Fine margins between right and rogue: The right to resist an unlawful arrest and the liberty to assault a police officer in Botswana

• Author: Dambe, B.J.
• Pages: 191-213
• DOI: https://doi.org/10.47348/SACJ/v34/i2a2
• Citation: (2021) 34 SACJ 191
• Published date: 17 November 2021
• Date: 17 November 2021

Fine margins between right and

rogue: The right to resist an

unlawful arrest and the liberty

to assault a police ofcer in

Botswana

BABOKI JONATHAN DAMBE*

ABSTRACT

On the face of it, the contention that a pers on is entitled to resist arr est and

may, in certain circu mstances, have defensible justic ation for assaulting a

police ofcer, appears incongruous w ith law and order. Yet, the common

law recognises and preser ves the right of every individual to resist un lawful

arrest and exonerates the ind ividual if they ass ault a police ofcer in the

process of rebufng such un lawful arrest. This pape r interrogates the scope

and application of this right i n Botswana. It highl ights the delicate balance

that must be struck b etween the exercise of thi s common law right and the

protection of police ofcers f rom assaults in the lawf ul execution of their

duties. This is done th rough an assessment of relevant statutory provisions,

local cases, and the approaches adopted i n other jurisdictions that recogn ise

the right to resist an unl awful arres t. The paper also briey explores t he

civil remedies that a re available to an individual who ha s been subjected to

an unlawful a rrest and detention.

1 Introduction

The right to libert y and the protection from arbitrary a rrest and detention

are critical tenets of every democr atic dispensation. These rights a re

entrenched in the constitutions of most jur isdictions.1 Moreover, the

rights are protected in various regiona l2 and international 3 human

rights instru ments. The common law also jealously guard s these

* LLB (University of B otswana) LLM (Ed inburgh), Lectur er in Law, Department of

Law, University of Botswan a.

1 For example, s11 of the Constit ution of the Republic of Nam ibia 1990; s12 of the

Constitution of t he Republic of South Af rica 1996; s 5 of the Constit ution of the

Republic of Botswana 1966 .

2 Article 6 of the A frican Charter on Hum an and Peoples Rights; art 5 of the Europ ean

Convention on Human Right s; art 7 of the American Convention on Huma n Rights.

3 Article 9(1) of the Internat ional Covenant on Civi l and Political Right s; art 9 of the

Universal Declar ation of Human Rights.

https://doi.org/10.47348/SACJ/v34/i2a2

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(2021) 34 SACJ 191

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rights and entitles an individual to resis t an unlawful ar rest. This

common law right has been the subject of both com mendation and

condemnation. This paper interrogates t he exercise of the right to

resist an unlawful a rrest within t he context of Botswana’s criminal

justice system. Through an asse ssment of case law, it highlights the

circumstances under which one would be deemed to have been

justied in resisting an u nlawful ar rest, even to the point of being

exonerated from assaulting a police ofcer.

This presentation exami nes the requirements that have to be met

in order for a lawful arrest to be ef fected. In particul ar, it assesses

the powers that are given to police ofcers to effect arrest s without a

warrant. It furt her accentuates the signicance of the power to arrest

without a warrant and the safeguard s that are put in place in order to

minimise abuse of t his power and to protect citizens from its capricious

exercise. In this regard, an in- depth enquiry is u ndertaken into the

notion of ‘reasonable suspicion’ as one of the core prerequisites of

an arrest without a warra nt. The paper interrogates the offences of

assaulting a police ofcer and resisting arre st in terms of s 249(b) of

the Penal Code.4 In this regard an assessment is m ade of the common

law right to resist an unlawful a rrest as a defence to a charge under

s249(b) of the Penal Code. In so doing, extensive inspir ation is drawn

from decisions from other jurisd ictions on how they have sanctioned

the exercise of the right to resist an unlawf ul arrest and dened the

parameters within wh ich the right can be exercised.

The presentation explores the civil remedies that are avai lable to

an individual who has been the subject of an un lawful arre st and

detention. It discusses the various pri nciples that are applicable in

determining the d amages payable, as well as the factors that are taken

into account in assessing the quantum of such da mages.

Although the paper advocates for the retention of the common-law

right to resist unlawful a rrest, it highlights the rea listic vulnerabi lities

that are attached to exercise of this right. Caution is ex tended to

citizens to ensure that the r ight is exercised within the set para meters,

particularly in relation to the requ irement of proportionalit y. On the

other hand, it explores the duties and responsibilities that a re borne

by police ofcers to ensure that the exercise of the common law right

to resist unlawful ar rest does not result in preventable fatalities but

rather serves the purpose for which it is i ntended.

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