Botswana’s Legal System and Legal Research
By Lubabalo Booi
Lubabalo Booi has been a Law Librarian at the University of Cape Town Law Library since 2003. Lubabalo holds a BSocSc (Bachelor of Social Science), and PG (Post Graduate) Diploma in Library Science both from the University of Cape Town. He is currently registered for LLB (Bachelor of Laws) degree with the University of South Africa.
Published October 2006
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Table of Contents
The Republic of Botswana, capital Gaborone, is a landlocked country in Southern Africa, north of South Africa. It is about 585, 730 sq km in size with a population of approximately 1,639,833. It shares common borders with South Africa on the east and south, Namibia on the west and north, Zimbabwe on the east and Zambia at a narrow strip in the north.
The San were the indigenous inhabitants of the area now called Botswana. Today San people make up a small portion of the country’s population. The population of Botswana is mainly indigenous Africans, the majority being Tswana, and speaking Setswana. There are also small minorities of Kalanga, Basarwa, Kgalagadi, and other peoples. Setswana is the national language spoken by 78 per cent but English is the official language spoken by 2.1 per cent of the population.
After the gold discovery in 1867, the Transvaal government sought to annex parts of Bechuanaland despite the fact that Britain forbade annexation. On the other hand the German colonial expansion in South West Africa (now Namibia) forced Britain to revisit her policies. After urging by Khama III, a chief of the Tswana nation for protection, a protectorate was then established.
Botswana, formerly the British Protectorate of Bechuanaland, was declared a British Protectorate in March 1885. From 1885 until independence the history of Botswana was marked by attempts to incorporate it into Southern Rhodesia and later into South Africa. The Act of Union 1908 provided that Bechuanaland, Basutoland and Swaziland should be added to South Africa. Botswana was a name that was adopted upon independence on the 30th September 1966 with Sir Seretse Khama as its first President. Bechuanaland meant the country of Bechuana now written as Batswana (plural) or Tswana (singular). Bechuanaland was divided into southern and northern parts. The southern part formed British Bechuanaland, a colony that was later incorporated into Cape Colony (now Republic of South Africa) in 1895 by Act No. 41 of 1895 of the Cape of Good Hope. That association with Cape Colony lived until it was terminated in 1909. The northern part was the Bechuanaland Protectorate (now Botswana). In 1891 the High Commissioner for South Africa was given right to administer the protectorate. The Protectorate was actually administered from Mafeking (now Mafikeng), the former capital of Botswana, by the Resident Commissioner, who has the functions of the Governor but with less authority. Other High Commission Territories were Basutoland, now Lesotho and Swaziland.
The origins of the law in Botswana can be traced back to the founding of Bechuanaland Protectorate. However it was not until 1891 that a formal administration was established. Order –in- Council dated May 9, 1891 gave the High Commissioner the power to legislate by proclamation (which then were required to be promulgated in the Gazette but this was unnecessary for their validity until 1959) on behalf of Her Majesty in exercise of powers conferred to her under the Foreign Jurisdictions Act of 1890. Therefore, the Order-in-Council of 9 May 1891 granted the High Commissioner the power to administration of justice in the Protectorate .The most important section of this proclamation was section 19 which provided for the application of the Cape Colony laws in Botswana in so far as the circumstances of the country permitted. The High Commissioner saw ambiguity in interpretation of section 19 and as a result in 1909 the High Commissioner issued the General Law Proclamation no 39 of 1909 for the purpose of removing doubts. Section 19 of the General Administration Proclamation 10 June 1891 was replaced by section 2 of the General Law Proclamation no.39 of 1909. Section 2 of the General Law Proclamation 36 of 1909 provided application of both common and statutory law in force at the Cape of Good Hope, on 10 June 1891 and that no Statute of the Cape Colony promulgated after would apply to Bechuanaland unless applied thereto by proclamation.
The common law in force in the Cape of Good Hope (now South Africa) was the Roman-Dutch law as received from Holland and developed by the Colony’s superior courts. Therefore in 1891 the law of the Cape Colony was introduced into the Protectorate of Bechuanaland and applied to Europeans/British subjects only. Roman-Dutch law as influenced by English law, or the Cape colony law as influenced by English law, is the common law of Botswana. This common law is subsisting side by side with the legislation, judicial decisions and customary law (only applied to tribesmen) as a source of law.
In 1920 a Native Advisory Council and European Advisory Council were established with respect to the administration order. The Native Administration Proclamation 74 of 1934 and Native Tribunals Proclamation 75 of 1934 provided for regularization of tribal rule and powers. This was resisted by the chiefs. Consequently, Britain granted self government in 1964. Secondly a 1965 constitution was adopted which led to the first general elections; changing of capital to Gaborone and to independence.
On the 30 September 1966, the Bechuanaland Protectorate became the independent Republic of Botswana with Sir Seretse Khama as its first president. 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. There is no explicit provision making the constitution the supreme law of the land in Botswana. This is assumed. The case of Attorney-General v Dow illustrates the supremacy of the Constitution when the majority of the judges of the Court of Appeal agreed that the provisions of sections 4 and 5 of the Citizenship Act Cap.01.1. were discriminatory and repugnant to section 3 of the Constitution.
The Constitution is strictly followed in application of any law. The courts’ independence is enshrined in the Constitution .The Setswana phrase, "ga re lebe motho, re leba molato" which means that 'the law is applied without taking into account the status of the person being tried' is a guiding principle in application of law.
Prior to the establishment of the Bechuanaland Protectorate there existed a variety of indigenous legal systems living in tribal areas which is now collectively called customary law. The definition of customary law is given under section 2 of the Customary Courts Act, 1969 and section 4 of Common law and Customary Act (Cap. 16:01). The 1891 proclamation instructed the High Commissioner to respect the native laws. Therefore these indigenous peoples’ laws received recognition but did not get to be incorporated into the general law of the country. The 1966 Constitution of Botswana did not change this position and it remains so today.
Roman Dutch law is said to be the common law of Botswana which was inherited from the Cape Colony. The Roman Dutch law origin is found in Roman law as influenced by Dutch customary law. It was introduced to the then-Cape Colony in 1652. Over the years it has been influenced by the English Common law after British colonization of the Colony. The Criminal Law of Botswana is originated from the English and evidence is based on South African Law. In Botswana, it has been developed over years by statutes passed by the Parliament and Judicial decisions.
Legislation refers to laws that emanate from passed parliament or bodies to which parliament has delegated powers to legislate. Laws passed by parliament are called Acts and orders, proclamations, by-laws, regulations or rules refer to those laws passed by a subordinate/subsidiary body/authority. Therefore legislation comprises of statutes and subsidiary legislation. Botswana’s statutes are enacted by the National Assembly as given in terms s86 of the Constitution. Legislation validity depends on compliance with the Constitution. In addition subordinate legislation is subject to the ultra vires doctrine. When a bill passes through the National assembly and assented to by the State President, it becomes the Act of Parliament. It comes into effect when published in the Government Gazette or at a later stage by a notice/proclamation that it will come into effect at a particular date.
Citing a Botswana Statute
The statute are cited as promulgated in the latest consolidation eg . Mental Disorders (Cap. 63:02). When the statute has been passed after the consolidation publication, an ordinary way of citing is used eg Public Service (Amendment) Act 15 of 2005.
· Bechuanaland Protectorate; Orders in Council and proclamations, 30th June 1890-31st December 1929.
· Bechuanaland Protectorate. Proclamations and government notices. 1930-1953.
a) The Laws of Bechuanaland Protectorate in force on 1st January 1959
b) Laws of Botswana revised edition 2002: It 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 alphabetical 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 from 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 with letter B 1967-1969 and by F in 1970-71; Bills were assigned with letter E between 1969 and 1969 and by G 1970-71; and D was assigned to Statutory instruments 1967 -1969 and H between 1970 and 1971.
The doctrine of judicial precedent is also referred to as stare decisis, which is a Latin phrase which means “let the decision stand”. In terms of this principle a lower court is bound by the decision of the higher court. Needless to say, that this doctrine operates effectively upon a rigid hierarchy of courts and regular system of law reporting. The adherence to the precedent helps achieve a regime of stable laws that brings about predictability and ensures that law develops in accordance with community needs.
The colonial government did not attempt to establish a comprehensive courts system until 1938. Judicial functions were discharged by administrative officers. The envisaged court structure was as follows:
Under the High Court Proclamation No.50 of 1938 a High Court of Botswana was established in January 1, 1939 as a Superior Court of Record (until it was replaced by another proclamation named High Court Proclamation No.19 of 1954).This new proclamation did not make any significant changes. This court was granted unlimited jurisdiction in criminal and civil cases respectively. It was primary created for Europeans and a court of appeal and review to all inferior courts. This is expressed by s 2 of the High Court Proclamation. The Chief Justice presides over the High Court and is appointed by the President.
Native Courts Proclamation No.33 of 1943 (which was repealed by African Courts Proclamation No.19 of 1961) provided for the recognition of customary courts with limited jurisdiction in both civil and criminal cases. The 1961 proclamation gave this courts unlimited jurisdiction in civil matters provided parties were Africans. These courts applied native laws and customs on African legal disputes within their areas/districts of jurisdiction. The Customary Court of Appeal is the highest court in terms of customary court hierarchy.
Previously the Judicial Committee of the Privy Council in London was the highest court of appeals. It was until a Bechuanaland Protectorate, Basotoland and Swaziland Proclamation 32 of 1955 that a court of appeal was established for the three High Commission Territories. The Court of Appeal is headed by the President of the Court of Appeal and is also appointed by the President. It is the highest court of appeal. Its decisions are binding on all other courts. It also has no original jurisdiction. The president also elects judges and justices of appeal acting on the advice of the Judicial Service Commission. This Commission is made up of the Chief Justice, chairperson of the Public Service Commission and a third member appointed by them.
Magistrates courts has jurisdiction within their particular districts. They mainly apply common law and may hear some customary law issues.
The current hierarchy of Botswana Courts is as follows:
Botswana does not have a statutory or official basis for law reporting. There are High Commission Territories Law Reports that contains the decisions of the Court of Appeal and High Courts of Basutoland, Bechuanaland and Swaziland from 1926 to 1966. Cited as (1958) H.C.T.L.R. 19 (BP).
Presently the reports are available in Botswana Law Reports covering the period from 1964 to date. It must also be mentioned that there is no rule that a case may only be cited only if reported. Cited as  BLR 1.
South African Constitutional Law Reports published since 1995 has decisions of Botswana.
Botswana Law Reports (1964 -1997; CD ROM: Jutastat Publication)
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 Constitution of Botswana of 1966 provides for parliamentary republican form of government headed by the President. It also provides for the separation of power among the three main organs of government, namely; the legislature, the executive and the judiciary. Botswana is a republic made up of nine districts (Central,Ghanzi, Kgalagadi, Kgatleng, Kweneng, Northeast, Northwest, Southeast and Southern) and five town councils (Francistown, Gaborone, Lobatse, Jwaneng and Selebi-Pikwe).
The legislature is one of the government branches. In Botswana, the National Assembly and the President constitute the legislative branch, which acts in consultation with the House of Chiefs, on tribal matters. Section 57 of the Botswana Constitution provides that there shall be a parliament which shall consists of the National Assembly and the President. The parliament is supreme legislative authority in the Republic. Its fundamental functions are: a) to pass laws regulating the life of the nation and (b) to scrutinize government policy and administration and to monitor government expenditure.
Botswana has a bicameral Parliament that is made up of the National Assembly and the House of Chiefs. The National Assembly is a representative body that consists of elected members (both women and men) through adult suffrage. Section 51 (2) of the Constitution provides that in addition to the President the National Assembly will have 40 elected members directly elected by popular vote and four specially elected members elected by the majority party and the Attorney General. The members of the National Assembly serve five year terms. A general election is held after the Parliament has been dissolved and a new one summoned by the President. A by-election is held upon a vacancy opening as a result of death, disqualification of the member or as a result of circumstances prescribed by the Constitution or any law. The parliament has from time to time amended the constitution to increase this number. The provision on the composition of the National Assembly is not entrenched. It could be amended by a simply majority of members of the National Assembly present and voting.
House of Chiefs (Setswana: Ntlo ya Dikgosi)
The Constitution has provided for the establishment of the House of Chiefs. The composition of this house is governed by s77 of the constitution.It is made up of 15 members with eight members being chiefs from the Botswana's principal tribes (baKgatla, baKwêna, baMalete, bamaNgwato, baNgwaketse, baRôlông, baTawana, and baTlôkwa) and seven elected members that serve five-year terms. Four of the seven members are drawn from sub-chiefs in the districts of North-East, Chobe, Ghanzi, and Kgalagadi. The other three members are elected by the twelve members. To qualify for elected to the house of Chiefs these members must be at least 21 years of age, proficient in the English language. They must not have actively participated in politics in the past five years. Chiefs may not belong to political parties.
The House of Chiefs acts as a purely advisory body upper chamber to the Botswana bicameral parliament. It has no legislative or veto power but has power to summon members of parliament. All bills affecting tribal organization and property, customary law, and the administration of customary courts go through the house before being discussed. This body must also be consulted when reviewing the Constitution.
The national assembly of Botswana is a representative house of the Parliament. Constitutionally, this house is vested with legislative authority. Members of the National Assembly are elected, using the universal suffrage and is made up of both women and men from different segments of the country’s society. Currently the National Assembly consists of 63 members, 57 directly elected members using the simply majority system and serve a five year term. The other four members are co-opted and the last two (President and Attorney General) are ex officio members.
To qualify as the member of this house, you must be a citizen of Botswana, be able to speak and write English and be at least twenty one years. Factors like conviction of serious criminal offence, insanity and insolvency disqualifies a person from being a member.
The executive branch is the most important of the three branches of government tasked with execution or carrying out state functions. Botswana has a multiparty constitutional democratic republic that is guided by the Constitution of the Republic of Botswana, 1966. This branch is headed by the President which is elected by National Assembly for a five year term. The President is both the chief of state and head of government. The President then appoints the Cabinet and the vice president.
Botswana's legal system is based on Roman-Dutch law and customary law. Judicial review is limited to matters of interpretation. The judicial branch consists of the High Court, Court of Appeal and Magistrates' Courts (one in each district)
In practice the Protectorate incorporated SA law with little modification especially after the Union of South Africa. Courts followed the same footsteps as they had to look at the manner in which the legislation applied in South Africa was interpreted and applied. This was evident in the field of criminal procedure as South African textbooks are recognized in Botswana. In the law of persons, delict, property they used the Roman Dutch law principles in force at the Cape at the date of British occupation with little change. The English law principles were applied in the law of contract. This is the position even today with the exception of criminal procedure that has seen a major departure from South African law. In 1964 a criminal code was established by Law No. 2 of 1964 based on English law.
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
Botswana is a signatory to many international treaties.
Nsereko, Daniel David Ntanda, Constitutional law in Botswana, Gaborone : Pula Press, 2002.
Tlou, Thomas, History of Botswana. Gaborone : Macmillan Botswana, 1984.