In our previous publication we looked at the Constitution as being the mother of all laws, it is the fountain from which ALL other laws flow from. It is therefore important to know where these other laws may be found, and these are commonly termed “ sources of law”.
Sources of Botswana Law
- The Constitution
- Customary law
- Common law
- Legislation
- Judicial precedent
The Constitution
On the 30 September 1966, the Bechuanaland Protectorate became the independent Republic of Botswana with Sir Seretse Khama as its first president. The Constitution of the Republic of Botswana came into effect on independence, and provided for a republican form of government with three organs of state namely legislature, the executive and the judiciary.
Botswana adheres to the principle of constitutional supremacy in terms whereof all acts of government and laws passed by the government may be struck down if found to be in contravention of any of the rights enshrined in the Constitution. The Constitution has a Bill of Rights which provides for basic fundamental rights and freedoms, such as the right to life, equality, personality, protection from torture and inhuman and degrading treatment and freedom of association and conscience.[1] The Constitution has in the past been relied on by indigenous peoples to protect their rights.[2]
The Constitution is strictly followed in application of any law. The courts’ independence is also enshrined in the Constitution .The Setswana phrase, “ga re lebe motho, re leba molato” which means that ‘the law is applied without taking into account the status of the person being tried’ is a guiding principle in application of law.
Customary Law
Prior to the establishment of the Bechuanaland Protectorate there existed a variety of indigenous legal systems living in tribal areas which is now collectively called customary law. The definition of customary law is given under section 2 of the Customary Courts Act, 1969 and section 4 of Common law and Customary Act (Cap. 16:01). The 1891 proclamation instructed the High Commissioner to respect the native laws. Therefore these indigenous peoples’ laws received recognition but did not get to be incorporated into the general law of the country. The 1966 Constitution of Botswana did not change this position and it remains so today.
Customary law therefore exists side by side with civil law, provided that the latter is not deemed repugnant to morality.[3] Notionally, the law recognises the customary laws of indigenous peoples in Botswana.
Common Law
Another source of law in Botswana is the common law which is a medley of both Roman-Dutch and English common law.
Roman Dutch law is said to be the common law of Botswana which was inherited from the Cape Colony. The Roman Dutch law origin is found in Roman law as influenced by Dutch customary law. It was introduced to the then-Cape Colony in 1652. Over the years it has been influenced by the English Common law after British colonization of the Colony. The Criminal Law of Botswana is originated from the English and evidence is based on South African Law. In Botswana, it has been developed over years by statutes passed by the Parliament and Judicial decisions.
In 2006 the High Court of Botswana specifically endorsed an English common law principle in terms of which colonial annexation does not automatically terminate ‘native title’ and found that the Basarwa had native title to the land within the Central Kalahari Game Reserve which they were unlawfully deprived of by the government.[4]
Legislation
Legislation is another major source of law. Legislation refers to laws that emanate from passed parliament or bodies to which parliament has delegated powers to legislate. Laws passed by parliament are called Acts and orders, proclamations, by-laws, regulations or rules refer to those laws passed by a subordinate/subsidiary body/authority. When a bill passes through the National assembly and assented to by the State President, it becomes the Act of Parliament. It comes into effect when published in the Government Gazette or at a later stage by a notice/proclamation that it will come into effect at a particular date.
It may grant or take away rights. Thus, for example, the transfer of mineral resources from individual tribes to the state was given effect by legislation. However, legislation must not be in contravention of the Constitution otherwise it may be struck down by the High Court upon application. Any law enacted by Parliament must be in consonance with the supreme law of the land.
Judicial Precedent
The doctrine of judicial precedent is also referred to as stare decisis, which is a Latin phrase which means “let the decision stand”. In terms of this principle a lower court is bound by the decision of the higher court. Needless to say, that this doctrine operates effectively upon a rigid hierarchy of courts and regular system of law reporting. The adherence to the precedent helps achieve a regime of stable laws that brings about predictability and ensures that law develops in accordance with community needs.
All the above are the sources of law in Botswana, should any of your right be infringed, look into these laws to see if you may have any redress and most particularly if all these other sources are in consonance with the mother of all laws- “the Constitution”.
PREPARED BY: KUDA TSHIAMO[5]
[1] Chr II Ch 1 Laws of Botswana.
[2] Sesana and Others v Attorney General judgment handed down on 13 December 2006) (CKGR case). See also the Matsipane Mosetlhanyane case.
[3] Customary Courts Act 1969 and sec 4 of Common law and Customary Act (Cap. 16:01).
[4] CKGR case 339 (per Phumaphi J).
[5] L.L.M CANDIDATE ( INTERNATIONAL TRADE AND INVESTMENT LAW, UNIVERSITY OF PRETORIA, POST-GRADUATE CERTIFICATE IN ADVANCED TAXATION ( BOTSWANA ACCOUNTANCY COLLEGE), BACHELOR OF LAWS ( UNIVERSITY OF BOTSWANA), LEGAL RESEARCH ASSISTANT ( TRI-AFRICAN ADVISORY SERVICES) , ATTORNEY AT LAW (ADMITTED TO PRACTICE IN THE COURTS OF BOTSWANA).
