10/11/2014

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 StudiesAttachment 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

1. WORK PLACEMENT EXPERIENCE..................................................................................5

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

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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.

2

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).

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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

matters1 (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 1 st 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

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

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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

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

5

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

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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

Courts2. 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 understands5 then the whole proceedings are null and void no matter the 2 CAP. 04:043 Ibid, Order 51(1) Arraignment Procedure4 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]

7

conviction and sentencing, the accused’s plea to the charge shall be taken and entered on the

record of proceedings6 or on good cause shown by the prosecutor, reserve the accused’s

plea7. 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 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 drafted10.

6 Ibid, order 51[2, 2]7 order 51[3]8 order 51[1(a)]9 Section 10(2a) of the Constitution and the entire section 10 provides provisions to secure protection of law.10 Rulings are those court orders at the end of cases which mentioned and Judgments are final verdicts.

8

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

CRIMINAL JUSTICE SYSTEM OF BOTSWANA

Figure 3: Magistrate Court Room

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,

9

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 doubt…

and 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 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 19 th 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 party’s 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

11 This principle is well laid in Woolmingtonv V DPP[1935] AC 46212 [1947] 2 All ER 372

10

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 justice who is not a member of the Botswana Police13.The courts

also adjudicate as Children’s Courts and there shall be attached, to every children’s court, a clerk

of the court who shall perform the same functions as those of the clerk of a magistrate’s court, a

presiding Magistrate, Children’s court assistant and probation officer14. Lastly courts can impose

punishment be it custodial or non-custodial 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

13 Criminal Procedure and Evidence section 228[1(ii)]14 Children’s Act of 2009 section 37

11

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 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.

15 Magistrate Court Act section5(1 & 2)

12

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 cross-examine their victims. This on its own despite traumatizes

rape victims even more instead of assuring protection by law.

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.

13

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 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 co-accused but the matter did not proceed to trial in the

16 CMMVL-000132-1417 1968-1970 BLR 406 (HC)18 2010 2 BLR 389 HC

14

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 Children’s 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 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 Children’s 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).

15

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 Children’s 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) won’t 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 Children’s Act.

(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 player’s 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

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appointment of court interpreters should be reviewed and there is need for periodical

assessment of such interpreters by an independent overseer.

PLAGIARISM DECLARATION

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

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.

Submitted on the __________Day of _____________ month, _______________ year

Author’s Signature:

________________________________

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