Sovereign Immunity in Botswana: The Case for a Sovereign Immunities Act

Abstract

This article makes the case for the promulgation of a Sovereign Immunities Act in Botswana. State or sovereign immunity in Botswana is governed by the common law, whereas diplomatic immunity is governed by the Diplomatic Immunities and Privileges Act, 1968. Several court decisions in Botswana on questions of sovereign and diplomatic immunity have revealed that there exists some confusion and conflation in the application of sovereign immunity and diplomatic immunity laws. The conflation has sometimes led to unfortunate decisions which incorrectly apply rules of diplomatic immunity to cases that are concerned with the immunity of States. The purpose of this article is, first, to analyse recent decisions in the area of state and diplomatic immunity in Botswana; second, to identify common areas of confusion; and, third, to take a comparative look at the United Nations Convention on Jurisdictional Immunities of States and their property, which though not yet in force, provides a succinct codification of customary international law rules of state immunity. The article then considers the benefits that could be gained through the promulgation of a Sovereign Immunities Act for Botswana. The paper concludes with a recommendation that Botswana should accede to and domesticate the Convention on Jurisdictional Immunities of States and their Property in the form of a Sovereign Immunities Act for Botswana.