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NCJ Number: 147970 Find in a Library
Journal: Criminal Law Forum  Volume:4  Issue:3  Dated:(1993)  Pages:521-533
Author(s): B Otlhogile
Date Published: 1993
Page Count: 13
Type: Survey
Format: Article
Language: English
Country: United States of America
Annotation: The dual legal system in Botswana is explored.
Abstract: The duality of legal systems developed during the colonial period - customary law existing side by side with general law - was largely retained at the independence of Botswana in 1966. This essay examines the nexus between the customary law and received law in the sphere of criminal justice. Included in this examination are discussions of Kgosi Seepapitso IV cases, the status of customary law crimes and the "written law" test, the lack of legal representation despite a constitutional guarantee to legal representation, and discretion in sentencing. The essay concludes that the dual legal system inherited from the colonial period persists, with customary law plainly subordinate to general law. The author expresses concern that the question never asked is why a legal system that regulates the lives of the majority of the people should be subordinated to a system with which very few people have any connection. The inevitable precedence of general law over customary law ultimately has served to undercut the legal and moral authority of both legal regimes. Footnotes
Main Term(s): Courts
Index Term(s): Africa; Criminal justice system analysis
Note: This article is a revised version of a paper presented at a conference organized by the Society for the Reform of Criminal Law on "Criminal Law Reform in Southern Africa," Windhoek, Namibia, June 15-17, 1992.
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