Difference between revisions of "Botswana"

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(Created page with "{{Languages|Botswana}} ==1. Introduction== ===1.1 Summary of the context=== Botswana is a former British protectorate (previously known as Bechuanaland). It gained inde...")
 
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{{Languages|Botswana}}
 
{{Languages|Botswana}}
  
  ==1. Introduction==
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==1. Introduction==
  
 
===1.1 Summary of the context===
 
===1.1 Summary of the context===
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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.
 
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.
 +
 +
<br />
 +
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===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
 +
 +
 +
'''<u>Court of Appeal</u>''' - 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.<ref>Botswana Administration of Justice, http://www.gov.bw/en/Ministries--Authorities/Ministries/Administration-of-Justice-AOJ/</ref> 
 +
 +
'''<u>High Court</u>''' - 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.<ref>Botswana Administration of Justice, http://www.gov.bw/en/Ministries--Authorities/Ministries/Administration-of-Justice-AOJ/</ref> 
 +
 +
'''<u>Magistrate Courts<u>''' - 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.<ref>Botswana Administration of Justice, http://www.gov.bw/en/Ministries--Authorities/Ministries/Administration-of-Justice-AOJ/</ref>  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.<ref>. Section 295, Criminal Procedure and Evidence, Chapter 08:02</ref> 
 +
 +
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”.''
 +
 +
'''<u>Customary Courts</u>''' – 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.<ref>http://www.labbw.net/</ref>
 +
 +
 +
 +
==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.<ref>Sections 51-59, Police Force Act, 1979</ref> 
 +
 +
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.<ref>Section 52, Police Force Act, 1979</ref>
 +
 +
 +
===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.<ref>Section 44, Police Force Act, 1979</ref> 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.<ref>Section 45, Police Force Act, 1979</ref>
 +
 +
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.<ref>Section 47, Police Force Act, 1979</ref> 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.<ref>Section 50, Police Force Act, 1979<ref> in terms of the Police Force Act as well as the constitution: Section 5(4) of the constitution states:
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''“Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person.”''
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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.<ref>Section 109, Police Force Act, 1979</ref> 
 +
 +
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.<ref>Section 337, Criminal Procedure and Evidence, Chapter 08:02</ref>

Revision as of 10:23, 15 March 2018

Globe3.png English

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 is home to over 1.5 million people. At 600 370km (231,788 miles) Botswana is a similar size to Madagascar and is just slightly smaller than Texas and only slightly larger than France. The currency in Botswana is known as the Pula. Because of 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 enjoy a high standard of living and Botswana has maintained one of the world's highest economic growth rates since 1966. Botswana 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 (by some estimates the fourth-largest in Africa) gives the country a relatively high standard of living and the highest Human Development Index of continental Sub-Saharan Africa.[1]

Despite a Botswana 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 disease.


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<u> - 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”.

<u>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.Cite error: Closing </ref> missing for <ref> tag

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.[14]
  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 337, Criminal Procedure and Evidence, Chapter 08:02