 Tshosa, ONational Law and International Human Rights Laws: Cases of Botswana, Namibia and Zimbabwe (2001, Ashgate / Dartmouth) at 69Google Scholar; Tshosa “The status and role of international law”, above at note 47 at 237.
73 Id at 172.
74 Plans are afoot to introduce legal aid in Botswana.
75 Criminal Procedure and Evidence Act, sec 198(2); see Macheng v The State  BLR 294.
76 Id, sec 209(1).
77 Id, sec 209(2).
78 Tshosa National Law, above at note 71 at 71.
79 Kgolagano v The State  BLR 914 at 924.
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