DETERMINING THE CONSTITUTIONALITY OF REVERSE ONUS CLAUSES IN BOTSWANA

Abstract

That the burden lies with the prosecution to prove its case against the accused beyond reasonable doubt is a well-known legal jargon even to the non-legal mind. This would ordinarily mean that the prosecution should establish every element of an offence. However, the law is no ordinary science. It makes bold declarations. But a deeper indulgent into its maze and tunnel-like structure leads to the discovery of several exceptions and qualifications. The common law principle that the burden of proof lies with the prosecution is no exception. It is subject to the defence of insanity. There are also statutory exceptions to the general rule. The acceptance that statutory exceptions may impose reverse onuses on the accused to prove certain issues and the Westminster model of parliamentary supremacy has led to a proliferation of reverse onus clauses in the statute books of several countries. The introduction of bills of rights in some countries has however resulted in challenges to reverse onus clauses in the courts of law. Consequently, some of these clauses have been declared unconstitutional. This article examines the constitutional validity of reverse onuses in Botswana against the background of two constitutional models. It concludes that while it is constitutionally possible to challenge reverse onuses in Botswana, no clear theoretical framework has been established.