Sources of the Criminal Law of Botswana

Abstract

The purpose of this article is to examine the sources of the general criminal law of Botswana.2 Prior to the creation of a Protectorate there existed in the country several indigenous systems of law operative within tribal areas which later collectively became known as the customary law. Included in this customary law was an ill-defined body of criminal law which can be termed the customary criminal law. We are not, however, examining the sources of this customary criminal law but rather of the criminal law which was originally introduced by statute on the establishment of the Protectorate and which was administered in a separate system of courts. Botswana is in an almost unique position in this respect3 because after the formal establishment of the Protectorate it received what may be broadly, but inaccurately, called the Roman-Dutch criminal law. Subsequently this was abolished and in its place a Penal Code was introduced which was based mainly on English law. The customary criminal law will be considered in this article but only in the broad context of its present position in the legal system and the effect of the general criminal law on its application.