THE MEANING, GENESIS AND EVOLUTION OF AMICI CURIAE

There is no universally accepted definition of the concept of amicus curiae. In ordinary legal parlance and literature, the Latin concept of amicus curiae has been loosely interpreted to mean “a friend of the court”. This terse definition has been found to be insufficient in explaining the nature and juridical character of the institution of amicus curiae.Footnote ⁷ According to Bellhouse and Lavers, this definition is “deceptively simple”.Footnote ⁸ Mohan explains that the complexity in the definition of the concept of amicus curiae emanates from the mutation of this institution as it endured centuries of development and transformation in different legal cultures and traditions, and how it was variously understood by courts as captured in judicial dicta and various legal dictionaries.Footnote ⁹ Despite these definitional difficulties, valiant attempts have been made to sketch out working definitions of the concept. The Law Lexicon, inspired by common law traditions and commentary, has defined an amicus curiae as “one, who volunteers or on invitation of the Court, instructs the Court on a matter of law concerning which the latter is doubtful or mistaken, or informs him on facts, a knowledge of which is necessary to a proper disposition of the case”.Footnote ¹⁰

The Dictionary of Modern Legal Usage Footnote ¹¹ and the Corpus Juris Secundum Footnote ¹² adopt the definition of amicus curiae given in the case of New England Patriots Football Club, Icl v University of Colorado: “one who, not a party, but, just as any stranger might, gives information for the assistance of the court on some matter of law in regard to which the court might be doubtful or mistaken rather than one who gives a highly partisan account of the facts”.Footnote ¹³

The Concise Oxford Dictionary simply defines an amicus curiae as “an impartial adviser in a court of law”.Footnote ¹⁴Black's Law Dictionary states that an amicus is “a person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter”.Footnote ¹⁵ For its part, the Meriam-Webster Dictionary describes an amicus as “a professional person or organization … that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question”.Footnote ¹⁶ A red flag must be raised here that an amicus must be distinguished from an intervener. Whereas the latter is partisan and can argue a case on behalf of one party to the litigation, the amicus is expected to render his services to the court in a dispassionate and impartial manner. Indeed, in its traditional conception, an amicus was not party to the proceedings but served as a neutral and impartial assistant to the judiciary “providing advice and information to a mistaken or doubtful court”.Footnote ¹⁷

Despite their practical usefulness, the above definitions taken either singly or together do not completely or comprehensively define the nature and character of the institution of amicus curiae. After a survey of similar definitions, Mohan presented the confusion emanating from these kinds of definitions as follows:

These questions go beyond just mere linguistic semantics. It will be acknowledged that the suggested definitions speak to what an amicus does as opposed to what it is. Thus, these questions by Mohan seek to establish what the institution of amicus curiae really is, beyond its roles. Despite the shortcomings of these attempted definitions, it is argued that they suffice in helping a reader to gain insight into the basics of the institution of amicus curiae. Further, it appears that definitional difficulties associated with the concept of amicus curiae only exist at a theoretical level and have not presented much difficulty in practice or application. In practice, it is easy to tell what an amicus is from what it is not. Thus, defining an amicus would appear to be a mere intellectual or emotional concern rather than a practical need. Courts recognize amici and work with them without defining them. Indeed, there are no instances in which a court has been troubled by the question of whether a particular person or entity is an amicus or not. Thus, to borrow the colloquial expression of Justice Potter Stewart in Jacobellis v Ohio, “I shall not today attempt further to define [an amicus] … and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”Footnote ¹⁹

The precise origins of the amicus institution have been the subject of a raging debate among scholars. One view is that the institution originates from the common law despite its prevalence in civil law jurisdictions.Footnote ²⁰ In terms of the early common law, any person in court could volunteer to advise the court on a novel or complex legal or factual issue.Footnote ²¹ However, the commonly held view, which the present author also shares, is that the institution of amicus curiae has its roots in Roman law. This view stems from the long-standing tradition in Roman Law under which courts could appoint third parties who were unconnected to or uninterested in the litigation to serve as advisers to the court and render assistance to it in the provision of legal and factual information on unfamiliar and difficult questions.Footnote ²² Under Roman law, a judicial tribunal was provided with “legal information that was beyond its notice or expertise”.Footnote ²³ In addition, in early Roman times, there existed a practice of appointing a consilium or group of independent advisors to magistrates, which is akin to the appointment or use of amici today.Footnote ²⁴ This practice is said to have found its way into the corpus of the common law in the 14th century.Footnote ²⁵ Lowman posits that the lineage of the amicus curiae can be traced to Anglo-American law in the 14th century and Roman law.Footnote ²⁶ Although it is not clear as to when the English courts embraced the amicus curiae in litigation, Krislov observes that amicus curiae participation in public law litigation was extensively reported in English law reports in the 17th and 18th centuries.Footnote ²⁷

For a plethora of reasons, chief among them being the complexity of the American federal system, courts in the United States were originally disinclined to allow the participation of amici curiae in matters before them.Footnote ²⁸ For instance, it is said that, in the 1806 case of Strawbridge v Curtis,Footnote ²⁹ the US Supreme Court preliminarily considered the right of “parties in interest” to appear before it and decided against it.Footnote ³⁰ It is also said that it was not until 1823 that the US Supreme Court took the liberty to allow amicus participation in litigation in the case of Greed v Biddle. Footnote ³¹ From this historical epoch, the practice of amicus curiae participation in litigation extended beyond the frontiers of the United Kingdom and the United States to other jurisdictions around the world.Footnote ³² For most territories in Africa, including Botswana and South Africa, the amicus curiae was introduced to their legal systems through colonization as part of the received law. Since both Botswana and South Africa are former British territories and recipients of her common law, the amicus curiae in these two jurisdictions can be said to have been parcelled to them by Great Britain through its common law and it is thus part of their colonial legacy.Footnote ³³

Despite the initial reluctance of the US to embrace amicus curiae participation in litigation, in the following century, the amicus curiae institution gained enormous credence and influence in litigation in the US. It is said that an amicus curiae submitted at least one written brief in about 85 per cent of the cases heard by the Supreme Court by the end of the 20th century.Footnote ³⁴ Collins estimates that between 1946 and 2001 amici in the US filed 15,214 briefs in 3,865 cases.Footnote ³⁵ However, it has been pointed out that only half of the amicus briefs in these cases touched on human rights issues.Footnote ³⁶ Although it is not its typical practice, the US Supreme Court has, on occasion, based its judgments on views raised by amici.Footnote ³⁷ An exponential increase in amici participation, especially in human rights litigation, has also been reported in other jurisdictions including Canada, Australia and the UK, with the trend increasing sharply in recent decades.Footnote ³⁸

The endurance of the amicus institution from as early as the 14th century to the present day, without the loss of relevance as happened with other Roman law procedures and practices of the time, can be attributed to its ability to adapt to changing circumstances in the litigation process over the years. Owing to its flexibility and malleability, the institution has undergone changes and modifications over time and space, and has thus, throughout its evolution in history, been used as an organic and flexible judicial tool to supplement the shortcomings of the adversarial litigation process, frequently reconfiguring itself as the dynamics of adversarial litigation processes changed.Footnote ³⁹ Most significantly, the amicus curiae evolved into becoming a procedure for the representation of third party interests who for one reason or another were not parties to the litigation process but were likely to be affected by the outcome of the on-going proceedings.Footnote ⁴⁰ Even in its present conception, the amicus curiae has retained its original traits of adaptability, flexibility and dynamism. It is no longer just a mere friend of the court, as it were. Today, it has become an advocate, a lobbyist and, in recent times, “the vindicator of the politically powerless”.Footnote ⁴¹ As latter-day courts are confronted by more complicated human rights cases and are seeking innovative techniques to solve these cases, the amicus curiae presents itself as a viable solution to this problem.

Amici have also pervaded the international human rights scene, taking a keen interest in human rights litigation before supra-national courts. Although the amicus curiae procedure was originally a feature of municipal law, today various international judicial bodies accept third party procedures or interventions in the form of amicus briefs, and this practice is becoming increasingly entrenched.Footnote ⁴² International judicial tribunals that admit amici include the International Criminal Tribunal for former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the International Criminal Court and the International Court of Justice.Footnote ⁴³ This last court allows third party interventions in both contentious and advisory proceedings.Footnote ⁴⁴ Clearly, as the discourse of human rights assiduously gains credence in the world, human rights judicial tribunals have also adopted the amicus curiae procedure to help in the course of implementing human rights. Commenting on the role of amici curiae in international human rights litigation, one commentator has stated that: “[i]ndividuals and human rights NGOs in Europe and the Americas have exploited the concept of the amicus curiae as a mechanism for participating in, and shaping the course of, human rights adjudication before the European Court of Human Rights and the Inter-American Court of Human Rights.”Footnote ⁴⁵

The participation of amici curiae before African continental and sub-regional judicial tribunals is still at its nascent stage. In this regard, Mohamed argues that, with the benefit of history, African human rights judicial tribunals should take a leaf from the flexible approach of judicial organs of the European and the inter-American systems in allowing amicus curiae participation in human rights litigation.Footnote ⁴⁶

THEORETICAL FOUNDATIONS

As shown above, the participation of amici curiae in litigation is now hallowed by long-standing judicial tradition. However, amicus participation in human rights litigation is of recent history. Initially amicus curiae participation was predominant in municipal courts of the Anglo-American tradition.Footnote ⁴⁷ Although originally unpopular in civil law legal systems, local courts of this system have gradually been allowing amicus participation in litigation.Footnote ⁴⁸ Three main theoretical justifications have been postulated to articulate the value or benefit of the involvement of amici curiae before municipal courts. The first is that an amicus provides assistance to the court as a dispassionate, neutral or disinterested “friend” to help the court arrive at the most appropriate, fair and equitable conclusion.Footnote ⁴⁹ In its original conception, an amicus was a “bystander” who helps courts of law by providing them with relevant information on issues of both law and fact or any other aspect of a case that is relevant to a decision.Footnote ⁵⁰ In this regard, Justice O'Connor of the US Supreme Court trenchantly observed that amici “file briefs calling our attention to points of law, policy considerations, or other points of view that the parties themselves have not discussed”.Footnote ⁵¹ More critically, the learned former judge added: “amicus briefs invaluably aid our decision-making process and often influence either the result or the reasoning of our opinions”.Footnote ⁵² In this regard, the South African Constitutional Court stated in Re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others that:

Again, in Hoffmann v South African Airways,Footnote ⁵⁴ the Constitutional Court gave the following account of the role of an amicus in litigation:

In addition, an amicus may also help in judicial decision-making by supplying “background and unrepresented or underrepresented relevant information” which places the court in a position to make epistemologically sound decisions informed by their broad “social legal and factual context[s] and consequences”.Footnote ⁵⁶ It has been stated within the US context that an amicus brief “provides the justices with an indication of the array of social forces at play in the litigation”Footnote ⁵⁷ thus helping in identifying the cases and issues that bear special significance in a broad socio-economic, political and legal sense.Footnote ⁵⁸ An amicus can also enhance the success of litigation because it supplies additional information which fills existing gaps in the on-going case; this may work to bolster arguments of direct parties to the proceedings.Footnote ⁵⁹ Sometimes amici bring the court's attention to some factual situation or legal point strategically or unintentionally excluded from the attention of the court by the parties.Footnote ⁶⁰ In this way, an amicus places a dispute for adjudication in a panoramic context, thus enabling the court to enter an appropriate ruling on the case. Amici curiae also factor to the case viewpoints and interests which could have been easily ignored or underrepresented or shunned by the parties, thereby enhancing the accuracy or correctness of the court's decision. Qualitative research carried out in the US has shown that such additional information that is supplied by the amici “presents the dispute from another legal perspective, discusses policy consequences, or comments on norms governing the interpretation of precedent or statutes”.Footnote ⁶¹ It has been said that “through a variety of inputs, the courts will obtain the fullest exposure to the potential effects of the decision”.Footnote ⁶²

The institution of amicus curiae becomes singularly useful when the courts have to determine complex and / or novel legal and factual issues.Footnote ⁶³ The courts generally consider information supplied by amici to be reliable and useful in making decisions, since an amicus is deemed impartial.Footnote ⁶⁴ The idea is to ensure that, at the end of the day, the court enjoys the benefit of the best logic or argument and also that it is presented with the fullest array of interests involved in a particular case. A survey of the practice of amicus curiae participation in the US has revealed that amici are “most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases”.Footnote ⁶⁵ The input of amici is also particularly useful where “party lawyering is not so great and the amicus filer can brief the case better on both the law and its applications”.Footnote ⁶⁶

The second justification of amicus participation lies in the fact that amici curiae provide an opportunity for public participation in institutions of democracy, such as courts of law. Through this role, amici play two critical, distinct but related functions in litigation. First, they provide greater democratic legitimacy to the process of litigation.Footnote ⁶⁷ In this connection, the procedure vindicates participatory democratic values by allowing courts to listen to the voices of those who, though lacking substantial and direct interest to be parties to the litigation, are, however, likely to be affected by the consequences of the court's decision in the matter. In this manner, amici ensure the representation of a wide array of views and interests in tandem with the democratic notion of equal participation. Secondly, opening the portals of courts to amici enhances the transparency of the judicial system, which is a virtue of democracy.Footnote ⁶⁸ In addition, because the amicus procedure broadens the range of parties and interests involved in a matter, it has the enormous potential to ameliorate the “legitimacy deficit that particularly haunts judicial policy-making by unelected judges”.Footnote ⁶⁹ In this way, amici contribute significantly to preserving the institutional legitimacy of courts.Footnote ⁷⁰ The amicus procedure also gives a human face to justice in that “the willingness of courts to listen to interveners is a reflection of the value that judges attach to people”.Footnote ⁷¹

The third rationale for amici participation lies in the potential of amici themselves to develop the law. In this regard, the participation of amici in litigation presents them with an opportunity to advance “their interests and perceptions of ‘good law’ and society by influencing the outcome of judicial proceedings”.Footnote ⁷² There are other reasons that make intervention in proceedings by amici curiae desirable. They include the fact that amici are not subject to adverse cost awards if the position they seek to motivate does not win favour with the court. Conversely, an amicus is not entitled to costs save in two instances: where one party unreasonably opposes amicus intervention in the case;Footnote ⁷³ or where a party to the case causes an amicus to suffer wasted costs, through postponement for example.Footnote ⁷⁴ Further, since an amicus curiae is not party to the case, and thus not bound by the judgment in the merits, they are at liberty to re-litigate the same issues without falling foul of the principle of res judicata.Footnote ⁷⁵ Furthermore, standing rules of admission of amici curiae are generally relatively relaxed compared with those that govern the institution of proceedings by a party to the litigation or an interested third party intervener.Footnote ⁷⁶

THE PRACTICE OF AMICUS CURIAE IN SOUTH AFRICA

The participation of amici curiae in litigation in South Africa is now fully entrenched in the South African legal system. It has been said that South African courts “are increasingly recognizing that certain matters … must necessarily involve the perspectives and voices of organizations or entities that may not have a direct legal interest in the matter in the traditional sense, often asserting (their conceptions of) the public interest”.Footnote ⁷⁷ As already pointed out above, in Jeebhai, Chachalia J expressed his displeasure “with an unmeritorious and churlish objection to the admission of an amicus”Footnote ⁷⁸ by condemning the objecting party with an adverse order of costs, thereby demonstrating the court's commitment to the promotion of amicus curiae participation in litigation in appropriate cases. Mubangizi and Mbazira observeFootnote ⁷⁹ that the involvement and description of the role of amici in litigation in South Africa as found in law reports can be traced back as far as 1939 to the case of Connock's (SA) Motor Co Ltd v Pretorius. In that case, Millin J is reported to have said “the definition of the term is to be found in several legal dictionaries [that] speak of an amicus as a bystander - someone who is present in court and not concerned with the matter in hand, who may be counsel or may not”.Footnote ⁸⁰ The learned judge added that an amicus is one who “if he observes the judge in doubt about something … asks leave to come to his assistance … and help the judge by pointing out what appears to be in danger of being overlooked”.Footnote ⁸¹

The traditional conception of amicus curiae as explained above has undergone a radical evolution both in South Africa and beyond. Today an amicus plays a formal role in litigation and has been assigned very diverse and dynamic roles in assisting the court to reach an appropriate decision. The role of amici in litigation in South Africa has been formalized both by judicial practice through dicta and by legislative enactments. At a legislative level, provision for amici was made in the Rules of the Constitutional Court in 1994.Footnote ⁸² In 2000, a similar rule was inserted into the rules governing procedure in the High Courts.Footnote ⁸³ Rule 10(1) of these rules states: “[s]ubject to these rules, any person interested in any matter before the Court may, with the written consent of all the parties in the matter before the Court … be admitted therein as an amicus curiae upon such terms and conditions and with such rights and privileges as may be agreed upon in writing with all the parties before the Court or as may be directed by the Chief Justice.”

Where consent from the parties has not been obtained, the person or entity seeking to intervene as an amicus may seek intervention from the chief justice by way of an application on notice “and the Chief Justice may grant such application upon such terms and conditions and with such rights and privileges as he or she may determine”.Footnote ⁸⁴ In Institute for Security Studies: In re S v Basson the Constitutional Court ruled that, even where the parties' consent has been sought, an amicus must still apply to the chief justice for admission.Footnote ⁸⁵ Rule 10(6) of the Constitutional Court Rules 2003 prescribes the form and content of an application for admission of an amicus. It requires an amicus applicant to specify their interest in the case to the court, disclose their position in the proceedings, set out the arguments or submissions they seek to advance and their relevance to the case for determination, including their reasons for “believing that the submissions will be useful to the Court and different from those of the other parties”. Under rule 10(7), once admitted, the amicus will be permitted to file written submissions, provided that they do not merely repeat what the parties have already articulated to the proceedings. An amicus is, thus, expected to “raise new contentions which may be useful to the Court”.Footnote ⁸⁶ Under rule 10(8), an amicus shall be “limited to the record on appeal or referral and the facts found proved in other proceedings” and shall not have the liberty to supplement to it and shall, further, not be entitled to present its arguments orally. However, Budlender argues that the court may, on application, permit the amicus to present submissions before the court orally.Footnote ⁸⁷

Although rule 10(8) prohibits an amicus curiae from adding to the facts found on the record, rule 31(1) permits an amicus properly admitted by the court to canvass factual materials not appearing on the record, but relevant to the determination of the issues under consideration, provided that such facts are: a common cause between the parties or otherwise incontrovertible; or of an official, scientific, technical or statistical nature, of which the veracity is capable of easy ascertainment or verification. Budlender eloquently discusses instances in which new factual additions will be permissible. He says:

As a general rule, an amicus will not be permitted to raise a new cause of action without prior express leave of court. Nevertheless, an amicus may seek permission from the court to introduce a new cause of action in its admission application.Footnote ⁸⁹ Such permission may not be refused if it does not require the joining of a new party or if it does not prejudice the existing party.Footnote ⁹⁰ If a matter has been raised before the court at first instance but abandoned before the Constitutional Court, an amicus curiae may still raise it before the latter court.Footnote ⁹¹

Unlike with the Constitutional Court, the Supreme Court may admit an amicus curiae without leave of the court, provided the consent of the parties has been sought and granted.Footnote ⁹² The president of the court determines whether or not to admit an amicus “upon such terms and conditions and with such rights and privileges as he or she may determine”.Footnote ⁹³ In relation to the High Court, rule 16A of the Rules of the High Court is instructive. It requires that any party to the proceedings who seeks to raise a constitutional question must give notice to the registrar when he files the relevant affidavit or pleading. The registrar then places that notice on the notice board designated for that purpose as an invitation to members of the public who may have an interest in the case to join.Footnote ⁹⁴ Any person interested in the constitutional question raised in the matter may seek consent from the parties and join as an amicus curiae.Footnote ⁹⁵ Failing consent of the parties, the amicus applicant may apply to the court for leave to join. It appears that amicus participation at the High Court of South Africa is limited to constitutional matters. In the case of Children's Institute v Presiding Officer of the Children's Court, District of Krugersdorp and Others Footnote ⁹⁶ the Constitutional Court held, overruling the earlier decision of the High Court, that rule 16A was wide enough to allow amici to present evidence before the High Court for decision. As a rationale for its position, the court reasoned that rule 16A was:

The court correctly reasoned that the arguments advanced by amici are usually based on a broad matrix of considerations compared to those submitted by parties to the proceedings, which is the raison d’être for an amicus institution, and that such submissions will usually be “premised on facts and evidence not before the court, including statistics and research” and that “it would make little sense to allow the presentation of bare submissions unsupported by any facts”.Footnote ⁹⁸ It opined that “[c]ourts adjudicating constitutional issues, in particular those relating to [rights of] vulnerable groups …, should be slow to refuse to receive evidence that may assist them in arriving at a just outcome”.Footnote ⁹⁹

Mubangizi and Mbazira are correct in their observation that the sterling role played by amici in human rights litigation in South Africa can better be understood if one considers the court decisions and pronouncements on the contribution of amici to jurisprudence in that country.Footnote ¹⁰⁰ Their contribution has been greater by far in economic, social and cultural rights litigation,Footnote ¹⁰¹ but is by no means limited to this area. In the case of Government of the Republic of South Africa and Others v Grootboom and Others (popularly known as the Grootboom case), Justice Albie Sachs had this to say:

In Children's Institute v Presiding Officer of the Children's Court, District of Krugersdorp and Others the Constitutional Court stated that amici play a crucial role in advancing the course of marginalized and vulnerable groups, adding that “amici curiae have made and continue to make an invaluable contribution to its jurisprudence and that their participation in litigation is to be welcomed and encouraged”.Footnote ¹⁰³Amici have participated and filed impactful briefs in numerous other cases, including Mazibuko and Others v City of Johannesburg and Others Footnote ¹⁰⁴ dealing with the right to water under the South African Constitution, The Minister of Health and Others v Treatment Action Campaign (TAC) and Others (2) Footnote ¹⁰⁵ dealing with the right to health, Omar v Government of the Republic of South Africa and Others Footnote ¹⁰⁶ where South Africa's Domestic Violence ActFootnote ¹⁰⁷ was challenged, Carmichele v Minister of Safety and Security and Another Footnote ¹⁰⁸ where the Constitutional Court dealt with the constitutional duty incumbent upon South African courts to develop the common law in line with the spirit, purport and object of the Bill of Rights under South Africa's Constitution, S v Makwanyane and Others Footnote ¹⁰⁹ where the Constitutional Court abolished the death penalty, and Shilubana and Others v Nwamitwa Footnote ¹¹⁰ dealing with the right of a girl child to succeed her father as a chief, to mention but a few.

Apart from commendation extended to amici by judges in numerous cases in which they have participated, it is not clear to what extent courts in South Africa have relied on the views of amici and, thus, it is not possible to gauge what their precise impact has been in human rights litigation in that country. It may be that in some instances courts “pilfer” from amici briefs without acknowledgment. Be that as it may, from the literature consulted in preparing this article, it is clear that participation of amici, mainly in the form of non-governmental organizations (NGOs), has contributed considerably in facilitating human rights litigation and enhancing the quality of judgments of South African courts.

Owing to the uniqueness of South Africa's history, defined by the apartheid policy and its attendant unequal relations and opportunities between blacks and whites, it is not surprising that the country has a sizeable number of NGOs, the majority of which were part of the struggle against apartheid. They fought for democracy through advocacy, mobilization and litigation. With the arrival of democracy in South Africa in 1994, there was “an inevitable shift from challenging an unjust system towards litigating cases that are aimed at enforcing rights enshrined in the Constitution”.Footnote ¹¹¹ This shift made sure that the majority of these NGOs do not lose their relevance in the domain of human rights with the collapse of the apartheid system. NGOs' participation in litigation in South Africa has also been greatly helped by the flexibility of rules of standing that South Africa adopted upon attaining democracy. Apart from NGOs, university research centres and clinics have played a significant role in the development of the amicus curiae procedure.

THE PRACTICE OF AMICUS CURIAE IN BOTSWANA

Unlike South Africa, Botswana has no legislative provisions governing the institution of amicus curiae and its judicial practice in the area is scanty. The constitutionFootnote ¹¹² of the country and rules of procedure of the magistrates courts,Footnote ¹¹³ the High CourtFootnote ¹¹⁴ and the Court of AppealFootnote ¹¹⁵ are silent on the amicus procedure. Thus, it can be said that there is no right to stand as an amicus under Botswana law.Footnote ¹¹⁶ Unlike in South Africa and the US, where the procedure of amicus curiae is governed by legislative provisions, in Botswana the procedure is governed by precedent and the common law.Footnote ¹¹⁷ Explaining the procedure of amicus curiae in Botswana, Kirby P stated in Kgosikgolo Kgafela II Kgafela and Another v Attorney General and Others (Kgafela) that:

The institution of amicus curiae has also not been subject of any scholarly work in the country. An examination of the practice of Botswana's superior courts, which incidentally have the sole jurisdiction to hear human rights claims, reveals that these courts are not always keen to admit amici. This is largely due to the rigidity of the common law rules for admission of amici. In some instances this is born by sheer ignorance on the part of some judges as to the utility of the institution of amicus curiae. Some blame must also go to persons and entities that have the capacity and competence to appear before court as amici and do not avail themselves of this opportunity.

Despite its non-regulation, the amicus curiae institution has featured in a number of cases in Botswana, especially criminal matters, but hardly any human rights cases. In the cases where it features, it has assumed various forms. The most popular or typical form of amicus in Botswana is when legal counsel is requested by the court to appear before it and argue a complex or novel point of law to assist the court in arriving at an appropriate decision. In Bah v Libyan Embassy, a case dealing with the question whether an embassy of foreign state was liable or immune from suit, Dingake J requested the Attorney General “to appear amicus curiae to assist the court in arriving at an appropriate determination”.Footnote ¹¹⁹ Botswana case law is also replete with instances where attorneys have appeared at the request of the court for and on behalf of criminal defendants without being paid.Footnote ¹²⁰ As in other jurisdictions, the professional body of lawyers is allowed to appear as an amicus to advise the court on matters relating to the profession.Footnote ¹²¹ Indeed, under section 10(4) of the Legal Practitioners Act,Footnote ¹²² the Attorney-General, the Law Society of Botswana or any legal practitioner may, with leave of the court, appear as amicus curiae to oppose the granting of the application for admission.Footnote ¹²³ In this context, the Attorney-General, the Law Society of Botswana or any legal practitioner appearing as an amicus does not assume the role of a neutral party expected of an amicus under the common law. As already stated, they may take an adversarial role by opposing the granting of the application for admission. In the case of Bayford v The Law Society of Botswana, Nganunu CJ (as he then was) held that:

Courts in Botswana have also shown an inclination to request the Attorney General to participate as an amicus on matters of national importance in order to ensure that “the views of Government are fully heard”.Footnote ¹²⁵ This appears to have been the understanding of the Court of Appeal in the recent case of Molefi Selabo Ramantele v Edith Modipane Mmusi,Footnote ¹²⁶ where the Attorney General appeared as amicus curiae. It also appears that, where the Attorney General appears as an amicus merely to express the views of the government, qualitative standards of assessing the brief before admission are ignored. It appears that what is of primal consideration is that the views of government must be taken on board in any case of public significance. There are a few cases where amici have featured in human rights litigation in Botswana. These include the case of Good v Attorney General Footnote ¹²⁷ where the learned judge adopted the Black's Law Dictionary definition of an amicus curiae, as a friend of the court who, though not a party to the on-going proceedings, applies to court, or is requested by the court to file a brief in the action because a person has a strong interest in the matter.Footnote ¹²⁸

In Kgafela, Ditshwanelo, one of the few virtually credible human rights organizations in the country, applied to court for admission as an amicus curiae. Even though the case raised important legal issues touching on prisoners' rights to life, dignity, liberty and others, the court refused the appellants admission as amici on the ground that, before an amicus could be admitted, “there must be existing proceedings before the Court brought by qualified parties and on specific issues”Footnote ¹²⁹ and that, since no proceedings were pending before the court, a person or entity could not be admitted as amicus. The facts of this case can be briefly recounted as follows. Gotlhalosamang Gabaokelwe, Modise Tlhokamolelo and Mangombe Tadubane were charged, tried and convicted of murder and condemned to death by hanging. While the convicts were on death row, the appellants, who were the applicants in the court below, KgosikgoloFootnote ¹³⁰ Kgafela II Kgafela, the hereditary chief of the Bakgatla-ba-Kgafela tribe (and a former practising attorney) appearing in person, and Ditshwanelo (the Botswana Centre for Human Rights), a human rights advocacy organization, a registered trust with a board of trustees, based in Gaborone, Botswana, approached the court by way of application seeking temporary stay of execution of the death sentences on the basis that they were based on a constitution which was itself invalid and liable to be set aside. In the words of the first appellant, the Constitution of Botswana is a “fraud” on the ground that it was parcelled to Botswana by her colonial master in connivance with the political leadership of the independence era without input from the general populace of Botswana whose lives it is expected to govern. The applicant's application was dismissed by the High Court, per Leburu J, on the ground that the applicants had no standing as they were not mandated by the convicts by virtue of power of attorney to appear before the court on their behalf and seek the remedies they sought. The High Court also rejected the appellants' alternative argument that they must be granted audience by the court as amici. In refusing the latter request, the court stated that “it is a sine qua non for the intervention of an amicus curiae that there must be existing proceedings before the Court brought by qualified parties and on specific issues”.Footnote ¹³¹ The holding of the High Court in both instances was confirmed by the Court of Appeal, per Kirby P. It is submitted that the logic of the High Court as affirmed by the Court of Appeal is too restrictive and stifles the viability of the amicus curiae institution in human rights litigation in Botswana.

As already indicated, the amicus institution has thus far not taken an active role in litigation in general and in human rights law in particular. Even in the few instances where amici have appeared, their role and input remain unelaborated by the courts. In the majority of cases where amici have appeared, the court will content itself in merely stating that assistance of an amicus curiae was sought to assist the court in arriving at an appropriate conclusion, without indicating the extent to which the amicus has so assisted. In some cases the court will simply extend its gratitude to the assistance rendered by the amicus without disclosing the points that the amicus argued in its briefs, let alone the extent to which the court has relied on the brief. Information relating to the amici's contribution as found in the court judgments is woefully bland and generally uninformative. South African courts also share this weakness, albeit to a lesser extent compared to Botswana. It is only when the usefulness of amici submissions is demonstrably established that it will be possible to assess the quality of their input in litigation and the adjudication of disputes.

LESSONS FOR BOTSWANA

Even though South African courts have also not been very generous in showing the extent to which they are aided by amici in arriving at appropriate decisions in human rights litigation, scholars agree that amici participation in litigation in that country has contributed to the growth of judicial jurisprudence “in ways that enhance promotion and protection of the rights protected under the Constitution”.Footnote ¹³² The judgments of South African courts inspire the evolutionary development of human rights jurisprudence in that country and are followed as if they were precedent in Africa and beyond.Footnote ¹³³ Mubangizi and Mbazira argue that the remarkable jurisprudential revolution in South Africa, especially in the area of human rights, is in the main attributable to the various amici interventions that have worked tirelessly to enhance the quality of court rulings.Footnote ¹³⁴ They point out that amici have intervened in court proceedings armed with “concrete evidence based research” which was also presented to court in the most industrious fashion.Footnote ¹³⁵ They also observe that, in most instances, the amicus interventions have been argued by the most distinguished and eminent lawyers drawn from both the legal profession and academia.Footnote ¹³⁶

The point being made here is that an amicus intervention must be motivated by the possible value-add that an amicus brief would have on the litigation and the resultant judgment. Although courts in Botswana have on occasion called to their aid the expertise of senior legal practitioners, this has been done on a sporadic basis and the courts have missed golden opportunities for developing Botswana's public law jurisprudence by deciding important public law cases alone without amicus participation. One such case is Sesana v Attorney General.Footnote ¹³⁷ This case dealt with the relocation of the Basarwa indigenous people (or the San as they are commonly known) from their central lands in the Central Kalahari Game Reserve to various settlements which were specially designated by the government for them for resettlement. In the main, the case was about the rights of indigenous people. However, of all three separate judgments delivered by the court, the term “indigenous” appears only once in one judgment,Footnote ¹³⁸ despite the fact that the entire case concerned the human rights of indigenous people. It is also noteworthy to point out that none of the judges adopted a human rights approach in the resolution of the dispute even though the dispute was quintessentially of a human rights nature. Although the parties were represented by very senior, able and industrious legal practitioners, there is no doubt that the involvement of amici in this case would undoubtedly have enhanced “both the quality of argument and the more extensive ventilation of relevant issues” and the court would have eventually been “better equipped to arrive at a just decision of the case”.Footnote ¹³⁹ This argument becomes more potent when regard is had to the fact that, in arriving at an appropriate decision, the court was required to look at a matrix of factors, including the historicism of the mode of life of the affected communities, their relationship with the ecological system of the reserve and the applicable norms of international law relating to indigenous people. All these required high expertise in scientific research, in which the court was not grounded.

As demonstrated above, one of the things that have made it possible for active amicus participation in litigation to flourish in South Africa is the fact that the amicus curiae institution has been expressly legislated into place. The law has comprehensively set out the requirements that a person or entity must meet before lodging an application for admission as an amicus curiae. The law has also given courts the mandate to solicit amicus briefs and see to it that those who apply to intervene meet the criteria laid down for admission. For their part, the courts have also been receptive to interventions by amici. It is said that this has been based on the appreciation by judges of the cardinal importance of the input of amici in human rights litigation. To this end, it is argued that Botswana must likewise provide for the participation of amici curiae in the rules of procedure of its superior judicature and also devise a comprehensive set of rules modelled on those of the South African superior courts, specifying, in precise fashion, the form, nature and content of an amicus admission application; in particular, these rules must state, among other things, that the amicus brief must not duplicate submissions of the principal parties and that the amicus must have an interest in the matter. In other words, an amicus must be an interested person. However, the interest contemplated here is not the direct and substantial interest required of a person who joins proceedings as a party.Footnote ¹⁴⁰ The rules of superior courts (the High Court and the Court of Appeal) must mandate the respective registrars of those courts to publicize notices of invitation on designated notice boards to members of the public who desire to intervene in cases that raise important human rights or constitutional questions.

However, these contemplated rules must not be unreasonably stringent so as to undermine that which they have been crafted to foster: amicus participation in litigation. Courts must be strict to reject any amicus brief that, in their considered view, does not add value to the litigation and ultimately to the jurisprudence of the country. In this connection, Mubangizi and Mbazira argue that the court should hear the potential amicus to assess the quality of its submissions before they are closed out.Footnote ¹⁴¹ The present author does not share this view, on the ground that this will mire the wheels of justice in quicksand and cause inordinate delay in the disposal of cases. This argument enjoys greater validity when considered against the backdrop that courts in African countries are already facing an almost insurmountable problem of a backlog of cases. It is instead argued that the rules must provide for a preliminary assessment of the quality of the brief of the amicus by the courts and that, at this stage, there should not be oral submissions. The courts must only consider the written submissions and enter their verdict on them. The amicus must, however, be entitled as of right to make oral submissions once admitted as such.

To this end, it is argued that Botswana will be set on a veritable path for the establishment of a better judicial human rights protection system. It is a truism that Botswana is among the countries in the world that are experiencing a chasm between the rich and the poor. Owing to this unequal social profile, the majority of its people, in particular the poor, women, the elderly, the disabled and many other marginalized and vulnerable people, are, for resource reasons, unable to access the courts to vindicate their rights. The amicus procedure is, thus, an indispensable devise in bridging that “resource gap” by grouping the interests of the various people or groups in the same dispute resolution orbit in an efficient and cheaper way. As indicated above, an amicus procedure serves to converge a wide array of interests of groups or people, including those that are not before the court or party to the dispute, so that their views too can be ventilated before the court. In this manner, the court enters its decision on the matter with the benefit of a wide range of views on the matter. To facilitate greater access to the courts, South Africa has, among other things, deployed the institution of amicus curiae. It must be conceded that the culture of amicus curiae participation cannot just sprout and flourish like anthill-mushrooms of a summer season. It is, therefore, necessary for judicial officers to be thoroughly trained about the value of amicus participation in litigation, and human rights promotion and protection in particular. It is out of such training that a sense of judicial activism that is required for the promotion and protection of human rights can be inculcated in judges' minds. Commenting on the imperative of continual and sustained training of in-service judges, South Africa's former chief justice, the late Ismail Mahomed, stated the following in his welcome address at the first orientation course for new South African judges in 1997:

In relation to this assertion, another former judge of the South African Constitutional Court, Yvonne Mokgoro, has stated that there is a need for positive action to be taken to enhance the competence of judges and that this action should “include continuous education and training for judges, so as to sharpen the competence and efficiency of the Bench”, adding that the need for judicial education is no longer “questionable”.Footnote ¹⁴³ It is through this kind of continuous judicial training that there could be positive and meaningful judicial activism in the country. At present, this activism is woefully inadequate in Botswana's judiciary. Where activism is shown to exist in judgments, it is unaccompanied by erudite research. At a general level, the consequence of the absence of research has been tellingly and spectacularly demonstrated by the delivery of badly reasoned judgments that undermine human rights rather than promoting them. Civil society organizations (CSOs) in the country must also be challenged to build sufficient capacity to enable them to participate in judicial proceedings as amici curiae. At present CSOs in Botswana are extremely weak, disparate and fragmented and cannot step up to the mark and discharge the exacting role of an amicus curiae in such a desperate state of enfeeblement and disorganization.

In South Africa, amici have, in appropriate cases, based their arguments on norms or provisions of international human rights instruments. This has helped to carve a path for South Africa's jurisprudence towards internationally recognized legal norms and values. As presently constituted, Botswana's superior courts are largely manned by conservative and constructionist judges who consider international law as a no-go area. Part of the court's inability to rely on provisions of international instruments is because Botswana is not keen to domesticate these treaties. However, another greater challenge could be that judges of Botswana's superior courts lack the technical expertise of applying provisions of international instruments. The amicus curiae is the most suited procedure or institution to be deployed in an attempt to bring home the seemingly idealistic and far placed norms of international law. Academics, lettered in international human rights law, must also prepare and present briefs as amici in appropriate human rights cases so that courts of law can benefit from their expertise. Unfortunately, in Botswana presently, there is a huge polarity between academia on one side and legal practitioners on the other. This has denied jurisprudence the rewards that could be reaped from the combined efforts of legal academics and law practitioners. This problem has also been observed by Mubangizi and Mbazira in Uganda.Footnote ¹⁴⁴