Botswana’s Legal System and Legal Research

By Charles Manga Fombad

Charles Manga Fombad is a Professor of Law and Director of the Institute for International and Comparative Law in Africa, (ICLA), Faculty of Law, University of Pretoria. He holds a Licence en Droit (University of Yaounde), an LL.M. and Ph.D. (University of London), and a Diploma in Conflict Resolution (University of Uppsala). Professor Fombad is a member of the editorial board of several distinguished national and international Journals. He is a member of the Academy of Science of South Africa, an Associate Member of the International Academy of Comparative Law and a Vice President of the International Association of Constitutional Law. He has published more than 90 articles in peer-reviewed journals and more than 50 book chapters and is the author/editor of 15 books and monographs. He is the Series Editor of the Stellenbosch Handbooks in African Constitutional Law published by Oxford University Press. The fifth book in the series, Democracy, Elections, and Constitutionalism in Africa, came out in March 2021. Professor Fombad is also co-editor (with Professor Rainer Grote of the Max Planck Institute) of the introductory reports to African constitutions published as part of OUP’s Constitutions of the Countries of the World Online. His research interests are in comparative African constitutional law, media law, African Union law, and legal history, especially issues of mixed systems and legal harmonization.

Published November/December 2021

(Updated by Charles Manga Fombad in May/June 2011 and in October 2015)

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1. Introduction

Botswana is a landlocked country in Southern Africa and occupies an area of approximately 582,000 square kilometres. It is bordered by Zimbabwe, South Africa, and Namibia, and touches Zambia at the confluence of the Zambezi and Chobe rivers in the extreme north. With a population of 2,201,122 (January 2015), its population density of 3.6 persons per square kilometre is quite low. The growth rate of 1.66 per cent (2015 estimates) has only begun to improve after the high mortality impact of the AIDS pandemic was brought under control.

2. Historical Note

The nomadic Basarwa (also known as the Bushmen) are probably the earliest inhabitants of what is now Botswana. Mainly the Tswana-speaking people later settled upon the area during the 17th and 18th centuries. By the time Europeans began to venture into the region in the early 19th century, Khama III had emerged as the most prominent indigenous leader. It was his appeals to the British for protection from both the Afrikaners in South Africa and the Matabele in the north that led the British to reluctantly establish a protectorate over the territory from 1885. Although a High Commissioner was appointed, his seat was in the Cape Colony. The Bechuanaland Protectorate, as Botswana was then known, was essentially governed from South Africa. Botswana remained a largely neglected territory until it became independent in 1966 under the leadership of President Seretse Khama, the grandson of Khama III.

At independence, Botswana was classified amongst the 25 poorest countries in the world. Since then, however, it has combined dramatic economic growth (due to the discovery of diamonds in 1967) and political stability to become a middle-income country, with an income per head of about $3,250 in 1997. The country’s GDP recorded an average annual growth rate of 10 per cent between 1981 and 1991, which was exceptional even by global standards. With growth rates of 7 per cent and 6.8 per cent in 1996–1997 and 1997–1998 respectively, the country was still able to enjoy economic growth at a time of generalised crisis.

About 79 per cent of the population are Tswana, of Tswana-speaking descent. According to legend, the Tswana are descendants of the sons of Chief Malope who gave their names to the eight main tribes that inhabit the country today, namely: the Bakgatla, the Bakwena, the Bamalete, the Bamangwato, the Batawana, the Bangwaketsi, the Batalokwa, and the Barolong. Most of the rest of the population are Kalanga-speaking in origin, and the remainder are Basarwa and Herero. There is also a substantial non-African population of mainly British, Afrikaners, and Asians. The official language is English, while Setswana, which is widely spoken, has the status of co-official and national language.

Before the British colonizers set foot on Botswana soil, there were already in existence certain traditional norms, values, habits, and other principles associated with the different ethnic groups, which helped to maintain law and order in society. This rudimentary legal system meant that the various groups who occupied the territory had developed a mechanism that ensured order in the social, political, economic, and legal affairs of the community. This form of customary law had been practiced for centuries and because it was not written, its exact content is unknown. What remains of it has been handed down by oral tradition from one generation to another, whilst some of it has been lost or transformed by the rapidly changing social, economic, and political conditions. The enforcement of these customary laws was done by male elders at various levels of authority: family heads ward heads and section heads, all of whom were eventually responsible to the chief. Courts also existed at all these levels and the head of each unit was charged with the responsibility of maintaining law and order in his unit. These heads were also responsible for the allocation of resources such as land and for the settlement of disputes that might arise. Cases that could not be resolved at the lower levels proceeded right up to the chief, who was the final court of appeal. The chief in fact exercised full executive, legislative and judicial powers through the system of delegated authority to the heads of the various units.

The arrival of European traders, missionaries, hunters, and colonists from the 1800s brought external pressure to bear on this traditional society and its legal system. They brought with them a different way of life, values, and beliefs, which were often at variance with tradition, and this has since radically transformed the nature and role of customary laws.

The British formally declared a protectorate over Botswana, then known as Bechuanaland, in 1885, at the invitation of one of the prominent indigenous local chiefs. This was mainly to prevent the Boers from using this territory for the reinforcement of their troops in their war with the British as well as to prevent the Germans from having a “coast to coast” presence in the sub region. Until its independence in 1966, British interest and effective presence in Botswana was fairly minimal. A rudimentary form of governmental administration was established in 1891. Almost as soon as the territory came under British protection, the British passed on its administration into the hands of the government of the Cape of Good Hope, or the Cape Colony, as it was known, then a British colony and today part of South Africa.

The British Order in Council of 9 May 1891, made by the Queen of England in exercise of powers conferred upon her under the Foreign Jurisdiction Act of 1890, gave the High Commissioner appointed to administer Botswana powers to “amongst other things, from time to time by Proclamation provide for the administration of Justice.” The High Commissioner who had his seat at the same place as the government of the Cape Colony in Cape Town, acting under the 1891 Order in Council, published a Proclamation on June 10, 1891, which endowed the territory with a complete system of administration, established courts and provided for the appointment of various officials. The various High Commissioners that were appointed administered the territory from their seat in Cape Town and later Pretoria, and often legislated for the territory simply by extending Proclamations designed for what is now South Africa to Botswana.

However, the most significant provision in the 1891 Proclamation for our purposes here was Section 19, which stated as follows:

“Subject to the foregoing provisions of this Proclamation, all suits, actions, or proceedings, civil or criminal, the law to be administered shall, as nearly as the circumstances of the country will permit, be the same as the law for the time being in force in the Colony of the Cape of Good Hope; Provided that no Act after this date by the Parliament of the Colony of the Cape of Good Hope shall be deemed to apply to the said territory.”

The exact meaning of this provision was not clear, and this reception clause differed significantly from the reception clauses that were used by the British government to introduce English Common Law to most of its other African colonial territories. It was uncertain whether the phrase, “the law for the time being in force” in the Cape Colony sought to import the Cape colonial law of 10 June 1891 or the living system of law as changed from time to time and administered in the Cape Colony. The provision has generally been interpreted to mean that it provided for a timeless reception of Cape Colonial law, that is, the living system of Cape Colonial law as it changed from time to time. Nevertheless, to clear any doubts, a new reception clause was introduced by the General Law Proclamation of 1909, Section 2 of which provided that, “the laws in force in the Colony of the Cape of Good Hope on 10th day of June, 1891 shall mutatis mutandis and so far as not inapplicable be the laws in force and to be observed in the said Protectorate.”

Whilst the 1891 Proclamation is considered to have provided for the timeless reception of Cape Colonial Law, the inclusion of the words “mutatis mutandis,” is taken to refer to both its unwritten and written laws. However, Section 4 of the 1909 Proclamation made it clear that Cape Colonial Law was only to apply in Botswana “so far as not inapplicable,” the effect of which was to provide for the exclusion or modification of the laws that did not fit the circumstances prevailing in the country. As regards the written law that was applicable, the 1891 Proclamation had provided that no statute enacted after 1891 was to apply to Botswana, suggesting that only pre-1891 Cape Statutes were applicable. The position was further clarified in the 1909 Proclamation, which provided that no post-1891 statute was to be deemed applicable unless specifically rendered applicable to the territory by Proclamation. Any possible doubts about this were settled by the promulgation of the General Law (Cape Statutes) Revision Proclamation of 1959, which not only confirmed the applicability of unwritten Cape Colonial Law but also provided that all Cape statutes, except those already applied and a further list of 36 statutes listed in a schedule, should “no longer be in force in the territory.” Although a few Cape Colonial statutes still apply today in Botswana, most of them have now been repealed.

There is no explicit mention of Roman-Dutch Law in the reception clauses of both the 1891 and 1909 Proclamations. Nevertheless, since Roman-Dutch Law was then the Cape Colonial Law, this is what is now generally considered by both jurists and judges to have been received in Botswana. Tebbutt J.A. reaffirmed this position in the Court of Appeal case of Silverstone (Pty) Ltd v Lobatse Clay Works (Pty) Ltd ([1996] BLR 190) thus:

“… it is to be noted that the common law of Botswana is the Roman-Dutch Law. Although this was laid down as long as 1909 (by Proclamation No. 36 of 1909) when Botswana was still the Bechuanaland Protectorate, the Roman-Dutch had continued to this day to be applied and is still so applied in Botswana.” (pp. 194-195)

In spite of this, there are many who consider the term “Roman-Dutch law,” to describe what was actually received, as quite misleading and telling only half the story. This criticism holds true not only in the context of Botswana but also with respect to South Africa itself, through which Botswana actually received this law.

The Roman-Dutch law that was extended to Botswana in the 1891 and 1909 Proclamations was therefore a mix of the original Roman-Dutch law that was brought by the Dutch in 1652, the English law that was progressively introduced by the British from 1806 and the principles developed by the local courts. Because of this civil law (Roman-Dutch law) and common law (English law) mix, it is not surprising that some writers have suggested that it is probably more accurate to refer to what was received as Cape Colonial law or as South African common law. Although calling it Roman-Dutch law may be both inaccurate and possibly perverse, this is a neutral term, which, provided it is properly understood, serves to underline the uniqueness of this law, and opens important vistas for its creative expansion to solve legal problems.

3. Sources of Botswana Law

The sources of Botswana law include the Constitution, customary law, common law, legislation, and judicial precedent. Botswana laws are available online.

3.1. The Constitution

Because the British did not want to spend too much money on the administration of the territory, they used the indigenous system to rule. The main feature of the traditional system of administration that the British retained was the Kgotla, a traditional assembly of the adult members of the community where the chiefs met with their subjects and discussed issues concerning their communities.

As the colonial administration became more influential and started overshadowing the local chiefs and the Kgotla, people started clamoring for a forum of consultation at national level. The administration acceded to these demands by establishing a Native Advisory Council, later renamed the African Advisory Council in 1919. It was merely an advisory body with no effective powers and met once a year in Mafikeng in South Africa. A year later, a European Advisory Body was established to advise the administration of matters affecting the handful of white people living in the protectorate. The two councils operated side by side until 1950 when a Joint Advisory Council made up of eight members of each of the two councils and representatives of the administration was established. It too had only advisory powers, met twice a year, and discussed issues of interest to both races.

Repeated demands in the 1950s by the African Advisory Council for the establishment of elected legislative councils were ignored by the British. The general anti-colonial campaign of the early 1950s gained momentum in 1957 when Ghana became independent. In 1958, the Joint Advisory Council passed a resolution calling for the establishment of a legislative council. A constitutional committee was set up by the Joint Advisory Council with the support of the colonial administration in 1959 and was charged with drafting a constitution. Based on a report presented by this committee in 1960, the African, European, and Joint Advisory councils were replaced with a legislative council headed by the resident commissioner. It was composed of both elected and nominated representatives of the two communities, but the number of whites far outnumbered the blacks. By the time it met in 1961, political parties were being formed to campaign for independence. Among them were the Bechuanaland Democratic Party (BDP) and the Bechuanaland People’s Party (BPP). When Britain realized that independence was inevitable, it announced a timetable for independence. This provided for a period of self-government to train Botswana in government and ended with full independence. During a conference held in Lobatse in 1963 a constitution for a self-governing Botswana was agreed upon. This 1963 constitution actually came into effect on March 3, 1965. The 1965 Constitution was later modified and adopted by the Bechuanaland Independence Conference held in London in February 1966, and when the country became independent it was brought into force as a schedule to the Botswana Independence Order of 1966.

Although the Constitution does not expressly state this, it is clear that the Botswana Constitution is the supreme law of the land. All laws derived their validity from it and will be declared unconstitutional and invalid to the extent to which they are inconsistent with the Constitution. Although section 86 gives Parliament the power to make laws, such laws will only be valid if they are not inconsistent with the Constitution. The courts have not hesitated to invalidate legislation that was found to be inconsistent with the Constitution. Thus, in Petrus & Another v The State, ([1984] 1 BLR 14) the Court of Appeal declared Section 301(3) of the Criminal Procedure and Evidence Act void on the grounds that it infringed Section 7(1) of the Constitution prohibiting torture, inhuman, or degrading punishment. In Attorney-General v Dow, ([1992] BLR 119), The Court of Appeal also declared Section 4(1) of the Citizenship Act void for violating the constitutional prohibition of discrimination in Sections 3 and 15 because it denied citizenship to the offspring of Botswana women married to foreigners but granted citizenship to the offspring of Botswana men married to foreigners. A third example, this time of subsidiary legislation, is the case of Students’ Representative Council of Molepolole College of Education v Attorney-General ([1994] BLR 178) The Court of Appeal held that a college regulation, which required pregnant women to leave college for at least one year, was contrary to Section 15 of the Constitution and therefore void. In fact, Section 105 of the Constitution vests exclusive jurisdiction on the High Court and the Court of Appeal to entertain any matter involving the constitutional interpretation. However, although this gives these courts the power to review all legislation and quash any that infringe any constitutional provisions, it does not give them the power to nullify sections of the Constitution itself.

3.2. Customary Law

Because of its little interest in administering Botswana, it was no surprise that the British after declaring the protectorate over the territory interfered as little as possible with the internal administration of the country. This was also equally consistent with its general colonial policy of “indirect rule” whereby they saw as the best way of administration to officially recognise and use as much as possible the existing indigenous systems of rule and law in place.

As a result of their philosophy of indirect rule, the British decided to make use of the existing traditional dispute settlement agencies that they found in place in Botswana. Unlike in some of the other British colonies, this policy worked quite well in Botswana because the Tswana tribe, who today make up almost 79% of the population, had already developed what was by all standards, a highly sophisticated judicial system. The British were able to incorporate this system into the new court structure that they introduced to deal with disputes involving whites with little difficulty. In fact, under Article 4 of the General Administration Order in Council of 9 May 1891, the High Commissioner, in issuing Proclamations was required to “… respect any native laws or customs by which the civil relations of any native chiefs, tribes or populations under Her Majesty’s protection are now regulated, except so far as the same may be incompatible with the due exercise of Her Majesty’s power and jurisdiction.”

At the beginning of the Protectorate, there was virtually no modification made in the authority and operation of the traditional courts. However, gradually the scope and operation of these courts was progressively limited in a variety of ways. Until 1934, the British had largely left the traditional dispute settlement system in which the chiefs played a prominent part unaltered. Among the Tswana tribes, there were several grades of customary courts, which operated within a hierarchical structure to which cases were tried. An 1891 Proclamation limited their jurisdictions to Africans, although the statutory courts that had been introduced could exceptionally extend their jurisdiction to Africans if this was “necessary in the interests of peace, or for the prevention or punishment of acts of violence to persons or property” (Section 8 Proclamation of 10 June 1891).

Initially, the received laws and the statutory courts that were set up to apply them from the creation of the Protectorate were meant to be applied only to the minority Europeans (including “Europeans” of African descent), whilst customary law was to be applied only to the indigenous population. Customary courts could not even take on cases where one of the witnesses was a non-African. As time went on, as Botswana became more educated and came in direct contact with the received laws in the course of their profession or occupation, some of the indigenous population increasingly came under the jurisdiction of the new courts. Interaction between the indigenous people and the European settlers also made the parallel development of the two legal systems impossible.

The Native Tribunals Proclamation of 1934 formally recognized customary courts and for the first time incorporated them into the court system of the Protectorate. It created two categories of courts, or what was referred to as native tribunals; Senior Native Tribunals, which was made up of the chief’s courts and those of his appointed representative, and Junior Native Tribunals, which was made up mainly of the headman’s courts. Dispute settlement agencies below the level of the headman were not recognized but were allowed to operate informally as arbitration tribunals. In effect, only a very small number of customary courts were recognized and absorbed into the formal court system. The 1934 Proclamation effectively created a dual system of law and courts and in many respects started the process that has steadily seen the shrinking in the power of traditional chiefs and the applicable scope of customary law.

The next significant enactment was the Native Courts Proclamation of 1943, which for the first time contained provisions dealing with the recognition, constitution, powers and jurisdiction of customary courts. Until 1943, trials in customary courts had not been regulated by any statutory enactments and chiefs had carried on administering their Kgotla in more or less the same way they had done before 1891. The new Proclamation further limited the jurisdiction of customary courts in both criminal and civil matters. In fact, the reality today is that the power of traditional authorities has been progressively reduced to the point at which virtually all they officially retain are some of their judicial powers.

Since independence, the dual system of courts that came with the integration of customary courts within the hierarchy of modern courts introduced in 1934 has been retained. Whilst the customary courts retain their jurisdiction over customary law matters and the modern courts apply the common law, the former, as in the colonial days are subordinate to the latter. Although customary courts have their own hierarchy, they all rank as the lowest courts in the general hierarchy of courts and their jurisdiction is almost limited only to certain civil matters. Customary courts play a very important part in the Botswana legal system, and they probably deal with as many as 80% of criminal matters brought before the courts.

3.3. Common Law

The expression “common law” in the context of Botswana has at least three possible meanings. First, in a strictly literal sense, it could be used to refer to the national law applicable to all inhabitants of Botswana, irrespective of their origin or creed. In this very broad sense, it refers to the Botswana legal system as a whole. In a second sense, which the expression is used to refer to those systems of law that are derived from or have been substantially influenced by the English common law such as those in the United States, Canada, Australia, Nigeria, Ghana, Kenya, and Zambia. In a third sense, and for the purposes of this section, the expression is used to refer to that part of Botswana law that is unwritten and has not been enacted by Parliament or any authority to which power has been delegated to make laws, such as local authorities and ministers, but excludes customary law.

The common law of Botswana therefore refers to the Roman-Dutch law. As the historical overview discussed above shows, what Botswana received during the colonial period under the 1891 Proclamation was neither pure Roman-Dutch law nor pure English law but a mixture of both laws as developed further in South African courts. In fact, by the time the Roman-Dutch law that was applied in South Africa was extended to Botswana, it had been deeply penetrated by English law. Therefore, although it is technically correct to say that the common law of Botswana is the Roman-Dutch law, this is only true to the extent that this is understood as being the Roman-Dutch law as influenced by English law and the interpretations of this in South African courts. Whilst it can be said that the substratum of the Botswana legal system is therefore civilian, the radical legal reforms which have taken place since independence that have been influenced or based essentially on English legal principles does strongly suggest that the latter is becoming increasingly predominant.

Besides Roman-Dutch law and English law, the common law of Botswana also includes judicial decisions or judicial precedents and is based on the English law doctrine of stare decisis. Although judicial precedents on account of their unwritten nature are considered as a third form of the common law, it is usually classified as an independent source of law not only because of its importance but also because it is sometimes based on the interpretation of other sources of law, especially statutory law.

3.4. Legislation

Legislation is the formulation of law by the appropriate organ or organs of the state in such a manner that the actual words used are not merely a source of law but are actually part of the law. It is the easiest and most important source of law in modern society because not only through it, new laws can be made and old laws altered or repealed but also because it can affect the existence and content of all the other sources of law. In Botswana, legislation may take one of three main forms viz Acts of Parliament, delegated or subsidiary legislation, and autonomic legislation.

Acts of Parliament or statutes are the principal source of modern legislation in Botswana. Section 49 of the Interpretation Act 1984, defines an “Act” or “Act of Parliament,” to mean “a law enacted by the Parliament of Botswana or any law of an authority formerly exercising the authority to make laws for the territory or any part of the territory comprised in Botswana.” The power to make statutes is conferred on Parliament by section 86 of the Constitution, which states as follows:

“Subject to the provisions of this Constitution, Parliament shall have the power to make laws for the peace, order and good government of Botswana.”

It is clear from the wording of this provision that although the Constitution has given the Botswana Parliament the “power to make laws for the peace, order and good government” of the country, these powers are not unlimited. These powers are “subject to the provisions of the Constitution.” This therefore excludes the application of the British doctrine of legislative supremacy or sovereignty of Parliament. In fact, section 86 in an indirect manner recognizes the supremacy of the Constitution as the fundamental law of the land. As we noted above, any Parliamentary Act, which is inconsistent with the constitution, will be declared null and void by the courts

The laws made by Parliament can be referred to as primary legislation whereas the bulk of modern Botswana legislation consist of delegated or subsidiary legislation, which is the vast body of law created by subordinate bodies under specific powers delegated to them by Parliament. Section 49 of the Interpretation Act 1984 after stating that “subsidiary legislation” has the same meaning as “statutory instrument,” defines a statutory instrument as, “any proclamation, regulation, rule, rule of court, order, bye-law or other instrument made, directly or indirectly, under any enactment and having legislative effect.”

Delegated legislation has become an inevitable feature of modern governments for several reasons. Firstly, because of the complex and protracted nature of the law-making process and the pressure upon parliamentary time, the legislative machinery will break down if Parliament attempted to enact absolutely every piece of legislation by itself. Secondly, legislation on certain complex and technical topics necessitates prior consultations with experts and stakeholders. The giving of some legislative powers to Ministers and certain other bodies facilitates this consultation. Thirdly, in enacting legislation, Parliament cannot foresee every administrative or other difficulty that may arise, nor is it feasible for there to be recourse to Parliament for amending an Act each time adjustments become necessary. For example, Section 11(2) of the Motor Vehicle Accident Fund Act 1998, allows the Minister to adjust the compulsory fuel levy as he sees fit rather than resorting to Parliament for the complicated process of amending the Act to achieve this purpose. Finally, in times of emergency, the government usually needs to take prompt and effective action outside its usual powers without resorting to Parliament.

The third form of legislation, autonomic legislation, is a form of delegated legislation but is different in that an autonomous body is given the power, in most cases, by Parliament, to legislate for its own members and in some cases, for members of the general public. Examples of such autonomous legislative bodies include the University of Botswana and the Law Society, all of whose regulations may affect members of the general public. Under the Legal Practitioners Act, 1996 the Law Society has powers not only to control its own internal structure but it can also legislate for its members and impose disciplinary sanctions for violation of their internal rules or certain standards that adversely affect members of the general public. As in the case of subsidiary legislation, autonomic legislation is confined in its extent by the Act of Parliament under which it has been enacted and is subject to the ultra vires doctrine.

3.5. Judicial Precedent

Judicial precedents refer to the English law doctrine of binding precedent that is usually expressed in the Latinism, stare decisis, which literally translates as, “to stand by decided matters.” The phrase stare decicis is itself an abbreviation of the phrase, stare decisis et non quieta movere, which translates as “stand by decisions and do not disturb settled matters.” Botswana can be considered to have received the doctrine of precedent or stare decisis as part of the general reception of Roman-Dutch and English law via South Africa during the colonial period.

The doctrine of binding precedent is founded on the traditional view of the function of a judge in the English system that he does not make law but merely declares and applies the existing law to the facts of a particular case. However, judges refer to earlier cases not merely as guidance but because they are bound to apply the rule of law contained in them. In the course of doing this, they sometimes widen and extend a rule of law or devise a rule by analogy with existing rules or even create an entirely new principle. In declaring and applying the law in this way, judges thereby develop the law. To this extent, judicial precedents or case law, as they are often referred to, constitute an important source of Botswana law.

3.6. Law Reporting

Print

Law reporting in Botswana started during the colonial days. Botswana cases until 1964 appeared in the High Commission Territory Reports. The present Botswana Law Reports, the only law report in the country, was started informally in 1964 by the Attorney-General’s Chambers. Because of lack of trained personnel to undertake the task on a full-time basis, there was a huge backlog of unreported cases and the law report was always several years behind. In 2003, the Attorney-General established a Law Reporting Reference Group, made up of representatives from the Attorney-General’s chambers itself, the judiciary, the Industrial Court, the Law Department of the University of Botswana and the Law Society. This group was given the mandate to, inter alia, establish a proper basis for the selection of reportable judgments, recommend the judgments for inclusion in the law report, develop guidelines for reporting cases, and recommend the judgments to be reported. As a result of the hard work of this group, now known as the Law Reporting Committee, the law reports are now almost up to date. Since the reforms of the Attorney-General’s Chambers in 2005, a new division has been established which deals with law reporting.

Online

Printed Indexes to Botswana Case Law

  • A cumulative subject index of the Botswana Law Reports 1964-1982: index to decisions of the court of appeal and the High Court of Botswana.
  • An index to selected Botswana criminal cases (1964-2002)

The Southern African Legal Information Institute (SAFLII) now provides the most comprehensive report of decided cases in several Southern African and some Eastern African countries. It reports most of the cases decided by the High Court and Court of Appeal and has the advantage over the Botswana Law Reports that it reports far more cases and reports these cases within weeks after they have been decided.

4. Government

The constitution implicitly recognises the separation of powers by dealing with each of the three organs of government in separate and distinct provisions. The executive is dealt with in Chapter IV, sections 30-56, the legislature in Chapter V, sections 57-94 and the judiciary in chapter VI, sections 95-106.

4.1. Executive

The whole of Chapter IV of the Constitution deals with the executive. Part I deals with the President and Vice President, part II with the Cabinet and part III with the executive functions. In spite of this, section 47 explicitly vests executive functions on the President. The President is not elected directly by universal suffrage but rather indirectly under section 32 after parliamentary elections from the newly elected members of Parliament. He can only hold office for an aggregate period of ten years and if the office falls vacant, the Vice President takes over.

The President appoints the Vice President, and such number of Ministers and Assistant Ministers as are determined by Parliament. They must all be members of Parliament at the time of their appointment. If not, then before the expiration of four months after their appointment they must become members of Parliament or vacate the position. This therefore means that there is no strict separation of powers in Botswana. Executive power vests in the President and section 49 states that the Vice President acts as his “principal assistant” and works under his directions. He is responsible for such business of government (including the administration of any department of government), that the President may assign to him. The usual pattern has been to assign a specific department to the Vice President. On the other hand, cabinet Ministers and Assistant Ministers are responsible for advising the President with respect to policy and such other matters that he may refer to them. Nevertheless, section 50 makes it clear that the cabinet shall be responsible to Parliament for all things done by or under the authority of the President and Vice President in the execution of their duties. This generally means that the cabinet as a whole, including the President are collectively responsible to Parliament. Ministers are also individually responsible to Parliament and the public at large for the running of their ministries.

4.2. Legislature

Parliament, according to section 57, consists of the President and the National Assembly. The latter is composed of the President (as an ex officio member), 57 elected members, and six specially elected members. Although Botswana has earned considerable praise for maintaining a full-fledged liberal multi-party democratic system since independence, one party, the Botswana Democratic Party (BDP) has won all elections since independence and remains a dominant party in a system marked by a weak and fragmented opposition parties.

The Botswana parliament exercises three main functions viz the making of laws, controlling public finance and scrutinizing and controlling Government. Section 86 vests in Parliament the “power to make laws for the peace, order and good government of Botswana.” Legislation only becomes law under section 87 after it has been assented to by the President.

Another important function of Parliament, which is provided for under sections 117 to 124, is to control the use of public finances. As a result of this control, Government must obtain legislative authority before it can engage in certain financial activities such as levying taxes, imposing rates, and charging fees.

The final function of scrutinizing and controlling Government is carried out in at least three different ways. The first of this is through question time, motions and ministerial statements. The Standing Orders of the National Assembly allow any private member of Parliament to address a question to a Minister relating to a public matter for which he is responsible. An alternative to question time is the motion, which enables a member to move a motion on any topic by giving three days’ notice of his intention to do so.

Besides Parliament, there is also the Ntlo ya Dikgosi, which until the constitutional amendments of 2005, was known as the House of Chiefs. According to section 77, it is to be composed of “not less than 33 nor more than 35 members,” some of whom are persons performing the functions of kgosi in certain specified districts, some appointed by the President and others selected under section 78(4)(c). The Ntlo ya Dikgosi although having some role to play in the law-making process is not a second chamber of Parliament in any sense. Its limited role in the law-making process is specified in section 85, which enables it to:

  • consider the copy of any Bill, which may affect the designation, recognition, removal of powers of Dikgosi or Dikgosana; affect the organization, powers or administration of customary laws; affect customary law, or the ascertainment or recording of customary law; or affect the tribal organization or tribal property.
  • be consulted by any Minister on any matter on which he desires to obtain their opinion; or
  • discuss any matter within the executive or legislative authority, which it considers it to be desirable to take cognizance in the interests of the tribes, and tribal organizations it represents and make representations to the President or send messages to Parliament on this.

The Ntlo ya Dikgosi therefore only plays a consultative and advisory role.

4.3. The Judiciary

In Botswana, the constitution in section 127 implicitly distinguishes between superior courts and inferior or subordinate courts. Section 127 of the constitution in defining “subordinate court,” states that this “means any court established for Botswana other than the Court of Appeal, the High Court, a court martial, or the Industrial Court. Generally, the jurisdiction of superior courts is neither limited by the value of the subject matter nor geographically and they tend to deal with the more important and difficult cases. By contrast, the jurisdiction of inferior courts is limited both geographically and according to the value of the subject matter of the dispute. Another distinctive feature of inferior courts is that they are amenable to the supervisory jurisdiction of the High court. The most important inferior courts in Botswana are the Magistrates’ Court and the customary courts.

Another important distinction is that between courts of general, ordinary or normal jurisdiction and courts of special jurisdiction. Courts of general jurisdiction are those, which deal with practically any kind of case, whether civil or criminal, that may be brought before them. On the other hand, courts of special jurisdiction may deal only with stated and limited kinds of issues. The courts of general jurisdiction are organized in a hierarchy and consists of the Court of Appeal, the High Court, the Magistrates’ Courts, and the Customary Courts. This structure reflects the dual system of laws operating in the country in that the first three courts are concerned primarily with administering the common law and statutes enacted by the legislature while the last courts deal essentially with customary law. In the last few years, a number of specialist courts have been created to address a number of particular problems. These specialist courts consist of the Small Claims Courts, Stock Theft Courts, Family Courts, Traffic Courts, Child Maintenance Courts, Gender Based Violence Courts and Special Court for Corruption. There are also plans to set up Commercial Courts and what is referred to as Court Annexed Mediation. On the other hand, the courts of special jurisdiction consist of the land tribunal, the juvenile court, the court martial and the industrial court.

Those who adjudicate upon disputes in the superior courts, consists of the Judge President of the Court of Appeal, the Chief Justice of the High Court and such other judges of the High Court and the Court of Appeal as Parliament may prescribe. Their role in the administration of justice is set out in Part VI of the Constitution. These constitutional provisions and other laws regulate matters such as their appointment and dismissal, their tenure, their status, and their independence from the other two branches of government.

4.4. Judicial Officers

Judicial officers consist of the court officials who are appointed to adjudicate upon disputes, legal practitioners, and auxiliaries of justice. Those who adjudicate upon disputes consist of judges appointed to the superior courts of records, magistrates and persons appointed to the Customary Courts. For the superior court judges, there are two methods of appointment. The first deals with the appointment of the Chief Justice of the High Court and the Judge President of the Court of Appeal. According to the Constitution, both are appointed by the President in his absolute discretion without the participation of any other person or authority. The second method deals with the appointment of the judges of the High Court and the Court of Appeal. They are also appointed by the President but this time acting in accordance with the advice of the Judicial Service Commission. Generally, the criteria for appointment requires that those appointed are qualified to practice as an advocate or attorney for at least ten years, or have taught law for at least ten years in a recognized university or have acted as a Chief Magistrate.

Magistrates on the other hand, are also appointed by the President acting in accordance with the advice of the Judicial Service Commission. There are seven grades of Magistrates and the minimum qualification is a law degree. As regards Customary Courts, there are several categories. For the traditional Customary Courts that have been formally recognized by the government, the members are determined in accordance with the status of the court and the customs of the place where it is located. For the urban Customary Courts which have been created by the government, those who sit in them are appointed by the Minister of Local Government. Until a few years ago, most of the judges that sat in the superior courts in Botswana were foreign expatriates. Today, they have all been replaced by citizens.

Besides judges, there is also the Attorney-General and the Director of Public Prosecutions. The Attorney-General heads an extra-ministerial department and sits in cabinet in an ex officio capacity. He acts as the principal legal officer to the Government. The Director of Public Prosecutions was until a constitutional amendment of 2005, part of the Attorney-General’s Chambers. Nevertheless, he is still subject to the administrative supervision of the Attorney-General. The Director of Public Prosecutions is generally responsible for all prosecutions in the country on behalf of the Government. Both the Attorney-General and the Director of Public Prosecutions are appointed by the President at his sole discretion but must meet the requirements for appointment as judge of the High Court.

The legal practitioners who are qualified to appear before the courts in Botswana consist of attorneys and advocates. Whilst attorneys are general practitioners who provide many services to their clients who do not necessarily involve them in court proceedings, advocates or counsels are specialists in advocacy whose main functions are to conduct cases in court. The qualifications for admission and enrolment to practice are regulated by the Legal Practitioners Act, 1996.

Auxiliaries of justice in Botswana consist of the Registrar and his assistants, Sheriffs, Court Bailiffs, and Messengers. The Registrar and his assistants are appointed in accordance with the Public Services Act on the recommendation of the Judicial Service Commission. Their main function is to plan, manage, and coordinate the successful implementation of the mandate of the Administration of justice in the High Court and Court of Appeal. Court Bailiffs are also officers of the courts who are responsible for actual execution of judgments and court orders. Messengers assist all the court officials in the discharge of their functions.

5. Primary Sources

Print

  • Bechuanaland Protectorate; Orders in Council and proclamations, 30th June 1890-31st December 1929.
  • Bechuanaland Protectorate. Proclamations and government notices. 1930-1953.
  • Bechuanaland Protectorate. High Commissioners Proclamations and Notices. 1954-1958.
  • Bechuanaland Protectorate, Statute Law 1959-1965. This publication has been revised and compiled into two sets:
    • The Laws of Bechuanaland Protectorate in force on 1st January 1959;
    • Laws of Botswana revised edition 2002: This is the compilation of the current laws and statutory instruments in force on the date of the revision. Currently it comes in 16 volumes whereby in each volume statutes are arranged alphabetically and chronologically.

Botswana Government Gazette

Previously this publication was called Bechuanaland Government Gazette between 1963 and 1966. It is published on a weekly basis and said to be an invaluable source of information for the latest legislations and administrative notices. As of 1972 it has consisted of three supplements: A=Acts, B=Bills, and C=Statutory Instruments. Previously this practice was irregular, e.g., Acts were assigned the letter B from 1967-1969 but the letter F in 1970-71; Bills were assigned the letter E from 1967 to 1969 and G from 1970-71; D was assigned to Statutory Instruments from 1967-1969 and H from 1970-1971.

Online Sources

6. Secondary Sources

6.1. Botswana Law Journals

  • University of Botswana, Lesotho and Swaziland Law Journal, 1971-1972
  • Botswana Notes and Records (carries all articles on Botswana, irrespective of subject), 1986-
  • University of Botswana Law Journal 2005-
  • Botswana Notes and Records 1968- (online)
  • Pula: Botswana Journal of Africa Studies 1978- (online)

6.2. Selected Bibliography of Botswana Law Books

General

  • Know your Law Gaborone: Ditshwanelo’s National Paralegal Programme, [1998].
  • Fombad, C.M. The Botswana Legal System. 2nd Durban, LexisNexis Butterworths, 2013.
  • Fombad, C.M. (ed.), Essays on the Law of Botswana. Cape Town, Juta & Co., 2007.
  • Fombad, C.M. and Balule, T.B, Media Law in Botswana, 2nd ed.The Netherlands, Wolters Kluwer Law Internation BV, 2018.
  • Fombad, C.M. and Pfumorodze, J, Botswana Law (Monograph in Blanpain, ed., International Encyclopaedia of Laws–Tort Law), 2nd ed., The Netherlands, Wolters Kluwer Law International, 2019.

Commercial and Company Law

  • Gyanteh, J. A. Botswana company law Gaborone: Training and Research (PTY) LTD, 1997.
  • Kiggundu, J. Botswana company law service, 2nd ed., Lansdowne, [South Africa]: Juta, 2015.
  • Kiggundu, J. Company and partnership law in Botswana.2nd ed., Gaborone: Bay Publisher, 2010.
  • Kiggundu, J. The doctrine of ultra vires in Botswana company law [S.l.: s.n., 1990]
  • Kiggundu, J. Mercantile law in Botswana: cases and materials. Kenwyn: Juta & Co., 1998.
  • Quansah, E. K., Introduction to company law in Botswana. Gaborone: Department of Law, Univ. of Botswana, 1990.

Conflict of Laws

  • Kiggundu, J., Private international law in Botswana: cases and materials Gaborone: Bay Pub., 2006.

Constitutional Law, Administrative Law and Human Rights Law

  • Briscoe, A. Freedom of expression in Botswana. Gaborone: Morula Press, 2002.
  • Dingake, O. Administrative law in Botswana: cases, materials, and commentaries. Maruapula, Gaborone: Mmegi Pub. House, 1996.
  • Dingake, O. An introduction to the constitutional law of Botswana.1st ed. Gaborone: Pula Press, 2000.
  • Dingake, O. HIV/AIDS and the law: a guide to our rights and obligations Gaborone: Printing and Publishing Company Botswana, 1999.
  • Dingake, Oe. Key aspects of the constitutional law of Botswana Gaborone: Printing and Publishing Co., 1999.
  • Fombad, C.M., “The separation of powers and constitutionalism in Africa: The case of Botswana,” 25 Boston College Third World Law Journal, (2005) pp. 301-342.
  • Fombad, C.M., “The constitutional protection against discrimination in Botswana,” 53 International and Comparative Law Quarterly, (2004), pp. 139-170.
  • Fombad, C.M., “The protection of freedom of expression in the public service media in southern Africa: A Botswana perspective,” 65 Modern Law Review, (2002), pp. 649-675.
  • Fombad, C.M., “The enhancement of good governance in Botswana: A critical assessment of the Ombudsman Act,” 27 Journal of Southern African Studies, (2001), pp. 57-77.
  • Neff, Steven Human rights in Botswana, Lesotho, and Swaziland: implications of adherence to international human rights treaties. Roma: Institute of Southern African Studies, National University of Lesotho, 1986.
  • Nsereko, D.D.N., Constitutional law in Botswana, Gaborone: Pula Press, 2002.
  • Tshosa, O. National law and international human rights law: cases of Botswana, Namibia and Zimbabwe Aldershot: Ashgate/Dartmouth, 2001.

Criminal Law, Criminal Procedure and Evidence

  • Frimpong, K. Criminal law of Botswana: cases and materials. 3rd.Gaborone: [K. Frimpong], 2000.
  • Mosise, W.M, A practical approach to criminal law in Botswana: Cases and materials. Cape Town: Juta & Co, 2017.
  • Nsereko D.D. N., Criminal procedure in Botswana: cases and materials. Gaborone, BW: New York University Press, 1993.
  • Nsereko D.D. N. Criminal procedure and evidence in Botswana: cases and materials. Gaborone, BW: University of Botswana, Department of Law, 1989.
  • Quansah, E. K. The Botswana law of evidence Gaberone: Bay Publishing, 2004.
  • Solo, K. The law of evidence in Botswana: cases and materials. Gaborone, BW: University of Botswana, Department of Law, 1999.

Customary Law

  • Molokomme, A. “Customary Law in Botswana: Past, Present and Future?” in Botswana in the 21st Century by Brothers, Hennas and Nteta, Botswana Society, Gaborone 1995.
  • Molokomme, A. Children of the fence: the maintenance of extra-marital children under law and practice in Botswana. Leiden, The Netherlands : African Studies Centre, 1991.
  • Fombad, C.M., “Customary courts and traditional justice in Botswana: Present challenges and future perspectives,” 15 Stellenbosch Law Review, (2004), pp.166-192.
  • Schapera, I. A handbook of Tswana law and custom. Oxford: Oxford University Press, 1955.

Environmental Law

  • Briscoe, A. A guide to the environmental laws of Botswana. Gaborone: Morula Press, 2001.
  • Frimpong, K. Protecting the environment in Botswana Washington, D.C.: World Peace through Law Center, 1985.
  • Tshosa, O., Environmental law: Botswana. The Hague: Kluwer Law International, 2005.

Family Law

  • Quansah, E. K. Introduction to family law in Botswana 3rd ed. Gaborone, Botswana: Pula Press, 2001.
  • Quansah, E. K. Family law in Botswana: Cases, materials and commentary. Durban: LexisNexis Butterworths, 2007
  • Roberts, S. Botswana I: Tswana family law. London: Sweet & Maxwell, 1972.

Intellectual Property

  • Briscoe, A. A guide to intellectual property law in Botswana. Gaborone: Morula Press, 2001.
  • Chennells, R. Indigenous knowledge systems protection of San intellectual property: media and research contracts. Kimberley: Southern African Association of Archaeologists, 2004.

Labour Law

  • Briscoe, A. Labour law 2000. Gaborone: Morula Press 2000.
  • Briscoe, A. Labour Law in Botswana: A handbook of rules and procedures. Gaborone: Friedrich Ebert Foundation, 1995.
  • Dingake, O. Collective Labour Law in Botswana, Gaborone: Bay Publishing, 2008.
  • Dingake, O. Individual Labour Law in Botswana, Gaborone: Bay Publishing, 2008.
  • Nanyenya-Takirambudde, P. and Molokomme, A., The new labour law in Botswana Rondebosch [South Africa]: Labour Law Unit, University of Cape Town, 1994.
  • Suter, A. C. Labor law and practice in Botswana Washington: U.S. Dept. of Labor, Bureau of Labor Statistics 1968.

Taxation

  • Swami, B. N. and Takirambudde, P. N. Income tax law and practice in Botswana Gaborone: University of Botswana, 1985.

Others

  • E. K Quansah; The Botswana Law Of Evidence, 2nd ed , Gaborone: Bay Publishing, 2005
  • G. M Kakuli; Civil Procedure and Practice of the High Court in Botswana 2nd ed., Gaborone: Bay Publishing, 2005.
  • Fombad, C.M., “Botswana and the dynamics of legal modernisation within a dual English Common Law/Roman-Dutch Law legal heritage,”13 African Journal of International and Comparative Law, (2005), pp.7-24.
  • Fombad, C.M., “Botswana,” in Vernon Palmer (ed.), Mixed Jurisdictions Worldwide. The Third Legal Family, 2nd ed., Cambridge, Cambridge University Press, (2012), pp.481-527.

7. International Organization Participation

ACP, AfDB, C, ECA, FAO, G-77, IAEA, IBRD, ICAO, ICCT, ICFTU, ICRM, IDA, IFAD, IFC, IFRCS, ILO, IMF, Interpol, IOC, ISO, ITU, NAM, OAU, OPCW, SACU, SADC, UN, UNCTAD, UNESCO, UNIDO, UPU, WCO, WFTU, WHO, WIPO, WMO, WToO, WtrO.

8. Treaties

Botswana is a signatory to many international treaties. For details, see the UN Treaty Body Database: Ratification Status for Botswana.

9. Selected Useful Websites

10. References

  • Nsereko, D.D.N. Constitutional law in Botswana, Gaborone: Pula Press, 2002.
  • Tlou, T., History of Botswana. Gaborone: Macmillan Botswana, 1984.