The stock theft act and customary courts in Botswana: justice sacrificed on the altar of expediency?

Abstract

The incidence of stock theft has been high in Botswana, as it is elsewhere in the Southern African Development Community (SADC). In 1996, the problem compelled the country’s parliament to intervene and enact the Stock Theft Act. After 22 years of its being in operation, however, there is little evidence to suggest that the Act’s harsh penalties have led to a reduction in cattle theft. A more serious problem with the law is that its penalties are imposed by customary courts with scarcely any safeguards in place to ensure that justice is done. Arguably, justice is sacrificed at the altar of expediency in response to widespread popular revulsion against cattle thieves. This paper engages with the problem of cattle theft, examining what motivated the adoption of such a harsh law and what the implications are of granting customary courts the jurisdiction to deal with these matters. While there is an urgent need to repeal the Act, in the meantime it should be applied strictly, with all presiding officers of customary courts being required, at the beginning of every stock-theft proceeding, to inform the accused that he or she has a right to opt for a trial before a Magistrates’ court. This is one of the few safeguards provided for by the Act, but because it is ignored so often, many people end up in prison when they might have been acquitted had they been tried by the better-equipped Magistrates’ courts.