The decision to charge is one of the most important decisions a prosecutor can make; it does not start and stop at the beginning of case but continues until the conclusion of the matter, right up to appeal. A ‘code for charging’ sets the criteria by which a case may be charged, or not. It forces both the prosecutor and the investigator to address their minds to the ingredients of an offence and apply stringent case analysis. Where it doesn’t exist but where decisions are made by discretion there remains massive ambiguity and inconsistency that in turn undermines public confidence and may help corruption flourish in the context of a prosecution. By including a requirement to give written decisions on a file, transparency, accountability and the ability to quality assure are built in to the benefit of the head of a prosecution agency.
The new Director of Prosecutions for Botswana, Stephen Tiroyakgosi, began his new role by launching the Botswana Code for Charging in August 2017, setting out for the first time an objective criteria for that all important decision. This is a public document that can help the people whom this Office serves better understand how and why decisions are made. This builds on the work commenced by his predecessor, now the new Attorney General for Botswana, Abraham Keetshabe. Supported by Space for Giants and the United Nations Office of Drugs and Crime, the Code will undoubtedly undergo many alterations in the years to come (I think the UK is on its 7th edition of the Code) – but that it has at last been codified is a massive step forward. The next challenge of course is implementation. Kenya did a similar thing in 2012 in revamping its Code but five years on, it has only been piloted in a very limited number of stations. The task ahead is daunting.
The “Points to Prove” guide on wildlife crime that accompanied its launch is really a side-bar to that main event – the ‘hook’ on to which this work could be harnessed. However, both tools aim to provide prosecutors with two things – one, a sword and a shield to scrutiny over any decision they make on a file; second, the points to prove guide is aimed at simply this – reducing the amount of time that prosecutors need to spend on researching a law that is not often used, by guiding investigators quickly and ‘SMART’-ly to the end game – a successful trial, mindful all the while of the limited resources available and that often, they have other cases – people-based cases – that need attention.
Mentoring is key to the successful implementation of these tools. There are high hopes pinned on this new Director and his team and with determination and commitment, they can succeed.