10/11/2014

CJS 323: Criminal Justice

Practicum
Administration of Justice, Fiat Justitia

Student Name:
Tshephaone Reasentse
Student ID:
201104855
Course Instructor: Mrs. K.T.O. Mashaka
Course Code:
CJS 323
Course Name:
Criminal Justice Practicum
Department:
Sociology
Programme:
BA: Criminal Justice Studies
Attachment Supervisor: H/W. G.G. Makofi
Placement Institution: Village Magistrate Court

TABLE OF CONTENTS
ABSTRACT.................................................................................................................................... 2
INTRODUCTION .......................................................................................................................... 2
GENESIS OF LAW AND ADMINISTRATION OF JUSTICE IN BOTSWANA:
HISTORICAL PERSPECTIVE AND EVOLUTION OF STATE COURTS ............................ 3
WORK PLACEMENT EXPERIENCE................................................................................... 5

1.

1.1.

CRIMINAL REGISTRY.................................................................................................. 5

1.2.

MAGISTRATE CHAMBERS AND COURT ROOMS.................................................. 7

PART I: CRITICAL ANALYSIS OF MAGISTRATE COURTS AND THEIR ROLE IN THE

CRIMINAL JUSTICE SYSTEM OF BOTSWANA...................................................................... 8
I.

STRENGTHS OF MAGISTRATE COURTS IN ADMINISTERING JUSTICE .............. 9

II. WEAKNESSES OF MAGISTRATE COURTS IN ADMINISTERING JUSTICE......... 11

PART II: THE LEGAL DEVELOPMENT OF JUVENILE JUSTICE AND THE HANDLING OF
CASES PERTAINING TO CHILDREN IN CONFLICT WITH THE LAW AND THE AREAS
THAT STILL NEED TO BE ADDRESSED TO SUPPORT THE NEEDS OF YOUTHS ........ 13
CONCLUSION............................................................................................................................. 15
RECOMMENDATION(S) ........................................................................................................... 15
PLAGIARISM DECLARATION................................................................................................. 16
REFERENCES ............................................................................................................................. 17

ABSTRACT
Botswana like most if not all African states has laws that operates side by side with the indigenous
laws thus still reflects the duality of legal systems developed during the colonial era both
customary law existing side by side with general law. In addition, the Botswana's court system is
a three-tier system, consisting of magistrates' courts, the High Court, and the Court of Appeal all
of which play a vital role in administering Justice for all fiat justitia but it should be known that
the courts do not operate in a vacuum thus, they are very much dependent on the other functions
of criminal justice institutions such as the Police, Prisons, Director of Public Prosecutions(DPP)
and Directorate on Corruption and Economic Crime(DCEC) because the function of the criminal
justice system is a chain of process with a domino effect on each of the players within the system
itself. Henceforth what happens at the police affects the Courts and ultimately the Correctional
Institutions. One last dimension of justice is the administration of juvenile justice which is very
much different from the adult system.
Key Words: Magistrate Courts, Common Law and Juvenile System
INTRODUCTION
Every society has norms and laws which all aims at maintain social order. However in most
African states (Botswana included) have plural legal systems legal pluralism which means the
existence of multi-legal systems within one geographic area or a state of affairs in which a category
of social relations is within the fields of two or more bodies of legal norms. However it may be
said that it (deep legal pluralism) exist when a person is subject to more than one body of law thus
the co-existence of state law and customary law (Griffiths, 1986) and this is the current position
of Botswana. Supplementary, this reports will provide an in-depth analysis of State Courts
hereinafter referred to as Magistrate Courts that is; i) the history of common law and state courts,
ii) description of their role from the practical point of view, iii) strengths and weaknesses of
Magistrate Courts, iv) Administration of Juvenile Justice in Botswana, v) conclusion and the
penultimate vi) recommendations.

GENESIS OF LAW AND ADMINISTRATION OF JUSTICE IN BOTSWANA: HISTORICAL

PERSPECTIVE AND EVOLUTION OF STATE COURTS
It is the purpose of this first part of the report to provide a more detailed overview of the Botswana
legal system and administration of justice because the prime mandate of the courts is to administer
law and justice to the society. The duty of a legal historian is to focus attention on how the law has
developed to what it is with a view to a better understanding of the law as at present; and, in its
turn, it is only with a clear understanding of the law as at present that society can be better
organized for now as well as for the future. Generally, law grows with the people it is meant to
serve and should be in a large measure a reflection of their spirit and mores (Agudah, 1973). In
addition, it may be said that Botswana is a special case because it has dual legal system in which
both laws that is customary laws and received or western law operates concurrently all in the name
of justice.
Botswana became a British protectorate in 1891. When it attained independence on September 30th
1966, Botswana adopted a Westminster type of constitution, with a justiciable bill of rights.
Botswana's legal system is based on Roman-Dutch law. By the Queen's order-in-council of May
9th 1891, the British high commissioner in South Africa was vested with "all powers and
jurisdiction which Her Majesty... had or may have.., subject to such instructions as he may from
time to time receive from Her Majesty or through a Secretary of State." (Nsereko, 1991). However,
what is most significant for our purpose here is that the High Commissioner was given power
under the Order to appoint fit persons as in the interest of Her Majesty's service he may think
necessary to be, among others, Judges, Magistrates or other officers, and was empowered to define
from time to time the districts within which such officers should discharge their function (Agudah,
1973). In the exercise of these powers, the high commissioner imported Roman-Dutch law, then
applicable in the Colony of the Cape of Good Hope, to Bechuanaland, as Botswana was then
called (Nsereko, 1991). Those who inherited the state are still dependent upon institutions crafted
and developed by the metropolis, and Botswana is no exception. In Botswana this legacy is perhaps
most prominent in the field of criminal justice, which still reflects the duality of legal systems
developed during the colonial era both customary law existing side by side with general law
(Otlhogile, 1993).

Brief mention should also be made of Botswana's court system. It is a three-tier system, consisting
of magistrates' courts, the High Court, and the Court of Appeal. The magistrates' courts are
presided over by magistrates of varying grades. The higher the grade, the higher the jurisdiction
of that magistrate in both civil and criminal matters. The High Court is the most important court
in the system. It has unlimited original jurisdiction in both civil and criminal matters 1 (Nsereko,
1991). Although, as we have seen above, the High Commissioner had been empowered as far back
as 1891 to appoint High Court Judges, in point of fact a High Court for the country was not
established until January 1st, 1939, although it was not unusual for the High Commissioner to
appoint a Judge ad hoc to sit as a Special Court (Agudah, 1973). The colonial courts were enjoined
to enforce Roman-Dutch law and to respect "native law and custom" subject to what is generally
referred to as the "condition of repugnancy. '' The purpose was to invalidate indigenous laws
deemed violative of some undefined universal minimum standards. But customary law and courts
were not outlawed outright, and indeed in disputes involving indigenous people customary law
would be applied in the customary and the general law courts (Otlhogile, 1993).
Another proclamation which came into effect on the same day, January 1st 1939, as the High Court
Proclamation, is the Subordinate Courts Proclamation. Under that proclamation three grades of
Subordinate Courts were created: (1) courts of a District Officer, to be called Subordinate Courts
of the First Class; (2) courts of an Assistant District Officer, to be called Subordinate Courts of the
Second Class; and (3) courts of a Cadet, to be called Subordinate Courts of the Third Class. It may
be noted that the term 'Subordinate Courts', which was introduced by the proclamation, continued
to be used to describe Magistrates' Courts and courts still presided over by Administrative Officers
from then onwards and even until today (Agudah, 1973).
At independence in 1966, the dual legal system was largely retained, although English common
law formally replaced Roman-Dutch law in criminal matters. In practical terms, the received law
regime, now largely codified, continues to hold sway, most notably in the public law fields of
constitutional, administrative, and criminal law (Otlhogile, 1993). After more than four decades of
independence, Botswana, like other post-colonial transitional societies, is still faced with the
continuing task of reconciling plural legal systems inherited from the former colonial power at
institutional, process and value levels. As was the pattern in the rest of Anglo-phone Africa, at
1

Section 95(1) of the Botswana Constitution also affirms the original Jurisdiction of the High court

independence the country chose to retain the dual legal system. However, in relation to criminal
law, Botswana dispensed with dualism of law while retaining dualism of the courts. She opted for
criminal law anchored on a penal code based on the English common law to be applied by all
courts, and partially standardized criminal procedure rules for customary courts (Malila, 2010).
1. WORK PLACEMENT EXPERIENCE
With my entire placement duration at Village Magistrate Court, I got engaged in so activities
particularly official duties of almost all officers of court from criminal registry to Magistrate Court
Rooms and by officers of court, I refer to; Court Interpreters, Court Reporters, Court Clerk and
Magistrates. Thereafter (figure 1 and 2) is a screen capture of the Court Records Management
System (CRMS) interface requesting log in details, it is necessary to give an account of the whole
system operation since at the time I had access to the database which meant that a lot was done
with the system especially by both the Criminal Registry department and Civil Registry. For the
purpose of criminal justice I had to be placed at the Criminal Registry which I shall discuss later.
1.1.

CRIMINAL REGISTRY

By and large the tasks and mandate which I had to pursue from time to time at the criminal
registry was to familiarize myself the operations of the CRMS such as knowing the command
codes of entering a fresh case into the system, updating the same case on a regular basis and
closing events after the case has been mentioned/tried in court. However this procedure applied
to criminal cases in general and criminal cases at my work station as distinguished from other
stations e.g. Broadhurst, Extension II etc. were coded CMMVL, an acronym for Criminal
Matter for Village followed by digits. Moreover this task although challenging, what is worth
noting is that those with the ACCESS CODE/PASSWORD were the permanent employees
so because of the workload and backlog of cases they had at the time I had to be accorded an
interim password for use.
In addition, I had to learn how a subpoena and charge sheet document is structured and the
contents therein, also filing of criminal cases in a chronological manner, clients would come
(prosecutors, parole officers, police officers and accused persons) to enquire about the time
and the court that will conduct their case because there are four Courts in every station all
labelled, Court 1: Grade III, Court 2: Senior Magistrate, Court 3: Chief Magistrate and Court

4: Principal Magistrate. The other role I played was the issuance of court case rolls generated
by the system before every Court session.
Figure 1: CRMS Log in

Figure 2: CRMS Access

1.2.

MAGISTRATE CHAMBERS AND COURT ROOMS

Since my supervisor at the time was and is still a Principal Magistrate (Mr. G.G. Makofi) he
had to assign me some roles to play away from the criminal registry such as observing court
procedures and he kept on insisting that I peruse through the 2011 Rules of Magistrate Courts 2.
My attention was drawn to Part 2 of the Act which was about criminal procedure rules order
48 to 59. It is was an odyssey for having to witness how magistrate courts conduct criminal
cases because the rules are strict in and of themselves. As a matter of procedure the arraignment
of the accused shall constitute the initial case management conference and shall be conducted
in open court, unless the magistrate directs otherwise3. At this stage, constitutional matters
arises4 and I was directed to strictly observe them, in an interview with His Worship Makofi
before every Court seating, he would explain the significance of the arraignment stage because
he was of the view that in the event where a Magistrate fails to read and explain the charges
which shall, if necessary, be interpreted to the accused in the language which he understands 5
then the whole proceedings are null and void no matter the conviction and sentencing, the
accuseds plea to the charge shall be taken and entered on the record of proceedings 6 or on
good cause shown by the prosecutor, reserve the accuseds plea 7. Moreover the Magistrate
shall enquire as to whether or not the accused will engage legal representation and also be
granted time to search for one8.
There is also another constitutional provision in which courts including the magistrate courts
are bound to follow and perusing section 10(1) painstakingly reads thus; If any person is
charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded
a fair hearing within a reasonable time by independent and impartial court established or
recognized by law. It is imperative to allude to fact the courts observe the principles of natural
justice and according to (Dingake O., 2008) contended that it would be unfair and it would be

CAP. 04:04
Ibid, Order 51(1) Arraignment Procedure
4
Section 2 of the Constitution of Botswana states that; Any person who is arrested or detained shall be informed as
soon as reasonably practicable, in a language that he or she understands, of the reasons for his/her arrest or
detention.
5
CAP. 04:04 Ibid, order 51[2, 1]
6
Ibid, order 51[2, 2]
7
order 51[3]
8
order 51[1(a)]
2
3

unwise to attempt a definition of natural justice save to say that at the core of the concept is
the duty to act fairly. There are two principle underpinning the concept of natural justice. These
are: (i) the principle that the party or parties involved in a dispute or matter must be afforded
an opportunity to present their case (audi alteram partem, hear the other side) and (ii) the
principle that administrative bodies and functionaries must be unbiased when taking decisions
that may affect the rights or interests of other persons (nemo judex in sua causa). Botswana as
a proponent and advocate for the rule of law, the constitution grants every citizen protection of
law and as a current practice from time immemorial in the due process, the law assumes that
every person who is charged with a criminal offence shall be presumed to be innocent until he
or she is proved or has pleaded guilty9. The aforementioned activities and principles are
enforced by courts and on a day to day basis, on average the Chief and Principal Courts usually
commence at 0900Hrs and ends at latest 1200Hrs, however there may be recesses in between
when parties are not yet ready or present when their cases are called. Lastly I got engaged in
writing corams and instructed to see how rulings and judgments are drafted 10.
PART I: CRITICAL ANALYSIS OF MAGISTRATE COURTS AND THEIR ROLE IN THE
CRIMINAL JUSTICE SYSTEM OF BOTSWANA

Figure 3: Magistrate Court Room

Section 10(2a) of the Constitution and the entire section 10 provides provisions to secure protection of law.
Rulings are those court orders at the end of cases which mentioned and Judgments are final verdicts.

10

I.

STRENGTHS OF MAGISTRATE COURTS IN ADMINISTERING JUSTICE

The Botswana Magistracy performs a very pivotal role in the Judiciary of this country. The
Magistrates try the bulk of the offences committed in this country and they handle the bulk of
common disputes between ordinary citizens of Botswana. 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 phenomenal. Today, the courts operate in 19 different centres
around the country. These courts handle a large percentage of litigation in the country. Currently,
there are 50 magistrates in the country, 17 of whom are expatriate (A. Administration of Justice
Website, 2014).
In matters of the administration of justice, many of the issues that fall to be resolved by the courts
cannot be so resolved by hard and fast rules. They are normally left to the discretion of the court.
These matters usually include: release on bail, conditions for release on bail, adjournment of cases,
excluding members of the public from the courtroom, allowing children to testify or to testify on
oath, award of costs and compensation, admitting evidence or certain questions, treating certain
witnesses as hostile witnesses, granting leave to appeal, condoning late appeal, and, most
importantly, sentencing. In deciding matters within their discretion courts do not act arbitrarily.
They act or are supposed to act judicially. This means that they must act reasonably. They must
weigh all the pros and cons of the proposed decision. Vesting discretionary powers in the courts
helps in individualizing the application of the law and making its application flexible and adaptable
to the circumstances of each given case (Nsereko, 1999).
It should be noted that the sole purpose of the Magistrate Court and to determine the guilt of the
accused person that is whether the prosecution has proved its case beyond a reasonable doubt 11.
Lord Dennin in Miller V Minister of Pensions12 asserted that there is a compelling presumption
in the man's favour which must prevail unless the evidence proves beyond reasonable doubtand
for that purpose the evidence must reach the same degree of cogency as is required in a criminal
case before an accused person is found guilty. That degree is well settled. It need not reach
certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not
11
12

This principle is well laid in Woolmingtonv V DPP[1935] AC 462

[ 1947] 2 All ER 372

mean proof beyond the shadow of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a
man as to leave only a remote possibility in his favour which can be dismissed with the sentence
'of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt,
but nothing short of that will suffice.
The Judiciary in line with its mandate and vision of justice for all by 2016 has introduced reforms
aimed at promoting delivery of justice in the country. Amongst others is the Judicial Case
Management System (JCM) which was introduced in High Court on the 19th May 2008 and in the
Magistrates Courts on the 4th March 2011. The introduction of Judicial Case Management System
has been hailed by the courts as success both in reducing significantly the backlog of civil and
criminal cases and in speeding up the progress through the courts of current cases. This is a system
used by courts to manage the progress of cases from the time they are registered until they are
disposed of by the court, thus removing the supervision of the progress of the cases from the hands
of the partys lawyers, and places it in the hands of the judge allocated the case. Unlike the old
system where parties of attorneys were in control of the cases and therefore determined the pace
of the case and also were a lot of cases which lay dormant either because the parties had settled
out of court but never bothered to advice the court, such cases remained recorded as pending before
the court, cases are now judge driven instead of attorney or litigant driven thus the time limits of
cases are now strictly controlled and complied with (Administration of Justice Pamphlet, 2014).
The other strength that Magistrate Courts have is the discretion to strike or rescind the civil case
off the roll in the event that parties failed to avail themselves when their cases are mentioned
because the idea is to prevent the backlog of cases. These courts are Courts of record and in every
proceeding, whatsoever that transpires in the proceedings is recorded, also to say that the courts
not only do they administer justice but also attempt to protect the rights of the accused persons. In
admitting confession statements the courts has to be satisfied that i) the confession must have been
freely and voluntarily made, ii) the person making it must have been in his sound and sober senses
and iii) the confession must not have been unduly influence (Quansah E. K., 2008) and if such a
confession is shown to have been made to a policeman, it shall not be admissible in evidence under
this section unless it was confirmed and reduced to writing in the presence of a magistrate or any

10

justice who is not a member of the Botswana Police13.The courts also adjudicate as Childrens
Courts and there shall be attached, to every childrens court, a clerk of the court who shall perform
the same functions as those of the clerk of a magistrates court, a presiding Magistrate, Childrens
court assistant and probation officer14. Lastly courts can impose punishment be it custodial or noncustodial sentences.
II.

WEAKNESSES OF MAGISTRATE COURTS IN ADMINISTERING JUSTICE

The issues that has been constantly been raised by the Magistrates at Village particularly the Chief
Magistrate Mrs. Mokibe and The Principal Magistrate Mr. G.G. Makofi was that, the entire
Criminal Justice System is not synchronized because in practice the criminal justice institutions
appears to be independent on their own, there is no unity, Police Prosecutors would bring accused
persons to courts for arraignment and thereafter would let grass grow round on their feet without
follow up on the case hence creating backlog of cases in courts. In addition much of the courts
time is wasted by the same Police Prosecutors who are mostly sent back to correct their charge
sheets to include what is required in terms of the law which in most of the cases prejudice the
accused persons. There is also the issue of prosecution witnesses especially the Investigation
Officers testifying and tendering hearsay evidence which in and of itself inadmissible so the
magistrates have to educate or filter much of their testimonies. Still on the Police Prosecutors, in
most cases, they bring juveniles to be tried in open courts and the Magistrate has to caution and
educate them on how juvenile cases are conducted in terms of procedure.
There is also an issue of Interpretation in courts generally, by and large interpretation in court from
Setswana to English is poor but sometimes there can be no translation at all because of the
assumption that the accused or the witnesses knows both English and Setswana. However, the
language to be employed in a court shall be English and the evidence and all records of proceedings
in the court shall be in that language, If any of the parties or witnesses in a proceeding before a
court does not understand the English language, then the proceedings shall be interpreted from
English into the language understood by the parties or the witnesses concerned, as the case may
be, and vice versa15. Notwithstanding this provision there appears to be discrepancies in the sense
that some Magistrates if not all can speak in vernacular and conduct the proceedings in an informal
Criminal Procedure and Evidence section 228[1(ii)]
Children s Act of 2009 section 37
15
Magistrate Court Act section5(1 & 2)
13
14

11

manner despite the presence of foreign accused person at the dock. Currently there are few Ndebele
and Shona interpreters but as for Afrikaans and Arabic interpreters there is none at Village
Magistrate Court.
Late coming is a norm and practice on part of Parole Officers bringing Prisoners to court, Public
and Police Prosecutors as part of the inclusion, so this delays and frustrates the magistrates
themselves since they have to wait for prisoners to come to court. Also at Village Magistrate
station, generally there is poor filing of documents (dockets) so before courts commences with
their proceedings, court interpreters have to search for files that are due and some dockets can be
found in old archives amongst the very old sentenced cases.
In relation to sentencing and discretion, the case of Baeta Ngwenya v. State gives an example of a
sentence that did not fit the offence in question. It was overly disproportionate to the offence. The
applicant was charged with robbing another woman of P50.00 (about U.S. $10) and in the process
using violence against her. The violence was no more than a slap on the cheek inflicted in the
course of a fracas. She pleaded guilty and was sentenced to the minimum sentence of 10 years
imprisonment as prescribed under the Penal Code (Amendment) Act. This clearly showed that
some magistrates abuse their sentencing powers.
Moreover the other issue that is of concern it that of rape victims. It is true that rape is a heinous
crime. It is an inhuman and degrading treatment of the victim. It robs her of her chastity, where
she was still chaste. It attacks her right to privacy. It violates her liberty and integrity (Nsereko,
1999). Thus the general constitutional rule that an accused is to be presumed innocent until proven
guilty seems to have been translated, as far as the complainant in a sexual case is concerned, into
one of being a liar until proven credible. The rule which started as a rule of judicial practice has
now metamorphosed into a rule of law. Failure to administer the warning will lead an appellate
court to quash a conviction even though there may exist adequate corroborative evidence. This has
led to a rigid application of the rule with hardly any conviction on the uncorroborated evidence of
the complainant (Quansah E. K., 2009). In my view the adversarial system to some extent does
not Favour rape victims because of re-stigmatization by allowing the alleged rapists to crossexamine their victims. This on its own despite traumatizes rape victims even more instead of
assuring protection by law.

12

The CRMS usage rankings of Village Magistrate Court is at 55.40%: Village has dropped a few
places down from the previous 58.2%.What contributes to this mark is just three areas; open
events, criminal cases, and scanning. Its scanning backlog is the highest at 80%, there were 421
open events amongst the four magistrates that sit in Village. The main problem also is the fact that
some of these open events have been open since 2010.In criminal cases, 11 charges, 47 pleas and
3 sentences were missing. The data entry standards of Village are quite impressive and the clerks
of courts are commended for that but this is worrisome (Administration of Justice, 2013).
As for Interns and future Interns the challenge that is at present is that for your three months period
at the Magistrate Courts, there are extremely high chances of you leaving the place without having
to witness a fresh case commencing and ending on a reasonable time thus cases will come in bits
and pieces e.g. arraignment, mentions which comes normally after 3 months intervals prior to trial
dates (JCM), rulings, default judgments.
PART II: THE LEGAL DEVELOPMENT OF JUVENILE JUSTICE AND THE HANDLING OF
CASES PERTAINING TO CHILDREN IN CONFLICT WITH THE LAW AND THE AREAS
THAT STILL NEED TO BE ADDRESSED TO SUPPORT THE NEEDS OF YOUTHS
Concern has been expressed in Botswana about the increasing numbers of adult offenders sent to
prison. Yet few alternatives to custody exist. Juveniles in Botswana can be made subject to
probation orders, which enable them to retain their liberty and reside at home, but require them to
report to social workers on a regular basis. There is no equivalent for adults, but adult probation
does exist in other countries and is a means whereby adult offenders can be supervised in the
community and offered various types of assistance, including counselling and practical help.
(Love, 1992). In the case of The State V Mehluli Ndlovu16 the accused who was alleged to be 17
years of age was brought to be arraigned in an open court and Makofi who was the presiding officer
expressed his concerns about the practice of Police Prosecutors to bring young offenders to open
courts for trial instead of making an application for separation of trial. Moreover imprisonment of
young offenders is in my view a concern hence in the case of State V. Jane Moseki17 The Accused,
a youth of 17, was sentenced to 12 months, imprisonment to be served in the "youth wing at
Gaborone Jail". It appeared that there was no such wing and the court held that The Courts have
16
17

CMMVL-000132-14
1968-1970 BLR 406 (HC)

13

no adequate machinery with which to cope with the problem of juvenile offenders and this situation
must be regarded as a painful flaw in Botswana justice.
All sentencers and attorneys considered that a Social Enquiry Report, prepared by a trained social
worker, could help them to understand a defendant's motivation for committing an offence. Most
felt that these reports would be particularly useful in the case of first offenders and young people
(although the definition of young people varied from 18 - 22 to 18 - 30), or where offences arose
from domestic disputes. Some felt that reports would be less useful when defendants had extensive
criminal records since they would inevitably go to prison, but it was conceded that the length of
sentence might be influenced by the contents of a report (Love, 1992). But in the case of Outlwile
and Another V. The State18 the two juvenile applicants and three adult co-accused were
charged with murder. The applicants were charged and arraigned separately from their adult coaccused but the matter did not proceed to trial in the juvenile court. Rather, two years after
commission of the offence, the applicants were committed to the High Court for trial, together
with their adult co-accused. At the commencement of the trial, the applicants sought a stay of their
prosecution on the grounds that, in terms of s 22(3) of the Children's Act (Cap 28:04), it was
obligatory that they be tried separately from their adult co-accused and that the state had delayed
unduly in bringing them to trial and the court held that the discontinuance of the process
commenced in the juvenile court was in violation of s 22(3) of the Childrens Act (Cap 28:04)
and was unlawful. The committal of the applicants for trial in the High Court was a nullity and the
trial in the High Court could not continue.
As regards sentencing practice, it would appear that for many offences, imprisonment is
immediately considered and a decision is made as to whether a sentence can be either fully or
partially suspended, based on factors like those outlined (Love, 1992). In the Beijing Rules Article
17.1(c-d) states that deprivation of personal liberty of the juvenile shall not be imposed unless the
juvenile is adjudicated of a serious act involving violence against another person or of persistence
in committing other serious offences and unless there is no other appropriate response and the
well-being of the juvenile shall be the guiding factor in the consideration of her or his case (Hirsch,
Ashworth, & Roberts, 2009). There would seem to be some justification for the introduction of
probation orders in Botswana although its implementation would have to take account of the
18

2010 2 BLR 389 HC

14

particular needs and problems of the country and its culture. One such problem, noted by almost
all respondents in (Love, 1992) study, was the human resources implications. In a nation where
there are relatively few social workers, and the vast majority of those are untrained and
inadequately equipped, it would be impossible for a professional service of this nature to be
introduced in the short term. As discussed earlier and although there is legislation in place, much
needs to be done because measures contained in the 2009 Childrens Act cannot be fully
accomplished because of lack of necessary infrastructure (Lucas, 2010).
CONCLUSION
It is on this basis to allude to the fact that the Magistrate Courts of Botswana play a very vital role
in the both the Criminal Justice System and administration of justice in Botswana, however
notwithstanding that fact, the courts do not operate in vacuum that is to say their efficacy is
dependent upon other criminal justice institutions such as the Police, Prisons, Director of Public
Prosecutions (DPP) and Officers from Directorate on Corruption and Economic Crime (DCEC).
Supplementary, in relation to Juvenile justice concern has been expressed in Botswana about the
increasing numbers of adult offenders sent to prison despite the Beijing Rules which Botswana
ratified, Article 17.1(c-d) which states that deprivation of personal liberty of the juvenile shall not
be imposed and although there is legislation in place, much needs to be done because measures
contained in the 2009 Childrens Act cannot be fully accomplished because of lack of necessary
infrastructure.
RECOMMENDATION(S)
As highlighted above from the challenges faced by both the Magistrate Courts and Interns attached
at such institutions it is my submissions that such problems may be rectified by the following
propositions provided they are adhered to since we know that necessity is the mother of invention:
(i)

There is the need for proper training and curriculum reform of modules taught at the
Botswana Police College to incorporate not only criminal law and penal code as it is
the case but also to further train officers on criminal and court procedures so that they
(police prosecutors) wont have to be sent back time and again to provide the required
documents.

(ii)

The Police Prosecutors should be trained on how to handle juvenile cases and acquaint
themselves with the provisions of the 2009 Childrens Act.
15

(iii)

There is a need for a conference meeting in which all Criminal Justice stakeholders
come together and address issues of mutual concern for Criminal Justice System to be
synchronized, effective and efficient in administering justice for all. The idea is that
each players role in the system be complemented.

(iv)

The issue of time should be observed (punctuality) because it appeared that Parole
Officers, Police Prosecutors and Public Prosecutors in most of the cases appears in
court late after their cases have been called out. Strict rules and penalties should be
applied so that prison officials avails prisoners at courts in time.

(v)

Court interpreters together with the Magistrates should enforce the provisions of
Magistrate Courts Act that the proceedings be conducted in proper English and
translated to a language that the accused understand irrespective of whether or not the
accused knows both Setswana and English. The criteria for endorsing and appointment
of court interpreters should be reviewed and there is need for periodical assessment of
such interpreters by an independent overseer.

_____________, the author of this paper do hereby acknowledge that the

Tshephaone Reasentse

PLAGIARISM DECLARATION
I

contents and information contained therein were compiled and analysed by me thus any other
information forming part of this report are/were cited where necessary to acknowledge other
authors from whom I referred to. Any deceiving information or content provided thereof despite
this declaration shall be subjected to the provisions provided therein the University of Botswana
Academic Policies and upon perusal whether in full or partial, plagiarized content of this paper
shall result to a failing grade by the instructor.

10th

November

2014

Submitted on the __________Day of _____________ month, _______________ year

Authors Signature:

________________________________
16

REFERENCES
(2014,

September

17).

Retrieved

from

A.

Administration

of

Justice

Website:

of

Justice

Website:

http://www.gov.bw/en/PrintingVersion/?printid=1862
(2014,

September

9).

Retrieved

from

A.

Administration

http://www.gov.bw/en/PrintingVersion/?printid=3809
Administration of Justice. (2013). CIMS Newsletter, Vol. 5, Issue No. 2, 2-19.
Administration of Justice Pamphlet. (2014, October 30). Judicial Case Management, pp. 1-4.
Agudah, J. A. (1973). Legal Development in Botswana From 1885 to 1966. Botswana Notes and
Records, Vol. 5, 52-63.
Children's Act. (2009). Gaborone: Government Printer.
Constitution of Botswana. (2005). Gaborone: Government Printer.
Criminal Procedure and Evidence Act. (1997). Gaborone : Government Printer.
Dingake O., B. K. (2008). ADMINISTRATIVE LAW IN BOTSWANA: Cases, Materials and
Commentaries. Gaborone: Mmegi Publishing House.
Griffiths, J. (1986). What is Legal Pluralism. Journal of Legal Pluralism, No. 24, 1-55.
Hirsch, A. V., Ashworth, A., & Roberts, J. (2009). Principled Sentencing: Readings on Theory
and Policy. Oxford: Hart Publishing.
Love, C. (1992). Court Sentencing in Botswana: Role for Probation? Journal of Social
Development in Africa, Vol. 7, No. 2, 5-17.
Lucas, T. B. (2010). Juvenile Justice System and Social Work in Botswana: An Appraisal.
Botswana Notes & Records, Volume 42, 45-55.
Malila, I. S. (2010). Reconciling Plural Legal System: Between Justice and Social Order in
Botswana. Botswana Notes and Records, Vol. 42, 71-78.
Nsereko, D. D. (1991). Extenuating Circumstances in Capital Offences in Botswana. Criminal
Law Forum, Vol. 2, No. 2, 235-268.
17

Nsereko, D. D. (1999). Minimum Sentences and their effect on Judicial Discretion. Crime, Law &
Social Change, 361-384.
Otlhogile, B. (1993). Criminal Justice and the Problems of a Dual Legal System in Botswana.
Criminal Law Reform in Southern Africa, Vol. 4, No. 3, 521-533.
Otlhogile, B. (2009). Assessors and the Administration of Justice in Botswana. Botswana Notes
and Records, Vol. 26, 77-86.
Penal Code. (2005). Gaborone: Government Printer.
Quansah, E. K. (2008). The Botswana Law of Evidence. Gaborone: Bay Publishing.
Quansah, E. K. (2009). Admissibility of Confessions in Criminal trials in Botswana: An appraisal
of the statutory provisions . Sabinet Gateway, 325-339.
Quansah, E. K. (2009). Corroboration the Evidence of a Rape Victim in Botswana: Time for a
Fresh look. Botswana Notes and Records, Vol. 28, 231-238.
Rules of the Magistrates' Courts. (2011). Gaborone: Government Printer.
Shumba, A., & Moorad, F. (2000). A Note on the Laws against Child Abuse in Botswana. Pula:
Botswana Journal of African Studies, Vol. 14, No. 2, 172-177.

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