Special Issue: Sentencing in Botswana: Challenges and prospects

• Author: Macharia-Mokobi, E.
• Date: 06 July 2020
• Published date: 06 July 2020
• Pages: 45-65
• Citation: (2020) 33 SACJ 45

Sentencing in Botswana:

Challenges and prospects

E MACHARIA-MOKOBI∗

ABSTRACT

Botswana’s sentencing regime has se en few changes since independence.

Fifty years hence, some ar eas of sentencing appear to be out of step wit h

international huma n rights standard s. In particu lar, Botswana retain s the

death penalty and jud icial corporal pun ishment, both of which have been

abolished by many states world-wide, including sever al southern Afr ican

countries. Nevertheless, B otswana remain s rmly in favour of these

penalties. Botswan a has increasingly been u sing mandatory mi nimum

sentences as penalties for cert ain offences. Some legal comme ntators and

judges view mandatory sente ncing as an unjustiable us urping of judicial

discretion. In respon se to the perceived loss of discretion, j udicial ofcers

have sometimes circumvented ma ndatory mini ma in sentencing. From the

perspective of legislators however, mandatory sente nces are seen as a crime-

control tool and an effective method to ac hieve uniformit y in sentencing.

This art icle considers the continued util ity of the death penalt y and judicial

corporal punish ment and mandatory sentenci ng is discussed and pos sible

alternatives to these sentences a re proposed. The possible promulgation

of a Sentencing Commission for Bot swana is also considered . The article

presents an assessment of t hese issues in sentencing law and prac tice and

makes proposals for law reform.

1 Introduction

Sentencing is one of the most pivotal moments of a trial. It is the event

that the accused person in the dock is probably most concerned about.

This is because it is at the moment of sentencing that the fate of the

accused person is determined . For the accused person in Botswana,

this is the moment when they will lea rn whether they will be requi red

to pay a ne, receive a suspended sentence, serve jail time, be subjected

to the whip, or suffer the death penalty. It can be argued that for the

victim, and the prosecution, sentencing is equ ally momentous. For the

victim, it should bring with it an end to the cr iminal justice process,

and for the prosecutor, a conclusion to the trial.

Nevertheless, sentencing has been described as t he ‘wasteland of the

la w’. 1 According to Terblanche, sentencing is a sometimes forgotten

* LLD (UP), Senior Lect urer, Department o f Law, University of Botswan a.

1 ME Frankel ‘Establ ishing facts and prov iding reason: lawlessne ss in sentencing’ i n

M Wasik (ed) The Sentencing Process (1997) .

45

(2020) 33 SACJ 45

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and neglected area of the law, with minimal study a nd inquiry into its

processes.2 It has proved slow and sometimes seemingly impervious

to change. It is also an area of law that is susceptible to politicisation

and even knee-jerk reactions by legislators keen to appear ‘tough on

crime’. It is, however, an area of law deserving of in- depth study and

consideration because of its particul arly personal and inescapable

effects on the accused and the victi m and its central role in the

maintenance of order in society.3

With regard to Botswana, the st udy of sentencing has shown traces

of the malaise described above. Sentencing law has been la rgely

static for many years. It has received moderate attention in research.

A dea rth of statistics on sentencing t rends in the country is al so

evident. Change has been informed largely by the legislatu re, as a

response to increasing crim inality. It has not been driven by empirical

evidence of effectiveness or otherwise of impose d penalties.

Sentencing options in Botswana have remained la rgely unchanged

since independence. Botswana retains t he death penalty, judicial

corporal punishment and, since t he early 1990s, Botswana has

increasingly relied on mandatory sentencing in r esponse to increasing

criminal ity. In recent years, there have been proposals for the creation

of a sentencing council for Botswana as a tool to achieve greater

uniformity i n sentencing. These four areas of sentencing have also

triggered the most discussion and debate over the years and form the

focus of this article.

The purpose of this a rticle is three-fold. First, to prese nt a brief

overview of the sentencing regime in Botswan a; secondly, to discuss

current issues in sentencing in Bot swana that have been outlined

above. In the second part therefore, the article wil l address the

continued utility of the death pen alty, judicial corporal punishment

and mandatory min imum sentencing. This assessment is coupled with

a recommendation for law reform. The next part of the ar ticle will

consider whether promulgation of a sentencing council for Botswana

will offer much in combating dispar ity in sentencing or whether such

council may be viewed as a further a ssault on judicial discretion.

2 Overview of sentencing framework

Sentencing options available in Botswana are the deat h penalty,

imprisonment, corporal pun ishment, nes, forfeiture and secur ity to

keep the peace.4 These are prescribed in Botswa na’s Penal Code, rst

2 SS Terblanche A Guide to Sente ncing in South Africa 3ed (2 016) 1.

3 JJ Joubert (ed) Criminal Pr ocedure Handbook 11ed (2013) 43; Frankel op cit (n1) 56.

4 Sections 25– 31 of the Penal Code.

46 SACJ . (2020) 1

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