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 person is entitled to resist arrest and

may, in certain circumstances, have defensible justication for assaulting a

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

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

arrest and exonerates the individual if they assault 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 in Botswana. It highlights the delicate balance

that must be struck between the exercise of this common law right and the

protection of police ofcers from assaults in the lawful 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 unlawful arrest. The paper also briey explores the

civil remedies that are available to an individual who has been subjected to

an unlawful arrest and detention.

1 Introduction

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

are critical tenets of every democratic dispensation. These rights are

entrenched in the constitutions of most jurisdictions.1 Moreover, the

rights are protected in various regional2 and international3 human

rights instruments. The common law also jealously guards these

*LLB (University of Botswana) LLM (Edinburgh), Lecturer in Law, Department of

Law, University of Botswan a.

1 For example, s11 of the Constitution of the Republic of Namibia 1990; s12 of the

Constitution of the Republic of South Africa 1996; s5 of the Constitution 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 Human Rights.

3 Article 9(1) of the International Covenant on Civil and Political Rights; 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 resist an unlawful arrest. This

common law right has been the subject of both commendation and

condemnation. This paper interrogates the exercise of the right to

resist an unlawful arrest within the context of Botswana’s criminal

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

circumstances under which one would be deemed to have been

justied in resisting an unlawful arrest, even to the point of being

exonerated from assaulting a police ofcer.

This presentation examines the requirements that have to be met

in order for a lawful arrest to be effected. In particular, it assesses

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

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

without a warrant and the safeguards 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 undertaken into the

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

an arrest without a warrant. The paper interrogates the offences of

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

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

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

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

from decisions from other jurisdictions on how they have sanctioned

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

parameters within which the right can be exercised.

The presentation explores the civil remedies that are available to

an individual who has been the subject of an unlawful arrest and

detention. It discusses the various principles that are applicable in

determining the damages payable, as well as the factors that are taken

into account in assessing the quantum of such damages.

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

right to resist unlawful arrest, it highlights the realistic vulnerabilities

that are attached to exercise of this right. Caution is extended to

citizens to ensure that the right is exercised within the set parameters,

particularly in relation to the requirement of proportionality. On the

other hand, it explores the duties and responsibilities that are borne

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

to resist unlawful arrest does not result in preventable fatalities but

rather serves the purpose for which it is intended.

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