Equality of arms and aspects of the right to a fair criminal trial in Botswana

[摘要] ENGLISH ABSTRACT: The guarantee of a fair trial is fundamental to the criminal process of every modernsociety. Like all civilised nations, Botswana's legal order provides for the protection ofaccused persons through the guarantee of a fair trial. But equality of arms, a centralfeature of medieval trial by combat, seems to have disappeared from modern criminalprocedural systems. The question arises, therefore, whether criminal justice systemssufficiently cater for the fair trial of accused persons. This thesis will argue that thepresent legal and institutional framework for the protection of fair trial rights in Botswanafalls short of guaranteeing procedural equality and that this severely compromisesfairness. The institutional framework does not support equality of arms and thereforeleaves procedural rights in a basic state of application. The thesis, therefore, seeks toanalyse the protection of fair trial rights in Botswana in light of the principle of equalityof arms.The thesis explores the origins and theoretical foundations of the principle. It recognisesthat the present application of the principle occurs by implicit countenance. The absenceof any constitutional recognition of the principle leaves procedural rights in a basic stateof application. The thesis discusses the practical implications of an express recognitionand constitutional application of the principle in the adversarial system.Equality of arms should be central in the criminal process and no party should have anunfair advantage over the other. The thesis recognises that the prosecution is in a positionof advantage in that it has the support of the state. This advantage manifests itself in theform of vast resources regarding expertise, investigatory powers and legislative powers.Disparities in resources, the ability to investigate and access to witnesses create aninequality of arms between the state and the accused. This can only be balanced andcountered by empowering the accused with constitutional and procedural rights thatspecifically protect the accused in the face of the might of the state. These proceduralrights include the presumption of innocence, the right to legal representation and the rightto disclosure. It is argued, however, that though accused-based rights and constitutionalrules of procedure generally protect the accused and ensure that the process is fair, theymainly remain theoretical declarations if they are not applied in line with equality ofarms. In other words, the meaningful enjoyment of these rights by the accused, demandsthe strengthening of resources and legislative and institutional governance. Fairness incriminal trials is epitomised in the balance between the overwhelming resources of thestate and the constitutional protection of the accused. Otherwise, the constitutionalprotection afforded to the accused is compromised.The first part engages the reader with the development of accused-based rights andintroduces the constitutionalisation of procedural rights in Botswana. It discusses thescope and application of the principle of equality of arms, develops its relevance to theadversarial system and justifies an application of the principle in Botswana domestic law.It makes a comparison between the adversarial and inquisitorial models whilerecognising the growing tendency towards convergence. It highlights the adversarialsystem as interest-based, and recognises the indispensability of the principle of equalityof arms to such a system. While recognising that inquisitorial procedures often offendequality of arms, the role of the inquisitorial system in ensuring equality of arms is alsorecognised. It measures and analyses the normative value, application and recognition ofequality of arms in Botswana's legal system, arguing for express recognition and aconceptual application of the principle by the courts. It is reasoned that expressrecognition of the principle will result in fuller protection and better realisation ofaccused-based rights. Exploring the adversarial-inquisitorial dichotomy, it recognises theneed for convergence, but emphasises the principle of equality of arms and the right toadversarial proceedings as the foundation for fair trials.The second part analyses the investigation process and generally bemoans the greatinequalities at this stage of the criminal process. It discusses procedural and evidentialrules that serve to minimise the imbalances and the role that exclusionary rules play inensuring fair trials and reliable verdicts.The third part identifies specific trial rights which are relevant to the principle of equalityof arms. Central to the discussion are the right to legal representation and thepresumption of innocence which are discussed in chapters 7 and 8 respectively. Thesetwo important rights are central to the protection of the accused but unfortunately are themost compromised due to lack of resources and legislative intervention. Chapter 9 dealswith other rights that are relevant to the principle as well as the ability of the accused topresent his case and effectively defend himself. It emphasises the need for the courts toengage in the trial, thereby enabling the unrepresented accused.The fourth part contains final conclusions which argue that the principle of equality ofarms forms the basis for the full realisation of individual procedural rights and advocatesfor the recognition of the principle in the Botswana legal order. It is concluded that theconstitutional enshrinement of fair trial rights and their basic application by the courts,without actual measures to ensure their realisation, are insufficient. Suggestions includelegislative and institutional reforms, as well as a constitutional recognition of theprinciple of equality of arms.

[发布机构] Stellenbosch University