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| Title: | Reconciling plural legal systems: between justice and social disorder in Botswana |
| Author: | Malila, Ikanyeng S. |
| Year: | 2010 |
| Periodical: | Botswana Notes and Records (ISSN 0525-5090) |
| Volume: | 42 |
| Pages: | 71-78 |
| Language: | English |
| Geographic term: | Botswana |
| Subjects: | criminal law customary courts criminal procedure legal pluralism |
| External link: | https://www.jstor.org/stable/23237972 |
| Abstract: | At independence, Botswana retained the dual legal system inherited from the colonial era. However, in relation to criminal law, Botswana dispensed with dualism of law while retaining dualism of the courts. Botswana opted for criminal law anchored on a penal code based on the English common law to be appied by all courts, and partially standardized criminal procedure rules for customary courts. Thus, the basic model of dispute processing in criminal matters is based primarily on the legal formalist approach of the common law courts. This runs counter to the general scheme of dispute processing under customary law, which was inherently more flexible and offered various entry points and options for dealing with disputes. Limiting these processes under customary law has been a major source of friction betwen indigenous and received courts, as well as between the traditional leadership and politicians. Using an illustrative case, this article shows how the dispute process has become more unpredictable and complex under current arrangements. It shows how different dispute resolution mechanisms, especially the courts, try to navigate the conflicting ideals of legal formalism and a social order underpinned by customary law. Bibliogr., sum. [Journal abstract] |
