The Law Society of Botswana has written a hard-hitting letter to the Minister of Defense, Justice and Security complaining on how the Ministry is handling the issuance of COVID-19 permits to their members.
In the letter titled 'LAW SOCIETY OF BOTSWANA’S DISAPPOINTMENT WITH IMPLEMENTATION OF COVID-19 REGULATIONS BY MINISTRY OF DEFENCE, JUSTICE AND SECURITY', addressed to Minister Kagiso Mmusi released yesterday by LSB's secretariat, the Society says after a series of engagements to get clarity in respect of the process for issuing permits to legal practitioners (who in terms of the Emergency Powers (COVID-19) Regulations, 2020 are classified as essentials), the Ministry has through a press release issued on 14 April 2020, directed that the issuing authority in respect of permits for Ministry of Defence, Justice and Security (“the Ministry”) shall be the Registrar of the High Court in respect of litigation matters, and the Ministry as regards other non-litigation urgent matters.
The release limits the issuance of permits to legal practitioners who are seized with matters that the Registrar deems to be extremely urgent and those dealing with non-litigation matters that the Ministry deems to be urgent.
LSB contends that the Ministry’s release shows complete disregard of the Regulations by introducing additional requirements that run contrary to the clearly expressed intention of the lawgiver. It says the clear intention of the lawgiver was that legal practitioners are essential service, and it did not confer discretion on the authorising officer to introduce additional requirements for the issuance of a permit.
"These Regulations were passed by the President and approved by Parliament. To now introduce other conditions post facto is to undermine the legislative process that was followed in passing the Regulations". LSB contends further that the issuance of permits by the authorising officer to legal practitioners should be "purely administrative" with the only questions to be considered being whether the person who seeks the permit is a licensed legal practitioner, and whether the form that has to be completed, has been properly filled-out.
"Many state-sponsored abuses of freedoms and liberties take place under the cloak of state of emergency; we believe it was partly in recognition of this that the law-giver declared legal practitioners an essential service". During such periods, it becomes critical that those who may fall victim to these abuses have unhindered access to a legal practitioner.
Subjecting the grant of permits to instances which the Registrar or the Ministry, in their wisdom, deem to be urgent therefore "chills the right to legal representation" which freedom is more critical in a state of emergency, says LSB. “As a result of the Ministry’s absurd implementation of the Regulations practitioners are unable to meaningfully consult with their clients until they have been given permits”.
However, in many instances, it may be impossible to determine whether a matter satisfies the urgency requirement until there has been an opportunity to consult. The requirement to seek a permit from the Ministry in respect of non-litigation matters that are urgent requires legal practitioners to violate the common law duty of confidentiality that they owe their clients, reads part of the letter.
"We further have grave doubts as to whether the Ministry is competent to express a view as to whether a matter is urgent or not, as it has no internal expertise in the practice of law." Such requirement, contends LSB, also undermines the independence of the legal profession, which is an important feature in a democratic set-up that recognises the separation of powers between the judiciary, legislature and executive.
A legal practitioner should never have to depend on the subjective assessment of his legal matter by the executive before being given a permit to continue with it, says LSB. “In our view, the natural home for the processing of permits is the Council of the Law Society of Botswana, which maintains a record of all compliant legal practitioners.
"The Council of the Law Society will continue to urge our members to minimise the risk of spreading COVID-19 by only leaving their homes to go to the workplace for matters that deserve their urgent attention". However, it says the call as to whether a matter requires urgent attention should be that of the legal practitioner and not the Government; in as much as a doctor and not the Government makes a determination as to which patients need to be attended to.
"It is an insult to the independence of the legal profession, and overly paternalistic to leave it to persons with no experience in regulating the profession to decide which legal matters warrant permits. We call upon the Ministry to reconsider its position. We hope and trust that the rule of law will eventually prevail, and the Ministry will see the light and revise its position,” reads the letter. It reads further that, "We do not believe that there is any reason the LSB should not be able to regulate its members as regards the permits or indeed to suspect, as the Ministry seems to, that practitioners want to abuse the permits.”