Introduction to law

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
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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
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not hesitated to invalidate legislation that was found to be inconsistent with the

Constitution.

1. 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.

2. 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.

3. 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.

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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).
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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.
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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
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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
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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.
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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.
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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

 CommonLII Databases
o High Court of Botswana
o Appeal Court of Botswana (1881+)
 Botswana Law Reports: 1964 to 1986: 15 Volumes
 Online Botswana Law Reports (for a fee)

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.
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Hierarchy of the courts

Overview

The following is an overview of the history, jurisdiction and characteristics of the levels

of courts in Botswana:

The Court of Appeal

The Court of appeal is the highest court in the country and is the final arbiter of all legal

matters. It is headed by the Judge President.It currently has a total complement of

nine Justices  of Appeal. The Judge President and five citizen justices with the

remainder being visiting justices. Judges of the high court are ex officio members of the

Court of Appeal.

The High Court

The High Court is a superior court of record with unlimited jurisdiction. The Chief justice

is the most senior judge. The Chief Justice is both the administrative and judicial head

of the judiciary. The High Court currently has a complement of twenty seven citizen

judges.

There are currently four locations of the High Court: Lobatse, Francistown, Maun and

the headquarters in Gaborone. The High Court presides over matters beyond

jurisdiction of the lower courts, and appeals emanating from the lower courts.

Industrial Court

The Industrial Court is a Court of Law and Equity, created by section 14 of the Trade

Disputes Act No.6 of 2016. the Court has exclusive judgments in all labour disputes and

ranks equal to the High Court in its status and power. Its judgments are appealable to

the court Appeal.

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The Magistrate Court

The Magistrate court are created by statute with power defined by the Magistrates

Courts Act. They are subordinate to the High Court. Unlike the High Court, Magistrates

Courts are not created by the Constitution. They are therefore controlled and supervised

by the High Court, through reviews and appeals.

The Botswana Magistracy performs a very pivotal role in the judiciary of the nation. The

Magistrates try the bulk of the offences committed and they handle the bulk of common

disputes between ordinary citizens of Botswana.

The following services are available at the Magistrate Courts:

 Family related cases such as paternity and alimony orders.

 Adoption of children.

 Restraining orders in domestic violence cases.

 Civil suits; here individuals sue others for non-payment of debts, breach of contracts,

etc.

 Criminal trials- Magistrates Courts hear the bulk of criminal cases.

Magistrates Courts have gone through a complete transformation, from courts that were

presided over by administration officers to courts wholly staffed by professional

magistrates with legal qualifications. In 1966, there were only two magistrate courts in

the country, one in Lobatse and the other in Francistown. But the growth and

development of Magistrate Courts has been considerable. Today, the courts operate in

25 different centres around the country. These courts handle a large percentage of

litigation in the country. Jurisdiction of the Magistrates court is BWP60,000.00.

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