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 either sending her juniors or hiring a private law firm. In most cases Parks Tafa, who many regard as the defacto Attorney General, have had to attempt to save the President of Botswana and the Government from the wrath of law that could have been avoided had Botswana had a competent Attorney General Tafa is a senior partner at Collins Newman. The Botswana Gazette invited a prominent lawyer from a Leading Law firm to share notes and review the performance of Molokomme.
Attorney General as President Khama’s official lawyer
The Botswana Gazette has established that most of the cases that President Ian Khama has been losing are a mere show of lack of confidence on the Attorney General in her failure to legally advice the President of the country and the Government of Botswana. Dr. Molokomme is not only President Khama’s official and designated lawyer as per the constitution of the Republic of Botswana but she is further President Khama’s official and principal legal advisor. But her record as Attorney General is clouded with dismal failure, gross legal loses, anti-human rights midst and a total failure to show understanding of basic constitutional clauses. Her legal language is lacking and this questions her legal posture.
In all her official roles, Dr. Molokomme has failed miserably in many if not all occasions. To just pick a simple one will be that of not advising President Khama to be discussing civil servants salary increments in Kgotla meetings. This began back in 2011 when the government employees where demanding a 16% increment. In all that time that the civil servants strike was going on, President Khama was addressing Kgotla meetings and dismissing the workers as greedy and telling the elderly at these Kgotla gatherings that the government will not budge to the demands of the workers. President Khama was to further continue announcing salary increment sometimes in 2014 at a Kgotla meeting where he told attendants that civil servants will get 4% salary increment effective April 2015. BOFEPUSU took the President to court over this trend and has successfully defeated the Attorney General as the court ruled that it was unconstitutional for the government to have acted in that light.
These legal blunders by President Khama can only be blamed not on him but on his principal legal advisor; the Attorney General. The Attorney General’s role amongst others is to ensure the legal compliance of the state president and his government and to advise from time to time on matters bordering on the constitution and legal precedence. This is an area that has been humiliated the most and suffered ever since Dr. Molokomme took the helm as the Attorney General of this country.
Foreign prisoners vs. Attorney General
A recent landmark case in which Botswana Network on Ethics, Law and HIV and AIDS (BONELA) supported foreign inmates against the Government of Botswana in an application to the courts to rule that the state has an obligation to provide HIV positive foreign inmates with Anti-Retroviral (ARV) Therapy was lost by the Attorney General. The courts ruled against the Government and ordered that the government should provide anti-retroviral 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 Attorney General had missed these simple constitutional matters and failed to advise itself but further spent tax payers money unnecessarily and in the process humiliated the very government which dignity and esteem she should be providing shelter to.
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 walking the streets, Dr. Molokomme failed to research and present such mathematical figures to the courts that the Government is 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 was once again not available in court to represent the government but rather sent her juniors to do the work for her. Responding to The Botswana Gazette a local prominent layer lashed out at the Attorney General: “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 activist.” 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 is not uniform and generally requires 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 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. 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 prominent lawyer rubbished off such, 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 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
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 either sending her juniors or hiring a private law firm. In most cases Parks Tafa, who many regard as the defacto Attorney General, have had to attempt to save the President of Botswana and the Government from the wrath of law that could have been avoided had Botswana had a competent Attorney General Tafa is a senior partner at Collins Newman. The Botswana Gazette invited a prominent lawyer from a Leading Law firm to share notes and review the performance of Molokomme.
Attorney General as President Khama’s official lawyer
The Botswana Gazette has established that most of the cases that President Ian Khama has been losing are a mere show of lack of confidence on the Attorney General in her failure to legally advice the President of the country and the Government of Botswana. Dr. Molokomme is not only President Khama’s official and designated lawyer as per the constitution of the Republic of Botswana but she is further President Khama’s official and principal legal advisor. But her record as Attorney General is clouded with dismal failure, gross legal loses, anti-human rights midst and a total failure to show understanding of basic constitutional clauses. Her legal language is lacking and this questions her legal posture.
In all her official roles, Dr. Molokomme has failed miserably in many if not all occasions. To just pick a simple one will be that of not advising President Khama to be discussing civil servants salary increments in Kgotla meetings. This began back in 2011 when the government employees where demanding a 16% increment. In all that time that the civil servants strike was going on, President Khama was addressing Kgotla meetings and dismissing the workers as greedy and telling the elderly at these Kgotla gatherings that the government will not budge to the demands of the workers. President Khama was to further continue announcing salary increment sometimes in 2014 at a Kgotla meeting where he told attendants that civil servants will get 4% salary increment effective April 2015. BOFEPUSU took the President to court over this trend and has successfully defeated the Attorney General as the court ruled that it was unconstitutional for the government to have acted in that light.
These legal blunders by President Khama can only be blamed not on him but on his principal legal advisor; the Attorney General. The Attorney General’s role amongst others is to ensure the legal compliance of the state president and his government and to advise from time to time on matters bordering on the constitution and legal precedence. This is an area that has been humiliated the most and suffered ever since Dr. Molokomme took the helm as the Attorney General of this country.
Foreign prisoners vs. Attorney General
A recent landmark case in which Botswana Network on Ethics, Law and HIV and AIDS (BONELA) supported foreign inmates against the Government of Botswana in an application to the courts to rule that the state has an obligation to provide HIV positive foreign inmates with Anti-Retroviral (ARV) Therapy was lost by the Attorney General. The courts ruled against the Government and ordered that the government should provide anti-retroviral 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 Attorney General had missed these simple constitutional matters and failed to advise itself but further spent tax payers money unnecessarily and in the process humiliated the very government which dignity and esteem she should be providing shelter to.
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 walking the streets, Dr. Molokomme failed to research and present such mathematical figures to the courts that the Government is 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 was once again not available in court to represent the government but rather sent her juniors to do the work for her. Responding to The Botswana Gazette a local prominent layer lashed out at the Attorney General: “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 activist.” 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 is not uniform and generally requires 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 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. 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 prominent lawyer rubbished off such, 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 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 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
Just after the 2014 general elections, the Attorney General found herself having to represent the President and the Government of Botswana in a case in which opposition parties were challenging the notion that election of the Speaker and the Deputy Speaker of the National Assembly and the endorsement of Vice President should be done by open show of hands in Parliament.
The opposition applied that such 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 this woman (Attorney General) was going to win the case; it was a straight forward case. How does an upright lawyer defend a case like this one? Why did she fight 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 competence. 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, as her norm. She rather engaged the services of a private lawyer, Tafa to represent the President and the government. She also sent her junior, Morulaganye Chamme to represent government. The President and the Government lost this case with costs. The state had to pay money in the region of P2.5 million as cost of the case. Dr. Molokomme did not only mislead and fail the state and the President; she also failed to appear in court and worse unnecessarily spent P2.5 million of tax payers’ money that she should not have had to spend had she done her work, or rather, had she been a competent legal officer.
BOFEPUSU vs Attorney General (de-registration)
Another interesting case that came before the Courts is the one in which the Government wanted to de-register the Botswana Federation of Public Sector Unions (BOFEPUSU) arguing that BOFEPUSU had not been registered procedurally. The Attorney General wanted the court to annul the registration of BOFEPUSU in what many viewed as a political move to reduce the powers of trade unionism and frustrate it as it was seen as sympathetic to the opposition. The registrar of the trade unions and employers organisation had struck the public service union off the roll in 2009 saying it was registered by mistake and the trade union federation, BOFEPUSU had successfully challenged such a move and won a court case against its deregistration. The Attorney General lost this case with costs.
In the final hearing of this case, the Attorney General did not even show up in court nor did she send anyone to represent the government. Speaking to The Botswana Gazette, a prominent lawyer expressed disappointment at the Attorney General noting that “this non-appearance of Mma Molokomme to argue cases in court also speaks volumes about her competence as the Attorney General, it will appear she does not only fail to advise the government but she further fails to represent the same state.”
The prominent lawyer closed by displaying shock and dismay that it beats legal intelligence that Dr. Athalia Molokomme continues to oppose cases which she loses both at the High Court and the Court of Appeal with costs yet President Khama continues to retain her as the country’s Attorney General. Dr. Molokomme has never practiced law; she was only a lecturer at the University of Botswana where amongst other things she taught mainly customary law. That perhaps explains why she never and has never argued cases in court. “That she (Dr. Athalia Molokomme) was a High Court judge though having never practiced law speaks volumes about her appointment, one wonders why former President Festus Mogae appointed her,” the lwayer said. The prominent lawyer closed by highlighting that it is important that both the state and the public scrutinise her and review her performance because not only is she paid through public taxes but she is using the same in all these cases that she is losing and hence can not be ignored.
Continuing the discussion with the 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
Just after the 2014 general elections, the Attorney General found herself having to represent the President and the Government of Botswana in a case in which opposition parties were challenging the notion that election of the Speaker and the Deputy Speaker of the National Assembly and the endorsement of Vice President should be done by open show of hands in Parliament.
The opposition applied that such 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 this woman (Attorney General) was going to win the case; it was a straight forward case. How does an upright lawyer defend a case like this one? Why did she fight 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 competence. 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, as her norm. She rather engaged the services of a private lawyer, Tafa to represent the President and the government. She also sent her junior, Morulaganye Chamme to represent government. The President and the Government lost this case with costs. The state had to pay money in the region of P2.5 million as cost of the case. Dr. Molokomme did not only mislead and fail the state and the President; she also failed to appear in court and worse unnecessarily spent P2.5 million of tax payers’ money that she should not have had to spend had she done her work, or rather, had she been a competent legal officer.
BOFEPUSU vs Attorney General (de-registration)
Another interesting case that came before the Courts is the one in which the Government wanted to de-register the Botswana Federation of Public Sector Unions (BOFEPUSU) arguing that BOFEPUSU had not been registered procedurally. The Attorney General wanted the court to annul the registration of BOFEPUSU in what many viewed as a political move to reduce the powers of trade unionism and frustrate it as it was seen as sympathetic to the opposition. The registrar of the trade unions and employers organisation had struck the public service union off the roll in 2009 saying it was registered by mistake and the trade union federation, BOFEPUSU had successfully challenged such a move and won a court case against its deregistration. The Attorney General lost this case with costs.
In the final hearing of this case, the Attorney General did not even show up in court nor did she send anyone to represent the government. Speaking to The Botswana Gazette, a prominent lawyer expressed disappointment at the Attorney General noting that “this non-appearance of Mma Molokomme to argue cases in court also speaks volumes about her competence as the Attorney General, it will appear she does not only fail to advise the government but she further fails to represent the same state.”
The prominent lawyer closed by displaying shock and dismay that it beats legal intelligence that Dr. Athalia Molokomme continues to oppose cases which she loses both at the High Court and the Court of Appeal with costs yet President Khama continues to retain her as the country’s Attorney General. Dr. Molokomme has never practiced law; she was only a lecturer at the University of Botswana where amongst other things she taught mainly customary law. That perhaps explains why she never and has never argued cases in court. “That she (Dr. Athalia Molokomme) was a High Court judge though having never practiced law speaks volumes about her appointment, one wonders why former President Festus Mogae appointed her,” the lwayer said. The prominent lawyer closed by highlighting that it is important that both the state and the public scrutinise her and review her performance because not only is she paid through public taxes but she is using the same in all these cases that she is losing and hence can not be ignored.