Botswana

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1. Introduction


1.1 Summary of the context


Botswana is a former British protectorate (previously known as Bechuanaland). It gained independence in 1966 under the name Botswana. Since its independence, the ruling Botswana Democratic Party has won every election and the country has one of the most stable economies in Africa. Botswana is bordered by South Africa, Namibia, Zambia and Zimbabwe and it s home to over 1.5 million people. At 600 370km (231,788 miles) Botswana has a similar size to Madagascar, being slightly smaller than Texas and only slightly larger than France. The currency in Botswana is known as the Pula. Due to the strong economy and political stability, the country has attracted skilled workers and small numbers of refugees from its neighboring countries.

Most of the population enjoys a high standard of living and Botswana has maintained one of the world's highest economic growth rates since 1966. It boasts a GDP (purchasing power parity) per capita of about $18,825 per year as of 2015, which is one of the highest in Africa.[9] Its high Gross National Income (estimated as the fourth-largest in Africa) gives the country the highest Human Development Index of continental Sub-Saharan Africa.[1]

Despite the fact that Botswana has a high HIV/AIDS prevalence rate, the country is also known for having one of the most progressive and comprehensive prevention and management programs for dealing with the diseases.

1.2 Religions, languages and minorities


Although ethnically Tswana people are often said to be a majority, government censuses collect no information on ethnicity. Earlier studies indicated that in some regions, Tswana were a minority, and that all polities were composed of people of heterogeneous origins, including Kalanga, Yei, Mbukushu, Subiya, Herero, Talaote, Tswapong, Kgalagadi, Kaa, Birwa, and varied peoples known as Bushmen (or, in Botswana, Sarwa). There are also resident Europeans and Indians.

English is the official language and Setswana the national language. This means that the language of government and higher education is primarily English, but that Setswana is the dominant language spoken in the country. Ninety percent of the population is said to speak Setswana. The term Setswana refers both to Tswana language, and to Tswana practices/culture. [2]


2. Type of system


2.1 General


The Republic of Botswana is a parliamentary republic. The country has a mixed legal system influenced by Roman-Dutch law, customary and common law.[3] The mixture of Roman-Dutch Law and English Law is basically Botswana's common law system as a whole. This establishes the judicial decisions or court precedents.

The Constitution of the Republic of Botswana came into effect on independence, and provided for a republican form of government with three organs of state namely legislature, the executive and the judiciary.

Customary courts are still integrated in the country’s legal system and have their own hierarchy, the lowest courts being mostly limited to civil matters. The customary courts play an important role in the legal system dealing with approximate 80% of the criminal matters brought before the courts.


2.2 Administration of Justice and court structure


The current hierarchy of Botswana Courts is as follows:

  • Court of Appeal
  • High Court
  • Magistrate Courts
  • Customary Court Commissioner
  • Customary Court of Appeal
  • Customary Courts


Court of Appeal - The highest and final court in the country. The Court is the final forum for all legal matters. There are eight expatriate Judges of the Court of Appeal, drawn from different parts of the Commonwealth.[4]


High Court - A superior court of record with unlimited original jurisdiction to hear and determine any criminal and civil cases under any law. Out of the 16 permanent judges, only one is expatriate.[5]


Magistrate Courts - Magistrates courts are created by statute as subordinate courts. They are subordinate to the High Court. Unlike the High Court, Magistrates Courts are not created by the Constitution. These courts handle the following matters in general: Family related cases such as paternity and maintenance orders; Adoption of children; Restraining orders in domestic violence cases; Civil suits; motions and criminal trials.[6] Where a magistrate's court convicts an accused (who is not less than 17 years of age) and the court is of the opinion that greater punishment should be inflicted for the offense than it has power to inflict, the court may remand the matter to the High Court for sentence.[7]

A welcome function of magistrates courts in Botswana is to try and settle or reconcile pending criminal matters seized by such courts. This function is set out in section 321 (1) of the Criminal Procedure and Evidence Act (CP & E) Cap 08:02 which states:

“In criminal cases a magistrate court may, with the consent of the prosecutor, promote reconciliation, and encourage and facilitate the settlement, in an amicable way, of proceedings for assault or any other offence of a personal or private nature not aggravated in degree, on terms of payment of compensation or other terms approved by such court, and may, thereupon order the proceedings to be stayed”.


Customary Courts – These courts primarily determine matters of a customary nature such as the status of widows, child custody and inheritance and generally reflect the traditions and attitudes of the local community. Matters are usually heard by the local chief or the presiding officer. These courts have have both civil and criminal jurisdiction.

There is also an Industrial Court (for labour law matters) and a Land Tribunal.


3. Legal Aid situation in the country


Before 2011 there was no legal aid in the country to assist defendants.

Following the successful piloting of a legal aid services project in Botswana from September 2011 onwards the Government decided to establish it as a permanent independent public entity. This was followed formally by the Legal Aid Act was brought into operation on 1st January 2015.

Currently Legal Aid Botswana is a corporate body established by and functioning in terms of the Legal Aid Act (No: 18 of 2013).

Legal Aid Botswana provides Legal services including legal advice, legal representation in the Magistrates’ Courts, High Court, Industrial Court, Land Tribunal and the Court Of Appeal.

It also provides public legal education on legal rights and responsibilities and these services are provided by in house attorneys as well as private legal practitioners through Law Society of Botswana.[8]


4. Sources of defendant’s rights


4.1 National Sources


(4.1.1) Constitution of Botswana: The constitution protects a wide range of fundamental rights and freedoms – specifically in subsections 3-19 of Chapter II;

(4.1.2) The Botswana Penal Code (Law no 2 of 1964)

(4.1.3) The Criminal Procedure and Evidence Act (Chapter 9:07)

(4.1.4) The Children’s Act (08 of 2009)

(4.1.5) The Botswana Police Force Act.


4.2 International Sources


The Republic of Botswana is a member of the United Nations and the African Union. It has ratified many UN Human Rights Conventions (compare list on the right) and thus has made binding international commitments to adhere to the standards laid down in these universal human rights documents. Inhabitants of Botswana may also turn to the UN Human Rights Committee through procedure 1503, to the Special Rapporteurs for violations of specific human rights or to ECOSOC for women's rights violations.

Botswana is a member of the African Union and a signatory to the Rome Statute (thus accepting its jurisdiction) and has ratified the following international legal instruments:

  • International Covenant on Civil and Political Rights (ICCPR);
  • The Convention Against Torture (CAT);
  • The Convention on the Rights of the Child (CRC);
  • The Convention on the Elimination of Discrimination Against Women (CEDAW);
  • International Covenant on Economic, Social and Cultural Rights (ICESCR).


5. Pre-trial Procedures


5.1 Police Force


In Botswana, police powers of arrest, search, seizure and detention can only be exercised within the limits of the law. A police officer abusing his power can be subjected to a disciplinary proceeding before a court marshal (disciplinary court).

The government of Botswana has also established the Directorate on Corruption and Economic Crime: An operationally independent department to prevent and investigate corruption and economic crime. There is also an Office of the Ombudsman as a further measure to prevent maladministration in the affairs of government, to investigate any improper conduct by persons performing a public function and, where necessary, recommend a remedial action.


5.2 Searches


A complaint should be made under oath that there are reasonable grounds for search warrants, seizure, and detention of property with offenses and custody of women unlawfully detained for immoral purposes.[9]

It is lawful for any police officer of the rank of Sergeant or above such rank believes there is reasonable grounds that a delay in obtaining a search warrant would defeat the objective of a search, to search without a warrant.[10]


5.3 Arrest


Section 5(2) of the Botswana constitution determines as follows as regards arrested persons and their rights:

“5(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.


5(3) Any person who is arrested or detained—
(a) for the purpose of bringing him before a court in execution of the order of a court; or
(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Botswana, and who is not released, shall be brought as soon as is reasonably practicable before a court; and if any person arrested or detained as mentioned in paragraph (b) of this subsection is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

Every male of Botswana between the ages of 16 and 60 are subject to arrest.[11] It is lawful for any peace officer or private person who by law are authorized to make an arrest to break open doors or windows of the premises for search for the subject. - rovided that such officer or private person had failed to obtain admission after they had demanded to seek admission.[12]

Peace officers and/or private persons so authorized can use force against offenders if they resist arrest. Force should be appropriate to the threat and reasonable in the particular circumstances necessary to apprehend the offender.[13] This is also reiterated in section 17 of the Botswana Penal Code:


“Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.”


There is protection of any individual’s civil rights in respect of a wrongful or malicious arrest.[14] In terms of the Police Force Act as well as the Constitution: Section 5(4) it is stated the following:


“Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person.”


Suspects must be informed of their rights upon arrest, including the right to remain silent, and must be charged before a magistrate within 48 hours.[15]

Any member of the Botswana Police Force or any gaoler may take the finger-prints, palm-prints and foot-prints of any person arrested upon any charge, and any such policeman, gaoler or a medical officer may take or cause to be taken such steps as he may deem necessary in order to ascertain whether the body of any such person, not being a woman, bears any mark, characteristic or distinguishing feature, or shows any condition or appearance.[16]


6. The rights of the accused at all times


6.1 Criminal Law System


(6.1.1) Double Jeopardy/Ne bis in idem

This is regulated by section 19 of the Botswana Penal Code:

“A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.”


(6.1.2) Presumption of Innocence

Any person accused of committing a crime is presumed innocent until proven guilty – this is set out in section 10(2) (a) of the Botswana Constitution.


(6.1.3) Capital Punishment


Section 4(1) of the Botswana Constitution states that “no person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he has been convicted”.

Capital punishment is a legal penalty in Botswana. It is one of a few democracies that continue to enforce it. The death sentence is usually issued upon murder under aggravated circumstances and is carried out by hanging.

Where a woman convicted of an offense punishable with death alleges that she is pregnant, or where the court before which a woman who is so convicted thinks fit to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by the court.[17]

No sentence of death shall be carried into effect except upon the special warrant of the President, to whom a record of all proceedings in the case shall be forwarded as soon as may be after sentence together with a report upon the case from the officer presiding at the trial.[18]


(6.1.4) Nullum crimen poena sine lege

Section 10(4) of the Botswana Constitution enshrines the above criminal law principle: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”


(6.1.5) Autrefois acquit autrefois convict

Section 10(5) of the Botswana Constitution similarly protects this criminal law principle: “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.”


7. Fair trial Rights


The rights pertaining to a fair trial is set out fully in section 10 (Chapter II) of the Botswana Constitution under the heading “Provisions to secure protection of law”:

(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognized by law.


(2) Every person who is charged with a criminal offence:


(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;


(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice;


(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and

(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge, and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.


(3) When a person is tried for any criminal offence, the accused person or any person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.


(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.


(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.


(6) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.



(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.


(8) No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law:
Provided that nothing in this subsection shall prevent a court of record from punishing any person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefor is not so prescribed.


(9) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established or recognized by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.


8. Appeals


The execution of the sentence of a magistrate's court shall not be suspended by reason of any appeal against a conviction, unless the sentence is that the accused be giving corporal punishment, or the court from which the appeal is made orders that the accused be released on bail, or he is sentenced to any punishment other than simple imprisonment.[19]

Where the High Court, at any stage of criminal proceedings, gives or makes any decision, ruling, opinion or statement on, or in relation to, a question of law and the Director of Public Prosecutions has any doubt as to the correctness thereof, he may submit that decision, ruling, opinion or statement to the Court of Appeal and cause the correctness thereof to be argued before the Court of Appeal on behalf of the State in order that the Court of Appeal may determine the correctness thereof for the future guidance of all courts.[20]


9. Sentencing


The manner of dealing with convicted juveniles under the age of 18 of any offense. Instead of imposing any punishment upon him for that offense, should e placed in the custody of any suitable person designated in the order for a specific period.[21]

When a person is sentenced to undergo corporal punishment such sentence shall be carried out privately in a prison.[22] The High Court has the powers to postpone and suspend sentences. The court has discretion on certain offenses to be suspended for a period not exceeding three years.[23]

Confinement of sentences shall take effect from and including the whole day on which it was pronounced, unless the court expressed otherwise.[24] Magistrates courts are not to impose sentences less than four days.[25]


10. Rights in prison


10.1 Conditions of Confinement

Any person in charge of, or any officer, medical officer, nurse, attended, servant or other person employed or performing duties at a place of safe custody who ill-treats or willfully neglects any person confined under the provision is guilty of an offense.[26] Botswana has 22 prisons and two detention centers for immigrants which have poor conditions and overcrowding.[27] Overcrowding, which was worse in men's prisons, constituted a serious health threat due to the high incidence of HIV/AIDS and tuberculosis. Rape of inmates by inmates occurred.

10.2 Medical Care

When a person is confined in a place of safe custody, the person in charge of such place shall transmit in the prescribed form annually reports to the director of Health Services a report o the mental and physical condition of the person confined and report on mental condition.[28]


10.3 Mental health care

There are sections that address the mental health care of a personal diagnosed with a dental disorder pertaining to procedures when the accused does not understand proceedings; Inquiry in absence of accused; Transfers from place of safe custody; Notification of confinement and transfer; Inquiry into continued confinement.[29] Cessation of mental disorders, etc., of criminal lunatic has to have two medical practitioners certify, or the Mental Health Board has certified.[30]


10.4 Women’s rights

It is not lawful to employ any male person in any place of safe custody to exercise the personal custody or restraint of any female person confined, and any person employing a male person contrary to this section is guilty of an offense. This section does not prohibit the employment of male persons on such occasions of urgency, in the option of the person in charge of the place of safe custody, rendering such employment necessary.[31]


References


  1. Gross national income (GNI) – Nations Online Project
  2. http://www.everyculture.com/Bo-Co/Botswana.html
  3. World Factbook (CIA) January 17, 2018, https://www.cia.gov/library/kent-center-occasional-papers
  4. Botswana Administration of Justice, http://www.gov.bw/en/Ministries--Authorities/Ministries/Administration-of-Justice-AOJ/
  5. Botswana Administration of Justice, http://www.gov.bw/en/Ministries--Authorities/Ministries/Administration-of-Justice-AOJ/
  6. Botswana Administration of Justice, http://www.gov.bw/en/Ministries--Authorities/Ministries/Administration-of-Justice-AOJ/
  7. . Section 295, Criminal Procedure and Evidence, Chapter 08:02
  8. http://www.labbw.net/
  9. Sections 51-59, Police Force Act, 1979
  10. Section 52, Police Force Act, 1979
  11. Section 44, Police Force Act, 1979
  12. Section 45, Police Force Act, 1979
  13. Section 47, Police Force Act, 1979
  14. Section 50, Police Force Act, 1979
  15. Section 109, Police Force Act, 1979
  16. Section 337, Criminal Procedure and Evidence, Chapter 08:02
  17. Section 298, Criminal Procedure and Evidence, Chapter 08:02
  18. Section 299, Criminal Procedure and Evidence, Chapter 08:02
  19. Section 322, Criminal Procedure and Evidence, Chapter 08:02
  20. Section 336, Criminal Procedure and Evidence, Chapter 08:02
  21. Section 304, Criminal Procedure and Evidence, Chapter 08:02
  22. Section 307, Criminal Procedure and Evidence, Chapter 08:02
  23. Section 308, Criminal Procedure and Evidence, Chapter 08:02
  24. Section 311, Criminal Procedure and Evidence, Chapter 08:02
  25. Section 313, Criminal Procedure and Evidence, Chapter 08:02
  26. Section 182, Criminal Procedure and Evidence, Chapter 08:02
  27. US State department Report, 2014
  28. Section 169, Criminal Procedure and Evidence, Chapter 08:02
  29. Sections 163-167, Criminal Procedure and Evidence, Chapter 08:02
  30. Section 170, Criminal Procedure and Evidence, Chapter 08:02
  31. Section 174, Criminal Procedure and Evidence, Chapter 08:02