ENHANCING THE PROTECTION OF MINORS FROM DEFILEMENT IN BOTSWANA: MERITS AND FLAWS OF THE LAW AND THE PROCESS

Abstract

Adequate protection of minors from sexual exploitation by way of defilement should be the priority of every government. To this end, laws must be promulgated with the object of affording the required protection. The crafting of such laws is by no means an easy task. There are copious challenges that must be confronted in order to distil an effective law. These include deciding the appropriate age of consent by ensuring that all minors are protected whilst circumventing the pitfalls of criminalising non-exploitative sexual experimentation between adolescents. Moreover, there is the notable challenge of opting between making accommodations for the “mentally innocent” accused person by virtue of the mistake of age defence and rendering defilement a strict liability offence. Beyond the crafting of the laws, the criminal justice system must be sufficiently capacitated to achieve the effective prosecution of perpetrators of defilement. This entails the prosecution being fully alive to the elements of the offence and the nature of the evidence that is required to fruitfully prove the case against the accused person. On the other hand, judicial officers must be vigilant with respect to their duties in defilement cases principally where there is an unrepresented accused person. Any lapse in the system in this regard will regrettably result in the acquittal of persons who are otherwise guilty and this undercuts the protection that the law seeks to achieve. The essence of this paper is to assess the adequacy or otherwise of defilement laws in Botswana and the prosecution of defilement cases in light of the challenges highlighted above. Inspiration is drawn from how other jurisdictions have attempted to deal with the various challenges and recommendations are made in order to ensure that the protection of minors is enhanced and the object of the defilement laws is achieved.