The Four Faces of Intoxication in the Botswana Criminal Justice System: “Defence”, Extenuation, Mitigation, and Aggravation

Abstract

AbstractIntoxication plays a role in the commission of crimes in most, if not all, jurisdictions. Botswana is no exception. Our law reports are replete with cases in which intoxication is alleged to have contributed to the commission of the offence. In this regard, courts continually find themselves contending with the consideration that they ought to give to the intoxication, in respect to both the criminal culpability of the accused person and their moral blameworthiness when it comes to sentencing. This paper highlights that, in the context of Botswana, intoxication may be treated as a defence, an extenuating circumstance, a mitigating factor, or an aggravating factor. It interrogates the approaches adopted by the courts in considering intoxication in these four roles. Given the divergence of judicial approach to intoxication in sentencing, the paper highlights the necessity of sentencing guidelines in order to attain a measure of predictability and consistency. Consequently, the paper assesses the sentencing guidelines adopted by other jurisdictions in respect of intoxication and the lessons to be drawn from such guidelines.