Botswana Judge Onkemetse Tshosa has ordered High Court registrar, Advocate 'Mathato Sekoai, to appoint pro deo lawyers to represent five murder-accused soldiers.
Pro deo lawyers are usually appointed to represent suspects who cannot afford their own lawyers or are without legal representation for various other reasons.
Justice Tshosa's decision follows this week's decision by the soldiers' lawyers to withdraw their services on the grounds that they cannot be complicit to the alleged inhuman treatment of their clients.
The five soldiers are Captain Litekanyo Nyakane, Lance Corporal Khauhelo Makoae, Lance Corporal Sebilo Sebilo, Privates Tšepo Tlakeli and Thebe Tšepe.
They are accused of murdering Thabang Mosole, Monyane Matsie and Pakiso Ntala Letatabe at Ha-Motanyane, Mafeteng in 2012.
Their lawyers, Advocates Zwelakhe Mda, Napo Mafaesa, Lintle Tuke and Mkhantji Kao, are among 10 lawyers who withdrew their services from their clients to force Chief Justice Sakoane Sakoane, the government and SADC leaders to address what they say is the deliberate violation of their clients' rights by the state.
They also demanded the withdrawal of all foreign judges, including Justice Tshosa, who were recruited by the government with SADC and European Union (EU) assistance to preside over the high-profile trials of politicians, serving and former members of the security agencies.
In his submission to Justice Tshosa this week, Adv Mda said they had withdrawn their services to protest the "injustices" against their clients. He said their clients were often denied food in custody and came to court hungry.
He also alleged that their clients were not afforded adequate time to consult their lawyers to prepare for their trials.
"We owe this court respect and to that end, the position that has been taken by the lawyers representing the defendants, including myself, is to withdraw from these cases and the reasons are clearly articulated in our letter (to Justice Sakoane and others)," Adv Mda said.
"To summarise the letter, this (withdrawal of services) is due to the sub-human conditions that our clients are suffering in prison. It is also due to the fact that they have been systematically denied food and they are coming to court on empty stomachs. I have even confirmed with them today that they are hungry now.
"There have been attempts on various occasions to bring these conditions to the attention of the court and the powers that be but it has not been of any use.
"Our understanding is that the fairness of a trial does not only entail the actual trial itself but the pre-trial processes as well. And in our view, the conditions are such that there is just no way that a fair trial will be possible.
"It would therefore be complicit of us if we continued with the case under these conditions because it gives a false perception our clients are being tried under due processes.
"The records will not reflect that these accused persons were not afforded time to prepare adequately or that they were actually hungry while appearing in court.
"So, we felt under these circumstances, that we have to step aside and formally withdraw before this court. But we are not entirely walking away from the case. We will proceed with the matter as soon as those concerns have been addressed," Adv Mda said.
In reply, Crown Counsel Mosoeunyane Masiphole submitted that the lawyers' withdrawal was merely a repeat of the lawyers' tactics of delaying the trial.
Adv Masiphole urged Justice Tshosa not to allow the lawyers to hold the court and the entire judicial system to ransom.
"This court should order the registrar to appoint pro deo counsel for the accused for the sake of the trial to proceed. We submit that the defence should not be allowed to hold this court and the entire judicial system to ransom. The defence has been trying to frustrate the case and this withdrawal is one of the clearest examples of those delaying tactics," Adv Masiphole said.
Justice Tshosa then ordered Adv Sekoai to appoint pro deo lawyers to represent the accused.
"The defence team have formally withdrawn from the matter. I hereby order the registrar (Adv Sekoai) to appoint pro deo counsel for all the accused. This matter will proceed on 27 November 2020," Justice Tshosa ordered.