Abstract
This chapter examines developments in Botswana, which, like a few other countries in the Southern African region, is unique in that it received two entirely different and potentially conflicting legal traditions, the English common law and the Roman-Dutch law. The country has since its independence in 1966 made great strides in modernising its laws in a manner that incorporates and reflects its dual English law and Roman-Dutch legal heritage whilst also taking into account its customary law. Although Botswana is one of only two African countries that has not changed or substantially revised its independence Constitution, the other country being Mauritius, the discussion in this chapter shows that it has nevertheless adapted its laws to reflect contemporary legal developments. This is reflected not only in the country’s approach to positive law but also in the manner of legal reasoning and the renewal of its jurisprudence.
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- 1.
The Southern African countries that share this legal heritage with Botswana are Lesotho, Namibia, South Africa, Swaziland and Zimbabwe.
- 2.
It is important to point out that there have been several amendments to the 1966 Constitution but none of them of a substantial manner. The other country is Mauritius that has retained its 1968 independence constitutions, with also insignificant amendments.
- 3.
See Tshosa (2007), pp. 229–246.
- 4.
[1992] BLR 119 (Botswana) at 154.
- 5.
Id.
- 6.
[1966] 3 All ER 875.
- 7.
In, Brownlie (2003), p. 41.
- 8.
[1992] BLR 119 at p.129.
- 9.
See generally Fombad (2013), pp.74–91.
- 10.
Othlogile (1995).
- 11.
See Fombad (2010).
- 12.
For an example of a case where a Botswana judge of the High Court was misled into relying on South African precedents, see Fombad (2014).
- 13.
[1989] BLR 421.
- 14.
Ibid at p. 420.
- 15.
[1991] BLR 169 at p. 183.
- 16.
See a discussion of these reforms by Himsworth (1974).
- 17.
It is worthwhile pointing out that this started as part of the University of Botswana, Lesotho and Swaziland, with the campus in Lesotho, before the University of Botswana was established in 1981.
- 18.
(MAHLB-000836-10)[2012] BWHCI (12 October 2012). Judgment delivered by the Honourable Justice Dr Dingake, and Ramantele v Mmusi and Others, CACGB-104-12 (Unreported) judgment of the Botswana Court of Appeal delivered on 3 September 2013. For a critical commentary on this case, see Fombad (2014).
- 19.
Keorapetse (2017).
- 20.
See Ramaphane (2017).
- 21.
Örürü (2008), p. 13.
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Fombad, C.M. (2020). Reconciling Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Age of Globalisation in Botswana. In: Tusseau, G. (eds) Debating Legal Pluralism and Constitutionalism. Ius Comparatum - Global Studies in Comparative Law, vol 41. Springer, Cham. https://doi.org/10.1007/978-3-030-34432-0_3
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