THE PRINCIPLE OF EQUALITY OF ARMS

The principle of equality of arms is of ancient origin.Footnote ¹ Early trials took the form of battle wherein the accused and accuser fought in armour and rode on horses with batons and fought to the death.Footnote ² The contest ended with the death of one contestant, at which point justice would have been served.Footnote ³ The rules of combat ensured that neither party enjoyed advantage in terms of arms and armaments.Footnote ⁴ The principle has roots in both common and civil law traditions.Footnote ⁵ It is an expression of the natural law principle audi alteram partem [let the other side be heard] which was first formulated by St Augustine.Footnote ⁶ The principle derives modern conceptual development and content from the jurisprudence of the European Court of Human Rights (European Court) and the European Commission of Human Rights (Commission). The principle “involves striking a ‘fair balance’ between the parties, in order that each party has a reasonable opportunity to present his case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent”.Footnote ⁷ Though the principle has flourished and gained acceptance as the bedrock of procedural fairness in the jurisprudence of the European Court as well as international and internationalized tribunals,Footnote ⁸ its scope and application are somewhat constricted and contextualized in the latter.Footnote ⁹ It represents however a pivotal barometer in underscoring the credibility of such tribunals.Footnote ¹⁰ Indeed, the principle forms part of international human rights principles.Footnote ¹¹ The principle has, however, not flourished in domestic systems, not least in Botswana. The principle should be applied in domestic adversarial systems such as Botswana's. This is so due to the nature of the adversarial system, especially in the criminal context. Criminal trials represent a contest between the state, which has enormous resources to investigate and prosecute crime, on the one hand, and the individual, who often has limited resources, on the other. Fairness therefore demands that there must be balance and equality between the key players, and the accused should be assisted to present his case in such a manner that he is not disadvantaged in relation to the prosecution.

NORMATIVE VALUE

Equality in proceedings is recognized in international law. It is engraved in article 14(3)(e) of the ICCPR and article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).Footnote ¹² The European Court has formulated equality of arms as a “principle”, on the basis of article 6 of the European Convention. It has also been coined as a “requirement” or “concept”.Footnote ¹³ However, it would appear that it has not attained the status of law. Toney describes the principle as “a lens through which the requisite procedural fairness in any criminal proceeding can be ascertained. It is a central element of the concept of a fair trial guaranteed by article 6 of the European Convention”.Footnote ¹⁴ The principle therefore remains an essential element of a fair trial, non-observance of which may render a trial unfair.Footnote ¹⁵ In Foucher v France, it was described as “one of the features of the wider concept of a fair trial”.Footnote ¹⁶ Consequently, the principle is not recognized as a right.Footnote ¹⁷ This results in relativity in its application, such that there may be no violation if both parties are equally deprived of a fair trial right.Footnote ¹⁸ Thus, in the case of Jasper v United Kingdom,Footnote ¹⁹ the applicant complained that the results of wire-tapping were withheld from the defence. The court stated that both the prosecution and defence were prohibited from adducing any evidence which tended to suggest that calls had been intercepted by the state and therefore the principle was respected. It has also been held that there was no violation of the principle where both the prosecution and accused were absent during an application for leave to appeal proceedings.Footnote ²⁰ It can be seen therefore that a violation of the principle attracts consequences when the accused has suffered a disadvantage, not because he was deprived of a “right”. It applies in the criminal process in an overlapping form, giving more expression and reality to the application of procedural rights.

The UN Human Rights Committee in its interpretation of article 14 of the ICCPR has linked the normative footprint of the principle to the right of equality before the courts.Footnote ²¹ According to the committee, the right to equality before the courts, which the article sets out to guarantee, is important in safeguarding the rule of law: “[t]he right to equality before courts and tribunals, in general terms, guarantees, in addition to the principles mentioned in the second sentence of Article 14, paragraph 1, those of equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination.”Footnote ²²

The right to equality before the courts ensures equality of arms. This guarantees that the same procedural rights are available to both parties unless distinctions are based on the law and can be justified on reasonable grounds.Footnote ²³ It can therefore be seen that, although the principle receives compelling recognition which is of normative value, it has not been conceptualized as law but as an integral element in the determination of fairness.

EXPRESS RECOGNITION

There is express recognition of the principle of equality of arms by international and internationalized tribunals. The express recognition of the principle by the European Court, the Commission and other internationalized tribunals, such as the ICTY, ICTR and SCSL, has had immediate consequences in that the importance of the preparation of the defence case, and to some extent the allocation of resources, have been given due consideration. Although equality of arms is considered as a single aspect of the right to a fair trial, it is the most crucial factor underlying the fairness of an adversarial trial. The European Court recognizes equality of arms and the right to adversarial proceedings as the two main aspects of a fair trial.Footnote ²⁴ In the setting of adversaries, fairness is likened to sporting activities which involve rules and values, like respect for the opponent, honesty, self-restraint and the desire for victory, but not victory at any cost.Footnote ²⁵ The acknowledgement of the rights of the accused and the fact that the procedure is designed to permit her to defend herself demands equal participation by the accused.

Express recognition of the principle is rare in domestic law, especially in jurisdictions outside the European Union where article 6 of the European Convention and the jurisprudence of the European Court and the Commission are of little consequence. However, specific reference has been made to the principle in South African case law. In Ex Parte Institute for Security Studies: In Re S v Basson,Footnote ²⁶ a prominent South African research institution, the Institute for Security Studies (ISS), had applied to be admitted as amicus curiae [an impartial adviser to the court] in a criminal appeal to the Constitutional Court. The intended submissions of the ISS were unfavourable to the respondent. The state consented, while the respondent (the accused) opposed the application. The court outlined the principles relating to the application in question. It noted that, in order to be admitted as amicus curiae, the applicant should satisfy the court that it would be raising new issues not already covered by the parties. The court was of the view that, since the issues that the ISS intended to raise had already been covered by the state, there was no need to admit the ISS as amicus curiae. Therefore, the application was dismissed. Having discussed the rules relating to the admission of an amicus curiae, the court noted at the end of the judgment:

The court did not set out to embrace the principle of equality of arms as a functional part of South African law. If this had been the intention, the court would have given a conceptual and in-depth analysis of the principle as it did in relation to the amicus curiae question. What is clear however is that it did recognize the principle as one element of fairness in criminal proceedings. It recognized that criminal proceedings are a contest between the state and the accused. It therefore thought it unfair to permit arguments that would strengthen the state's case and create an unnecessary imbalance.

It is clear that the respondent would have had an opportunity to respond to the arguments of the ISS. One wonders therefore why the court was of the view that allowing the submissions of the ISS was against the interests of justice. The court did not elaborate and one is left to speculate. Of course, though ISS's submission was principled and made purely from a human rights perspective, the respondent would clearly be disadvantaged as this would have added to the already elaborate resources at the state's disposal. The respondent and his lawyers would not have had sufficient resources to counter the manpower in terms of lawyers or the amount of research that the ISS would have brought into the forum. Whereas it appears from the judgment that the issue of equality was mentioned obiter, the court did refer to the imbalance of the situation as “special circumstances” which one may say were a determining factor in the court's decision. The normative notion of the court's reference to equality of arms is not clear. The issue before the court did not arise from matters relating to the constitutional right to a fair trial. Although mention was made of “fairness” and the “interests of justice”, the court did not therefore link the principle to any specific constitutional right or the right to a fair trial. It is not clear therefore whether the court had in mind a general common law notion of fairness or whether the court was referring to the constitutional framework. One cannot infer from the jurisdiction of the court that it could only have been referring to constitutional fairness, and there is no bar to it relying on a general common law notion of fairness and justice. Even though several questions were left open, the case clearly establishes that imbalances between the state and the accused in criminal proceedings may fall foul of the principle of equality of arms. The case is significant in that it lays the foundation for the application of the principle in South African law.

The principle has been specifically referred to, albeit in passing, in AustralianFootnote ²⁸ and New ZealandFootnote ²⁹ case law, mostly in civil and administrative matters. However, in the Australian case of Ragg v Magistrates' Court of Victoria and Corcoris Footnote ³⁰ the principle received full analysis and articulation. Mr Ragg was an Australian federal police officer who had brought six charges of tax evasion against Mr Corcoris, a Melbourne property developer. To assist in his defence at the committal, Mr Corcoris had issued Mr Ragg with two summonses to produce certain specified documents to the Magistrates' Court of Victoria. Mr Ragg made an application to a magistrate for orders striking out most of the paragraphs of the summonses. The magistrate rejected the application. Mr Ragg then applied to the Supreme Court of Victoria for a review of the magistrate's decision. He contended that the summonses were too wide and required the production of a large number of irrelevant documents. He further contended that the evidence to be laid against Mr Corcoris and certain other evidence had already been handed over to him in preparation for the committal. Mr Corcoris on the other hand contended that the police had obtained a large number of documents during extensive investigations, and that only some of those documents had been produced.

Bell J held that the magistrate did not err in upholding the summonses. He noted that the right to equality before the law was relevant to the duty of a prosecutor to disclose material documents to the accused in criminal proceedings. The court recognized the principle of equality of arms as emanating from articles 14(1) and (3) of the ICCPR, to which Australia is a party. According to Bell J, the principle is relevant to the issue of disclosure. Recognizing the superior resources of the state, he noted that the principle of equality of arms applies in an adversarial trial. According to him, this gives rise to the issue of disclosure by the prosecution. He concluded that the right to equality before the courts ensures equality of arms, which requires that the same procedural rights be provided to all the parties unless distinctions are based on the law and can be justified on objective and reasonable grounds. While recognizing the principle as an international human rights principle, the court noted the importance of international human rights law, noting Australia's international obligations under the ICCPR. The court noted a close interaction between the principle of equality of arms as recognized in international human rights jurisprudence and a common law duty on the prosecution to disclose, with the former strengthening the latter. The court noted that, without disclosure, there can hardly be equality of arms between the prosecution and the accused.

IMPLICIT COUNTENANCE

Although the principle is relatively unknown in the Botswana legal order, various rights which the principle seeks to foster have long been embraced implicitly by the country's laws. The Constitution and Botswana's Criminal Procedure and Evidence ActFootnote ³¹ consciously ensure that a balance exists and that the accused gets his day in court. The principle receives implicit countenance, in that rights such as the right to cross-examine, the right to testify and the right to comment on the submissions of the state are engraved in section 10 of the Constitution.

There are a few cases in Botswana where the need to address the imbalances between the prosecution and the defence have been mentioned obiter, thus giving implicit countenance to the principle of equality of arms. In Mmopi and Another v The State (Mmopi) the court noted that an unrepresented accused is at a severe disadvantage. As Murray J put it:

The court noted therefore that there exists a duty on the presiding officer to explain the procedure of the court to the accused. The court noted in effect that, where an accused had elected to give evidence in her defence and then upon taking oath states that she has nothing to say, the court has a duty to explain to her that she could use the opportunity to explain her side of the story and also explain to her what the issues were.

In Motshwane and Others v The State (Motshwane), the court, in examining section 10(2)(c) of the Constitution which requires the accused to be given adequate time and facilities to prepare her defence, observed that section 10 generally purports to guarantee “the protection of the fundamental rights and freedoms of an individual facing a criminal charge vis-à-vis the state and its powerful agents such as the police, prosecution etc”.Footnote ³³

The court stated that the section “affords the individual ammunition to challenge any act by the state or its agents that is perceived to offend against the rights of the individual to a fair trial as enshrined under the provision”.Footnote ³⁴ This is a resounding declaration that the purpose of section 10 is to protect the rights of the accused as well as to ensure equality of arms.

Section 3 of the Constitution, which relates to equal protection under the law, is usually applied in relation to substantive rights, more often to discrimination cases.Footnote ³⁵ However, in the civil case of O'Reilly v Gibbons and Another, the court observed that it is an integral requirement of the procedural system that the respondent to a court application be notified. The court remarked:

The principle of equality manifested itself when the court noted that the need for the respondent to file a notice of opposition and answering affidavits is founded on a “principle of fairness and natural justice”.Footnote ³⁷ While the principle is not known in the Botswana legal order, the courts implicitly recognize its application as an instrument for fair trial rights. This is made possible by the structure and content of section 10 of the Constitution. It must be noted however that an express application of the principle and an alignment and appreciation of procedural rights in terms of the principle will do well for the full enjoyment of such rights.

Recent decisions of the courts of Botswana, binding the prosecution to disclose to the accused all information obtained during investigation, enhance equality between the parties.Footnote ³⁸ It must be noted however that these cases, even those that refer to the need for procedural equality, do not expressly incorporate the principle of equality of arms. In support of its ruling for disclosure, the court in Ahmed v Attorney-General (Ahmed)Footnote ³⁹ quoted passages from several foreign cases. Reference to procedural equality was very scant in these quoted passages and the principle was not mentioned. Only one of the passagesFootnote ⁴⁰ incorporated the principle of equality of arms. When the court finally addressed the issue of procedural equality, deriving support from the Namibian case of S v Nasser (Nasser),Footnote ⁴¹ it appeared that the issue of equality merely came into the discussion by chance. The court specifically adopted a passage from this case, where the Namibian court in dealing with the issue of disclosure remarked:

In Ahmed, Collins J noted that: “I respectfully adopt that line of reasoning and its conclusion, viz that the issue at stake is to redress the imbalance in a criminal trial given the advantages which the State enjoys. It is not to balance an accused's right to a fair trial against the interest of the State.”Footnote ⁴³

As can be seen from this passage, the reference to Nasser was made solely in support of the court's rejection of the state's argument that, should the accused have a right of disclosure, the state should have a similar right for the sake of equality. Equality was not the central issue in the court's discussion. Although the court recognized the imbalances in resources between the state and the accused, it appeared merely to have stumbled upon the issue in support of its contention. However, Ahmed remains the closest the courts have come to recognize the principle in criminal proceedings. Except for Motshwane, none of the cases finding in favour of disclosure make reference to procedural equality.

JUSTIFYING THE APPLICATION OF THE PRINCIPLE IN THE BOTSWANA LEGAL ORDER

While noting that the Victoria Charter of Human Rights and Responsibilities Act (the Victoria Charter)Footnote ⁴⁴ did not apply to the action, as the action commenced before the charter entered into force, Bell J in Ragg discussed the right to a fair trial under article 14 of the ICCPR to which section 24Footnote ⁴⁵ of the Victoria Charter is similar. The court stated that the principle of equality of arms emanates from article 14 of the ICCPR, reiterating that the principle is one aspect of the right to a fair trial. While the court also noted the fundamental relationship of article 6 of the European Convention with the principle, it understandably focused its attention on the ICCPR, to which Australia is a party. The court observed that international human rights may be relevant to judicial discretion where the human rights instrument is relevant to the matter in question and where consideration of the instrument is not inconsistent with the relevant legislation or common law. The court noted that an international human right in a convention that has not been incorporated into domestic law can be taken into account in the exercise of a judicial power or discretion to strike out the summonses, if the subject matter of the case comes within its scope. In the court's view, the human rights contained in articles 14(1) and (3) of the ICCPR and the principle of equality of arms were directly relevant to the issue.

States ratify treaties, thereby undertaking to comply with their terms.Footnote ⁴⁶ Article 14 of the ICCPR, to which Botswana is a party and to which section 10 of the Constitution is very similar, and article 6 of the European Convention after which section 10 of the Constitution is modelled, justify judicial embracing of the principle in Botswana. Of course the ICCPR has not been transformed into domestic law and therefore does not have consequential binding effect on the Constitution, rules of procedure or judicial organ of government.Footnote ⁴⁷ In any case, the same procedural norms in the European Convention and ICCPR are also found in section 10 of the Constitution. The transposition of the principle into the Botswana legal order should therefore not be a difficult task.

In Tomasevic v Travaglini, a case involving a court's duty to ensure a fair trial by assisting an unrepresented accused, the Victorian Supreme Court held that international human rights are significant in the exercise of judicial powers and discretions. The court stated:

In taking into account the duty to ensure a fair trial by assisting the accused, the court noted the importance of promoting and respecting the right of equality before the law and access to justice that are contained in the ICCPR.

Botswana inherited the dualist system from her former colonial master, Britain. Therefore, international conventions that are ratified or acceded to by the executive only bind the state on the international plane. They are not applicable in domestic law unless they are translated into law or adopted by domestic legislation. In addition, customary international law enjoys direct application.

International human rights law as a subject is a recent and developing area of the law. It essentially finds substance in conventions, though it may be said that some of the principles of these conventions, such as the prohibition against torture, have crystallized into rules of customary international law. It is axiomatic that the courts are bound by conventions adopted by Parliament and rules of customary international law. Further, there is a presumption that Parliament will not deliberately enact laws in breach of the country's international obligations.Footnote ⁴⁹ Therefore, the courts as a matter of construction will presume that the legislature did not intend to breach the country's international obligations unless this is the clear indication from the statute. The presumption that Parliament will not legislate in contravention of the country's international obligations supports the argument that international conventions to which the country subscribes, and the jurisprudence surrounding them, should validly serve as an aid to the interpretation of local statutes as well as the Constitution.Footnote ⁵⁰ Of course it cannot be said that the precise legal status of conventions forms the basis of statutory or constitutional interpretation, rather it is the philosophy, general purpose and practice behind the conventions that are of significance.Footnote ⁵¹ While formal domestication of conventions is significant, the practical judicial application of the relevant principles ensures their realization.Footnote ⁵² States are bound under the pacta sunt servanda [agreements must be honoured] principle to perform treaty obligations, including ensuring their effects domestically.Footnote ⁵³ However, the ICCPR has not been incorporated into domestic law in Botswana and the question remains as to what should be the courts' approach to those norms of international human rights law that are not binding in the domestic legal order.

Consideration for international conventions might be said to breach the transformation tradition that Botswana has inherited from Britain.Footnote ⁵⁴ However, an interpretation that will enhance or enforce rights provided for in international conventions and especially those to which the country is a party, should always be preferred.Footnote ⁵⁵ In any case, it must be noted that there are instances where the European Convention was invoked as a guide to the interpretation of local law in Britain, even though Britain was not at the time a party to the convention.Footnote ⁵⁶ Indications are that the courts in Botswana have no difficulty in adopting this approach. Indeed, there is statutory support in Botswana for the use of international law as an aid to statutory interpretation. In this regard a court may have regard to a relevant treaty as an aid to the interpretation of any enactment.Footnote ⁵⁷ This approach was supported in Dow in relation to constitutional interpretation when the court declared:

There is an emerging constitutional trend requiring domestic courts to employ international and comparative law.Footnote ⁵⁹ The Angolan,Footnote ⁶⁰ Cape VerdeFootnote ⁶¹ and South AfricanFootnote ⁶² Constitutions provide that constitutional and legal norms related to fundamental rights must be interpreted in the light of international instruments. The Malawian Constitution provides that, when interpreting the constitution, the courts should “where applicable, have regard to current norms of public international law and comparable foreign case law”.Footnote ⁶³ Although “international-law-referral” provisions are absent from the Botswana Constitution, it is significant that the courts have referred to provisions of international conventions that relate to human rights in general, and fair trial rights in particular.Footnote ⁶⁴ Even though references to international law are few and far between, there is clear evidence that human rights conventions are regarded as creating human rights law. Reference is made not only to conventions but also to other instruments such as resolutions and protocols. These norms are regarded as compelling where such conventions have become widely accepted by states even if Botswana is not a party.Footnote ⁶⁵ It seems that there is an underlying realization that international law can be employed as an important benchmark of the domestic human rights regime. International instruments can be a compelling source of human rights law. Indeed, the courts should not hesitate to embrace international conventions to which the country is a party. In Dow Footnote ⁶⁶ the court made extensive reference to the provisions of the African Charter on Human and Peoples' Rights (African Charter) in dealing with issues of equality before the law, equal protection of the law and elimination of discrimination against women. The court also referred to the UN Declaration on the Elimination of Discrimination Against Women. In Bojang Footnote ⁶⁷ reference was made to the UDHR and the African Charter in respect of the presumption of innocence. The court also referred to the ICCPR, European Convention, the African Charter and the American Convention on Human RightsFootnote ⁶⁸ in respect of the right to legal representation. In Attorney-General's Reference: In Re The State v Marapo the court stated that “international human rights norms should receive expression in the constitutional guarantees of this country”.Footnote ⁶⁹

Parties to the ICCPR must, regardless of their legal traditions and domestic law, apply the guarantees of article 14.Footnote ⁷⁰ Clearly, it should not be difficult to apply the principle of equality of arms in the Botswana legal landscape. The basic infrastructure exists. What is lacking is the active development of the jurisprudence accommodating the application of the principle.

It has also been pointed out that, in giving deference to international law, courts might be stifled by the principle of stare decisis [stand by that which has been decided] which applies in domestic law.Footnote ⁷¹ This is because the decisions of the highest courts exert significant leverage on domestic legal frameworks. Domestic courts are bound by decisions of higher domestic courts. Also, in the absence of incorporation, international law usually has an uneasy status in dualist states.Footnote ⁷² However, judges should follow the internationalist approach and be bold to interpret the law in a manner compatible with international trends even when such interpretation is incompatible with domestic trends.Footnote ⁷³ In terms of constitutional interpretation, Botswana can certainly benefit from European jurisprudence since its bill of rights is based on the principles of the European Convention. In this regard, European jurisprudence on article 6 should become relevant in the interpretation and application of the procedural rights provided for in section 10 of the Constitution.

IMPLICATIONS FOR FAIR TRIALS

Judicial recognition of the principle of equality of arms will create new and positive demands on the criminal justice system. In practice, the constitutional guarantees provided by section 10 of the Constitution will receive new impetus. Access to justice and the allocation of resources for the defence of accused persons will receive enhanced vitality, thereby giving meaningful and practical realization to the concept of a fair trial.

Equality of arms creates positive considerations for the right to legal representation. The severe disadvantage suffered by an unrepresented accused was recognized in the case of Mmopi. The court highlighted the attendant inequality suffered by the unrepresented accused and clearly recognized equality as a fundamental requirement for fairness. It is clear, therefore, that the recognition of equality of arms as an underlying guarantee for fair trials will enable the courts to rely on legal representation as a factor in considering the fairness of trials. This should in turn create a demand for the establishment of a comprehensive legal aid system, and the allocation of resources for that purpose.Footnote ⁷⁴

The Courts in Ragg, Motshwane and Ahmed relied on the notion of equality in deciding in favour of docket disclosure. Although docket disclosure obtains in Botswana, its procedural antecedents do not really conform with the notion of equality. In Botswana, the power to investigate crime lies with the state. Suspects do not usually have the resources or the power to investigate crime. Attempts by the accused to interview possible witnesses or obtain relevant documentary or other evidence might well be interpreted as interference with the investigation process. That the state shares its information with the suspect is a significant measure in ensuring equality. However, the fact remains that disclosure is made after the state has collected all its evidence and proffered charges. Therefore, the accused is deprived of accessing the information at the earliest opportunity. Equality of arms demands that suspects are able to access information, so far as possible and without compromising the investigations, as and when it is obtained so that they are able to prepare for their case as the prosecution prepares theirs. This argument should be tenable if the parties are able to rely on equality of arms as an underlying factor for fair trials.

Section 10(2)(e) of the Constitution is an expression of the principle of equality of arms. It provides that the accused be afforded facilities to cross-examine prosecution witnesses and call witnesses of her own on the same conditions as those applying to witnesses called by the prosecution. The realization of the right to call witnesses becomes crucial when the accused is unrepresented, incarcerated and without resources. The accused in such a situation does not have the resources of the state to call and bring witnesses to court. In this regard, the court has a duty to assist the accused to do so if she lacks the resources.Footnote ⁷⁵ However, the procedural provisions relating to the facilitation of the attendance of witnesses are unequal in terms of financial provision. While witnesses for the state are entitled to payment of witness fees as a matter of course,Footnote ⁷⁶ witnesses of the accused are not necessarily entitled to payment of fees unless at the discretion of the presiding officer.Footnote ⁷⁷ This potentially results in a disparity of treatment and certainly flouts the principle of equality of arms as expressed in section 10(2)(e) of the Constitution. Judicial recognition of equality of arms will certainly prevent the application of these procedural provisions to the detriment of the accused.

It is clear that the accused is disadvantaged in the system and that the present application of section 10 of the Constitution is insufficient to put the accused in relative equality with the state in order to ensure fairness in its true and practical sense. Section 10 rights remain in a state of basic application. To some extent, they remain dormant and are not effectively enforced to the benefit of the accused. Fairness can only be attained by maintaining some measure of procedural balance between the prosecution and the accused.