STRUCTURE OF COURTS IN BOTSWANA
THE COURTS STRUCTURE
The justice system in Botswana depends on various levels of courts. This lesson will cover these courts and detail out responsibilities and roles of these courts in the carriage of justice.
Hierarchy of Courts of Botswana
1. Court of Appeal; 2. High Court and Industrial Court (of the same status but the industrial court is exclusively a labour issues/maters court); 3. Magistrates Courts [note that the different classes/grades of magistrates do not form a hierarchy for purposes of judicial precedent];
4. Customary Court of Appeal; 5. Paramount Chief’s Court/Urban Customary Court; 6. Senior Chief’s Representative Court; 7. Chief’s Representative’s Court; 8. Headman’s Court.
The above structure illustrates the courts of the two legal systems in Botswana. Courts 1 to 3 are common law courts while courts 4 to 8 are the customary law courts. The order of seniority or status of the court is as set out in the order of the numbering. Thus the superior court for Botswana is the Court of Appeal followed by the High Court and then Magistrates courts. The superior court for customary courts is the Customary Court of Appeal and in descending order to the headman’s court as the lowest court. Generally, the courts of the 8th and 7th officers noted above are the lower customary courts while those of the 6th and 7th number should be viewed as Higher Customary courts.
Judicial Precedent and applicable laws in the courts
The doctrine of judicial precedent is a common law principle that does not generally apply to customary courts. In the hierarchy of courts above, customary courts’ appeals ultimately go to the common law courts. In determining appeals from customary courts the common law courts must apply customary law. Thus their decisions are binding on the customary courts. It is not only the customary law decisions that are binding on the customary courts, the decisions of the common law courts on matters of criminal law [because customary courts use the Penal Code to determine the guilt of accused persons] are also binding on customary courts but within the context of the Customary Courts Act which prescribes for the procedural aspects regarding criminal law. Section 29 of the Act prescribes that “the practice and procedure of a customary court shall be regulated in accordance with customary law.”
The High Court and Court of Appeal as ‘superior courts of record’ (Constitution- section 95) are enjoined to apply customary law in cases and proceedings in which customary law is the proper law to apply. This is established by section 3 of the Customary Law Act Cap 16:01. Thus the common law courts can hear and determine any case under any law.
Section 15 of the Customary Courts Act prescribes that the law to be administered in the customary courts shall be customary law and the provisions of any written law which the court may be authorized to administer by any written law. Section 32 of the Customary Courts Act bars legal practitioners from appearing for clients before the customary courts (no right of audience). This provision makes it difficult for the doctrine of judicial precedent to apply effectively in the customary courts because legal practitioners could be able to assist the courts to direct them to binding decisions of the High Court and Court of Appeal and also to decisions of the Customary Court of Appeal which it would appear from practice have a binding effect on the lower customary courts. There is no law reporting of customary court cases because the principle of precedent does not apply to customary courts. Customary courts apply the customary law of their respective ethnic group within the territory that they operate in. Thus customary courts have limited jurisdiction or power in contrast to the common law courts.