This book provides a history of Botswana`s legal system and places it in the context of other important legal systems. Prior to the establishment of the Bechuanaland Protectorate, there were various indigenous legal systems that lived in tribal areas, what is now collectively referred to as customary law. The definition of customary law is contained in section 2 of the Customary Courts Act 1969 and section 4 of the Common Law and Custom Act, Chap. 16:01. The proclamation of 1891 instructed the High Commissioner to respect the laws of indigenous peoples. As a result, the laws of these indigenous peoples have been recognized, but not incorporated into the general law of the country. The 1966 Constitution of Botswana did not change this position and still does so today. This second edition of Botswana`s legal system will be updated in 2013. It provides a history of Botswana`s legal system and places it in the context of other important legal systems. The book also exposes the sources of law in Botswana and gives a detailed description of the judicial system (which has been extensively reformed in recent years), advocacy, the legislative process and the interpretation of legislation. This book is well suited as a general reference work for law students and non-legal students in Botswana and as a useful introduction for foreign practitioners who want to understand the main differences between Botswana`s legal system and their own.
Part 2 – The development of the Botswana legal system and the sources of law The National Assembly of Botswana is a representative chamber of Parliament. Constitutionally, this chamber has legislative powers. The members of the National Assembly are elected by universal suffrage and are composed of women and men from different strata of Canadian society. Currently, the National Assembly consists of 63 members, 57 directly elected members by simple majority and a five-year term. The other four members are co-opted and the last two (President and Attorney General) are ex officio members. Chapter 15 – Introduction to Legal Writing – Writing a Research Paper It was not until 1938 that the colonial government attempted to establish a comprehensive judicial system. Judicial functions were exercised by administrative officials. The judicial structure envisaged was as follows: the development of the judicial system is closely linked to Botswana`s political development. The administrative changes that have taken place from the time of colonization until today have also affected the judicial system and its nature. The main tasks of the judiciary are to promote the settlement of disputes before the courts and to decide cases within its jurisdiction.
In this way, the judiciary contributes to the maintenance of peace and tranquility. The judiciary is established by the Constitution as one of the three branches of government. Its central role in the governance of the country is defined in the Constitution as the decision on civil and criminal cases involving citizens and the State. It consists of the Court of Appeal, the High Court and the Magistrates Courts. Botswana has a dual legal system; This is the right received: Dutch Roman law, which exists alongside customary law. This is reminiscent of other former colonies. During the colonial period, the two foreign residents lived side by side with the country`s indigenous peoples in Botswana. Each society is governed by a legal regime that is familiar to it. Foreign colonizers were regulated by received law, while indigenous (Batswana) were regulated by customary law. The judiciary is independent of the other two branches of government: the executive branch and the legislature. In order to further strengthen the independence of the judiciary and ensure that it is protected from interference by other arms, the Constitution requires the existence of the JSC. The JSC is responsible for evaluating and recommending officials for appointment to judicial posts and their discipline.
Appointments of judges, although made by His Excellency the President, may be made by JSC only on the recommendation of one person, with the exception of the appointment of the President of the Supreme Court and the President of the Court of Appeal. The powers and main functions of the judiciary are defined in article 95 of Part VI of the Constitution to hear and try civil and criminal cases in accordance with a law. The ultimate goal of an effective and efficient justice system is to prevent people from taking the law into their own hands and to promote the amicable resolution of their disputes. The citizens of Botswana have the right to demand and enjoy the independence of the judiciary. Botswana`s legal system is based on Roman-Dutch law and customary law. Judicial review is limited to questions of interpretation. The judiciary consists of the High Court, the Court of Appeal and the Magistrates` Courts (one in each district). The doctrine of precedent is also known as stare decisis, which is a Latin expression meaning “to let the decision stand.” For the purposes of this principle, a lower court is bound by the decision of the higher court. It goes without saying that this doctrine is indeed based on a rigid hierarchy of courts and a regular system of legal relations. Adherence to precedent helps create a system of stable laws that creates predictability and ensures that the law develops in accordance with the needs of the community.
Chapter 2 – Introduction to the World`s Major Legal Systems Chapter 3 – The Historical Origins and Evolution of the Legal System Aboriginal Courts Proclamation No. 33 of 1943 (repealed by African Court Proclamation No. 19 of 1961) provided for the recognition of customary courts with limited jurisdiction in civil and criminal matters.