- She has never practiced law –lawyer
- Loses all cases–Lawyer
- AG ignores courts– Justice Key Dingake
Ever since she took office in 2005 as the Attorney General, Dr. Athalia Molokomme has never represented the Government of Botswana or the President in the courts of law; she is resigning as Attorney General of Botswana as at 31st December 2016.
The former High Court Judge and human rights activist opted to either send her juniors or hire private law firms instead of appearing before court. In most cases Parks Tafa, who many regard as the de facto Attorney General has had to attempt to save the President of Botswana and the Government from the wrath of law that could have been avoided had she been a more robust legal advisor. The Gazette analyses a legacy Molokomme leaves behind.
Attorney General as President Khama’s Official Lawyer
The Gazette newspaper has established that the loss of important cases before the High Court and Court of Appeal on issues impacting on the interpretation of the Constitution has led to a lack of confidence in the Attorney General.
Dr. Athalia Molokomme in terms of section 51 of the Constitution is the Governments designated lawyer, however her record as Attorney General has been clouded by advancing legal positions that many in the legal fraternity consider anti human rights and contrary to the national ethos of a constitutional democracy, a position that in many instance is borne out by Judgments handed down by the courts against the position her office adopted.
In her official role, Dr. Athalia Molokomme has been unable to curb the Executive from acting in an impromptu manner and has been seen as a result as acting and seeking to fulfill the ruling party agenda’s as opposed to those with a greater national interest.
At the height of tensions between the Unions and the Executive, President Khama discussed the civil servants salary increments at Kgotla meetings, a position that would not have been taken had legal advice been obtained. The tensions with the Unions began back in 2011 when the government employees where demanding a 16% wage increment. At the inception of the resultant civil servants strike, President Khama addressed Kgotla meetings and labelled the workers as “greedy” when advising the senior community members attending the kgotla gatherings, adding that the government will not budge to the demands of the workers. President Khama continued in a similar vein in 2014 announcing at Kgotla meetings that salary increments for civil servants will only 4% effective April 2015. BOFEPUSO took the President to court over the conduct and successfully argued their position against the Attorney General who represented the Executive, as the court ruled that it was unconstitutional for the government to have acted in that light.
The legal indiscretions by President Khama must be apportioned equally to his advisor; the Attorney General. The Attorney General’s role amongst others is to ensure the legal compliance by the state president and his government as against the Constitution, and to advise from time to time on matters bordering on the constitution and legal precedence. It is the failure by Government to accept her advice and the legal positions adopted by her office that go against the fiber of the once heralded human rights activist.
Under her watch the Courts pronounced against her position on some of the most important cases in the country’s history.
Foreign prisoners vs. Attorney General
Botswana Network on Ethics, Law and HIV and AIDS (BONELA) supported foreign inmates against the Government of Botswana. The application to the courts sought to enforce an obligation on state to provide HIV positive foreign inmates with Anti-Retroviral Therapy, this was necessitated by a Government directive that sought to stop such treatment. The Attorney General, adopted a position that was seen as contrary to human rights in arguing that the Government directive was lawful. The case was lost by the Attorney General.
The courts ruled against the Government and ordered that the government should provide anti-retroviral (ARV) treatment to HIV-positive, foreign prisoners’ at state expense. The court held that the denial of ARV treatment to foreign prisoners violated their constitutional rights as the Prison’s Act does not discriminate against inmates on the basis of countries of origin. The courts noted that providing the inmates with treatment they needed against HIV was not only a constitutional matter but that was to reduce the spread of other infectious diseases such as tuberculosis and the further spread of the HIV virus in prisons.
The Government had initially argued that it does not have enough financial resources to sustain such a program. Despite that this reasoning itself was not sufficient to convince an ordinary man in the streets, Dr. Molokomme’s office failed to research and present such figures to the courts that the Government was not in a financial position to sustain such a program. It is important to note that on both occasions at the High Court where this case was first heard and the Attorney General lost, and at the Court of Appeal where the Attorney General sought to reverse the decision of the high court Dr. Molokomme did not personally argue the matter, leaving it to the hands of her juniors to advance her position.
Responding to The Botswana Gazette at the time a prominent lawyer lashed out at the Attorney General that “I can’t remember her (Dr. Molokomme) winning a matter of national and prominent importance. That speaks volumes about her and her integrity as purported human rights activists.” The government of Botswana lost the case with costs in both instances.
Customary Law Questioned by the High Court
The 2004 Abolition of Marital Powers Act established equal control of marriage estates and equal custody of children, removed restrictive domicile rules, and set the minimum marriage age at 18. However, enforcement of the Act was not uniform and generally required the cooperation of traditional authorities, which is not always forthcoming. In September 2013, the Botswana Court of Appeal upheld a 2012 High Court ruling that struck down as unconstitutional a customary law favoring a youngest-born son over older sisters in awarding inheritance, setting a precedent for the supremacy of civil over customary law in Botswana. The court unanimously upheld the High Court’s ruling though on different grounds, in the case of Ramantele v. Mmusi and Others, finding that Edith Mmusi and her three sisters were entitled to inherit their family home.
The Attorney General had appealed a High Court ruling on this matter in spite of her personal convictions on the matter as set out in her thesis publication “Children of the Fence”. A prominent lawyer who was responding to The Botswana Gazette enquiry did not mince his words; “look, that woman has been a human rights activist, one will assume and expect her to give due consideration to cases that borders on erosion of respect of human rights, but no!, she battles such cases as if she has never been a human rights activists. She is also a woman, how does a woman Attorney General fail to advice the government that a case such as this is anti-gender equality that the whole world is preaching.” Quizzed whether the Attorney General was just not doing her job, the lawyer disregarded this position saying “a human rights lawyer will simply resign if forced to do something against his or her principles, her continuing with the case presented a side of her we never knew before.” The Attorney General lost this case both at the High Court and the Court of Appeal with costs.
Adoption Law Challenged
Justice Key Dingake ruled that unmarried fathers should have the same rights over their biological children as mothers irrespective of whether they are married to them or not. In the suit, the unwed father was challenging the legality of section 4 (2) (d) (i) of the Adoption Act, which permits an illegitimate child to be adopted in all cases without the consent of its biological father. Justice Key Dingake noted in his ruling that it was unconstitutional to adopt a child without the consent of his biological father and lamented that “the Attorney General does not want to listen to what the courts are saying, this court notes in passing that the attitude or standpoint of the Attorney General towards section 15(4) has not changed since the case of Unity Dow and even the recent decision of the Court of Appeal in Ramantele’s case.
Continuing the discussion with The Botswana Gazette, the prominent lawyer noted that “though we are aware that her limitations are that she has never practiced law, one will assume that because she taught customary law at the University of Botswana she would have understood this case better and its ruling thereof and advised the government against appealing, but alas, she led the pack and lost both at the High Court and the Court of Appeal with costs. It is like she enjoys losing cases, and at the very worst, the very basic cases that does not need any complicated entangling.”
Opposition Parties vs. the state (Lehenza)
Just after the 2014 general elections, the Attorney General found herself having to represent the President and the Government of Botswana in a case initialed by the Botswana Democratic Party where she challenged the notion that election of the Speaker and the Deputy Speaker of the National Assembly and the endorsement of the Vice President should be done by secret ballot in parliament.
The opposition parties argued that the position of the Attorney General and the BDP was against both the constitution and the standing orders. The Attorney General had misled the president into believing that it was not constitutional to use secret ballot when voting in parliament. The high court ruled against the President and the Government of Botswana. The court of appeal was to also uphold the high court ruling.
Asked for a comment on this case, the prominent lawyer observed that though the Attorney General might say she does not have a privilege to share with the public on what advice she gave the presidency on this case, the public retains a right to question her competence as a state principal and official legal advisor and lawyer. He continued; “Look, there was no how the Attorney General was going to win the case; it was a straight forward case. How does a lawyer initiate a case like this one? Why did she fight for that case? This was a hopeless case. Though we know that its privileged information of how she advised the state, the public retains the right to scrutinise her performance. This is another instance where she had a choice to resign if she felt she was being asked to do something she did not believe in. So, it basically means she greatly approved and ill-advised the President and the state. As a law practitioner you don’t battle with a case that has no prospects of success”.
This publication further notes that Dr. Molokomme did not appear in court to argue on behalf of the state, Morulaganye Chamme represented government. The President and the Government lost this case with costs. The state had to pay money in the region of 2.5 million pula as cost of the case.
Dr. Molokomme has never practiced law; she was a lecturer at the University of Botswana where amongst other things she taught customary law as well as family law.