Justice and Fairness in Criminal Procedure: Assessment of the Criminal Jurisdiction of Customary Courts in Botswana

Abstract

Justice and fair process are the basic values underpinning constitutional democracy. This article defines them in the context of criminal proceedings in Customary Court in Botswana. The Customary Courts Act excludes legal representation. For purposes of this article, the right to legal representation shall only be discussed in the context of criminal proceedings. It argues that unfairness and injustice are inherent in Botswana’s dual legal system. Two-thirds majority of inmates in Botswana prisons are convicts emanating from Customary Courts. It argues that the question whether one goes to prison or not can be dependant which court tried him/her. The paper argues that the prohibition of legal representation is not justifiable. This article further argues that prohibiting legal representation in Customary Courts is ultra vires unconstitutional. Finally, this article makes a case for the abolition of the criminal jurisdiction of Customary Courts in Botswana.