Sources of the Criminal Law of Botswana

I. G. Brewer

doi:10.1017/S0021855300012675

Sources of the Criminal Law of Botswana

Published online by Cambridge University Press: 28 July 2009

I. G. Brewer

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The purpose of this article is to examine the sources of the general criminal law of Botswana.2 Prior to the creation of a Protectorate there existed in the country several indigenous systems of law operative within tribal areas which later collectively became known as the customary law. Included in this customary law was an ill-defined body of criminal law which can be termed the customary criminal law. We are not, however, examining the sources of this customary criminal law but rather of the criminal law which was originally introduced by statute on the establishment of the Protectorate and which was administered in a separate system of courts. Botswana is in an almost unique position in this respect3 because after the formal establishment of the Protectorate it received what may be broadly, but inaccurately, called the Roman-Dutch criminal law. Subsequently this was abolished and in its place a Penal Code was introduced which was based mainly on English law. The customary criminal law will be considered in this article but only in the broad context of its present position in the legal system and the effect of the general criminal law on its application.

Type: Articles
Information: Journal of African Law , Volume 18 , Issue 1 , Spring 1974 , pp. 24 - 36

DOI: https://doi.org/10.1017/S0021855300012675 [Opens in a new window]
Copyright: Copyright © School of Oriental and African Studies 1974

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² The country was originally known as the Bechuanaland Protectorate but on independence the name was changed to Botswana (Botswana Independence Act, 1966, s. 1). The terms “the Bechuanaland Protectorate”, “Protectorate” and “Botswana” are all used in this article.

³ Shared with Ceylon. See The British Commonwealth and the Development of its Laws and Constitution. Vol. 7. The Dominion of Ceylon, by W. I. Jennings and H. W. Tambiah (1952).

⁴ By Proclamation No. 1 of 1885 made on September 30th, 1885. See also Order in Council of January 27th, 1885. In fact this only included territory up as far as latitude 22°. The territory was later extended northwards to form what is now Botswana. For a detailed account of the changes in boundaries see A. Sillery, Founding a Protectorate, pp. 144–152.

⁵ Bechuanaland Protectorate General Administration Order in Council made on May 9th, 1891.

⁶ S. 4, ibid.

^{page 25 note 1} General Law Proclamation No. 2B, s. 2, made on May 29th, 1884.

^{page 25 note 2} Courts Act, cap. 7 (1960 Revised Edition of Laws), s. 37.

^{page 25 note 3} See A. N. Allott, New Essays in African Law, 1970, pp. 59–60; see also Allott, Essays in African Law, 1960, pp. 30–31, and p. 20, n. 1. For a discussion on the interpretation of the phrase “for the time being in force” in the Lesotho reception proclamation see: [1969] J.A.L. pp. 130–131 and [1970] J.A.L. pp. 198–202.

^{page 25 note 4} The preamble to Proclamation 36 of 1909 reads “Whereas doubts have arisen as to the effect of Section nineteen of the High Commissioner’s Proclamation of the 10th day of June, 1891, as in force in the Bechuanaland Protectorate”.

^{page 25 note 5} Proclamation No. 36 of 1909 dated December 22nd, 1909, Cap. 27, in the 1948 Edition of the Laws of Bechuanaland. The Proclamation is not reprinted in the 1959 Edition of the Laws.

^{page 25 note 6} Ibid, s. 2.

^{page 26 note 1} See below, p. 28.

^{page 26 note 2} General Law (Cape Statutes) Revision Proclamation, No. 2 of 1959 (1959 Revised Edition of Laws, cap. 36), s. 3(d).

^{page 26 note 3} See generally E. M. Burchell and P. M. A. Hunt, South African Criminal Law & Procedure (formerly Gardiner and Landsdown), Vol. 1, pp. 20–29. Also Hahlo and Kahn, The South African Legal System and its Background, pp. 575—578, and O. D. Schreiner, English Law and the Rule of Law in South Africa, 1967 Hamlyn Lectures pt. 1.

^{page 26 note 4} June 10th, 1891.

^{page 26 note 5} Author's italics.

^{page 26 note 6} Cap. 27 (1948 Edition), s. 1.

^{page 26 note 7} Author's italics.

^{page 26 note 8} Cap. 27 (1948 Edition), s. 2.

^{page 27 note 1} The whole tenor of the 1959 General Law (Cape Statutes) Revision Proclamation seems to indicate that all pre-1891 Cape statutes were applicable to Botswana. Thus the headnote to the Proclamation reads: “To provide that certain laws of the Colony of the Cape of Good Hope which are in force in the Territory, but are obsolete, or otherwise unnecessary in the circumstances of the Territory, should no longer be in force therein”. The sidenote to s. 2 reads “Application of certain Cape Statutes to the Territory to be discontinued”.

^{page 27 note 2} Cap. 36 (1959 Edition).

^{page 27 note 3} Ibid., s. 2.

^{page 27 note 4} E.g. Lotteries Act No. 9 of 1899 repealed by s. 397 of Penal Code.

^{page 27 note 5} E.g. the Regulation of Railways Act No. 19, 1861, introduced into the Bechuanaland Protectorate by Proclamation No. 25 of 1896.

^{page 27 note 6} E.g. Stock and Produce Theft Repression Consolidation Act, No. 35 of 1893, introduced into the Bechuanaland Protectorate by Proclamation No. 3 of 1912 and repealed by Proclamation No. 27 of 1935.

^{page 27 note 7} Bechuanaland Protectorate General Administration Order in Council.

^{page 27 note 8} E.g. Motor Vehicle and Road Traffic Proclamation, cap. 168, 1959 Edition of the Laws.

^{page 27 note 9} Bechuanaland Protectorate (Constitution) Order in Council S.I. 1960/3.

^{page 27 note 10} Ibid. s. 35; cf., e.g., Penal Code Law No. 2 of 1964.

^{page 28 note 1} On September 30th, 1966, under Botswana Independence Order S.I. 1966 no. 1171.

^{page 28 note 2} S. 88(7) of Botswana Constitution (contained in Schedule 2 to Botswana Independence Order ibid.): cf., e.g., Penal Code (Amendment) Act, No. 53 of 1969.

^{page 28 note 3} Law No. 2 of 1964.

^{page 28 note 4} E.g. Zambia, Malawi, Kenya.

^{page 28 note 5} [See Morris above, pp. 14–16—Eds.]

^{page 28 note 6} See Glanville Williams, The Criminal Law, General Part, (2nd Ed.), pp. 582–585.

^{page 28 note 7} See also R. Y. Hedges, Introduction to Criminal Law of Nigeria, pp. 3–5; J. J. R. Collingwood, Criminal Law of East and Central Africa pp. 6–7. See also: [1963] J.A.L. 5–6.

^{page 28 note 8} General Notice No. 65 of 1964.

^{page 28 note 9} The word “Botswana” was substituted for “the Territory” by Legal Notice No. 84 of 1966, following the attainment of Independence.

^{page 29 note 1} See s. 396 and s. 397 of the Penal Code together with the 2nd and 3rd Schedules.

^{page 29 note 2} Regina v. Xiko and Others, 1964—7 Botswana Law Reports 60.

^{page 29 note 3} The power of a court to punish a person for contempt was also expressly preserved by s. 3(c) of the Penal Code.

^{page 29 note 4} Contained in Schedule 2 to Botswana Independence Order.

^{page 29 note 5} 1964–7 Botswana Law Reports 249.

^{page 29 note 6} Contra s. 300(1) (a) and s. 271 respectively of the Penal Code.

^{page 29 note 7} This section entitles a Subordinate Court, on the application of a party to the proceedings, to refer to the High Court any question relating to the contravention of any of the provisions of ss. 3–16 (inclusive) of the Constitution.

^{page 30 note 1} 1966, cap. 23.

^{page 30 note 2} S.I. 1966 no. 1171.

^{page 30 note 3} At p. 252.

^{page 30 note 4} See Halsbury, ibid., para. 711, p. 476.

^{page 30 note 5} For comment and criticism on this case see the article “Constitutional supremacy & a case from Botswana” by C. M. G. Himsworth, 1971 U.B.L.S. Law Journal pp. 38–42.

^{page 30 note 6} The latest recorded case to reach the High Court was State v. Karabo Dephako, 1971 (unreported), Review Case No. 297/71.

^{page 30 note 7} S. 64, Penal Code.

^{page 31 note 1} The right of appeal to the Privy Council was retained on Independence. S. 108 (1) of the Constitution.

^{page 31 note 2} S. 100 of the Constitution.

^{page 31 note 3} See A.G. of Ontario v. Canada Temperance Federation (1946) 62 T.L.R. 199. See also the pronouncement made by Lord Gardiner on behalf of himself and the Lords of Appeal in Ordinary on July 26th, 1966. For comment on this announcement see 83 S.A.L.J. 503 (1966).

^{page 31 note 4} For the position in the Republic of South Africa see Rohrs v. Newmarch, 1915 A.D. 108; Collett v. Priest, 1931, A.D. 290; Bloemfontein Town Council v. Richter, 1938, A.D. 195; Harris v. Minister of Interior 1952 2 S.A. 428 (A.D.).

^{page 31 note 5} For the position in the Republic of South Africa see Kaplan v. Union Govt. 1924 T.P.D. 532; Ex parte Hansmann, 1938 W.L.D. 89; R. v. Philips Dairy (Pty.) Ltd. 1955 4 S.A. 120 (T). There are two reported cases from Botswana where the High Court refused to follow a previous High Court decision. See Morgan Moathode.v Kgabywana Mekgwe 1968–70 Botswana Law Reports, 52 at p. 53 and State v. Pallis Macheng 1968–70 Botswana Law Reports 189 at p. 197.

^{page 32 note 1} But see p. 31, n. 5 above.

^{page 32 note 2} Published by Butterworth, 1970.

^{page 32 note 3} See Allott, New Essays in African Law, pp. 82–83.

^{page 32 note 4} Fatuma binti Mohammed bin Bakhshuwen v. Mohammed bin Solim Bakhshuwen, [1952] A.C. 1.

^{page 32 note 5} 1964–67 Botswana Law Reports 241.

^{page 32 note 6} 1926–1953 H.C.T.L.R. p. 181.

^{page 32 note 7} R. v. Ncanana 1948 4 S.A.L.R. 399.

^{page 32 note 8} 1964–67 Botswana Law Reports at 246.

^{page 32 note 9} 1968–70 Botswana Law Reports, at 100.

^{page 33 note 1} Ibid., p. 104.

^{page 33 note 2} New Essays in African Law, pp. 92–96.

^{page 33 note 3} See p. 32, n. 9 above.

^{page 33 note 4} The courts were known variously as local, native, African, tribal or customary courts.

^{page 33 note 5} Proclamation No. 75 of 1934 promulgated on January 4th, 1935.

^{page 33 note 6} Proclamation No. 33 of 1943, cap. 5 (1948 Revised Edition of Laws). The Proclamation is not reprinted in the 1959 Edition of the Laws.

^{page 33 note 7} Proclamation No. 19 of 1961.

^{page 33 note 8} The African Courts (Amendment and Supplementary Provisions) Act, 1968. Act No. 57 of 1968 s. 2 (a).

^{page 33 note 9} African Courts Proclamation, 1961 s. 10.

^{page 33 note 10} Ibid. s. 14.

^{page 34 note 1} Ibid. s. 12.

^{page 34 note 2} Ibid. s. 2.

^{page 34 note 3} S. 10 (8) of the Constitution.

^{page 34 note 4} E.g. Kenya, Nigeria, Uganda, Northern Rhodesia (now Zambia), Nyasaland (now Malawi).

^{page 34 note 5} See The Future of Law in Africa; Record of Proceedings of the London Conference, edited by A. N. Allott, 1960, Butterworths.

^{page 34 note 6} Ibid. p. 37.

^{page 34 note 7} See African Conference on Local Courts and Customary Law, Record of the Proceedings of the Conference held in Dar es Salaam, Tanganyika, in 1963.

^{page 34 note 8} Ibid. p. 24.

^{page 34 note 9} See also: Record of the Judicial Advisers’ Conference, 1953 (supplement to Journal of African Administration, Oct. 1953), p. 5.

^{page 35 note 1} Hansard 10 p. 23.

^{page 35 note 2} See p. 33, n. 8 above.

^{page 35 note 3} See p. 33, n. 7 above.

^{page 35 note 4} The African Courts (Amendment and Supplementary Provisions) Act, 1968, s. 3 (b) (1).

^{page 35 note 5} Ibid. s. 9 (c) 3.

^{page 35 note 6} Act No. 6 of 1972.

^{page 35 note 7} Ibid. s. 4.

^{page 35 note 8} The memorandum published with the Bill (see Botswana Government Gazette, December 10th, 1971, Supplement G, p. 299) contained no direct reference to this amendment and it seemed to suggest that it was “minor and designed to remove existing terminological inconsistencies”.

^{page 36 note 1} Although the customary criminal law could be abolished immediately it seems that this is being done gradually over a number of years in order to enable customary court presidents to be trained in the administering of the written general criminal law.

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