Academic journal article International Journal of Criminal Justice Sciences

Severity of Multiple Punishments Deployed by Magistrate and Customary Courts against Common Offences in Botswana: A Comparative Analysis

Academic journal article International Journal of Criminal Justice Sciences

Severity of Multiple Punishments Deployed by Magistrate and Customary Courts against Common Offences in Botswana: A Comparative Analysis

Article excerpt

Introduction

There is growing disquiet amongst sections of the public, the legal community, scholars and international agencies about variability in the standards observed in customary and general courts/western style courts in Botswana (WLSA, 1999; Boko, 2000; Tshosa, 2001). Concerns revolve mainly around trial processes and their outcomes (Ballie, 1969; Kirby, 1985; Boko, 2000) where these courts have concurrent jurisdiction. Customary and general courts apply the same basic law, found mainly in the Penal Code (Brewer, 1974; Sanders, 1985; Fombad, 2004). While there are significant differences in procedure rules governing the trial process in the customary and general courts, there has been some attempt to converge and harmonize them (Brewer, 1973 & 1974). For example the principles underlying some of the rules such as those pertaining to standard of proof required for conviction, are the same. Before the Penal Code became the universal criminal law to be applied by both customary and general courts, the Customary Courts Act (CCA hereafter) was amended in order to align punishments imposed by customary courts with those found in the Penal Code (Brewer, 1973 & 1974). However, major differences between the customary and general system remain at institutional, value and process level despite various attempts at convergence (Malila, 2010, p. 71). It is these differences, which often result in disparities in outcome in comparable cases that generate controversy (Kirby, 1985; Boko, 2000).

This paper considers the problem of variability of practices and standards between the two legal systems from a sentencing perspective. More specifically, it focuses on the comparative severity of multiple punishments imposed by customary and magistrate courts on offenders in relation to selected offences that are triable in either type of court.

Focus of the Study

This study presents results of an investigation that was part of a large study on sentencing outcomes of customary and magistrate courts in two large population centres in Botswana. It was hypothesized that there would be likely to be differences in the way the two types of court deployed multiple punishments and the severity of those punishments. For purposes of comparison, the study focuses on the combinations and severity of punishments deployed against common offences that are triable in both courts.

Hypothesis:

Multiple punishment(s) deployed by customary and magistrate courts against similar categories of offences are generally likely to differ in severity when weighted and compared with each other.

Method

Primary data from which information used in this paper was extracted was gathered by means of a census of recorded criminal cases going back ten years (1991-2001) at the two peri-urban villages of Kanye and Mochudi in the southern part of Botswana. The census yielded a total of 10 024 criminal cases tried before magistrate and customary courts.

Measuring severity of multiple punishments

The task of determining and measuring the relationship between punishment severity and offence seriousness is, on its own, a complex one. But it becomes appreciably more so if it involves and is done in context of cross-systems comparisons as is the case in present study. In view of this, the present section considers measurement of punishment severity and offence seriousness generally, and how it was tackled in present the study, specifically.

Relating Punishment Severity to Offence/ Offence Seriousness

According to von Hirsch (2004, p. 185), while analyses of opinion surveys involving members of the public suggest that it is possible for ordinary people to reach a consensus regarding the comparative seriousness of offences; it is much more difficult to define clearly from a theoretical point of view what offence gravity means. He argues that between the two elements that go to the gravity of the offence, namely culpability of the offender and harmfulness of the conduct, it is often easier to determine the former dimension because substantive law provides some guidance whereas in the case of the latter there is usually no guidance at all. …

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