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ABSTRACT
The proportionality principle is a critically important element of justice in modern justice systems. In many jurisdictions it serves as a symbol of commitment to fairness and justice on behalf of the victim, the society and the offender. More fundamentally, it is generally regarded as an important protection against punishment that may be considered as so barbaric or excessive as to amount to a violation of the human rights of the convicted person. For a transitional society, such as Botswana, that is experiencing rapid social change, the inherently liberalising effect of the jurisprudence on proportionality often comes into direct conflict with the imperative of penal instrumentalism that supposedly pervades African justice systems. It could, however, be argued that from a theoretical perspective there is no contradiction between the two. But as the courts try to modulate/limit punishment through the application of the principle, they are then accused of trampling on popular sentiment and trying to invalidate the efforts of the legislature to control crime. This article explores the application of the proportionality principle in Botswana in the context of these tensions and contradictions, generally, and, more specifically, in relation to punishment which may be thought to violate human rights.
Acknowledgements
I would like to thank Professor Bojosi Otlhogile of the Department of Law, Professor Dinokopila, former Assistant Registrar of the High Court, Private Attorney and Head of the Department of Law at the University of Botswana, and Camden Behrens, a lecturer in Criminology & Criminal Justice Studies, for their invaluable comments on this paper (which is largely based on a chapter from my doctoral thesis (2009)). However, I alone am responsible for any shortcomings in this work.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes
1 As a general principle of law it has wider application than this in both common and civil law but that is beyond the scope this article. For a synopsis of the history of the principle in its broader aspect see Eric Engle, ‘The History of the General Principle of Proportionality: An Overview’ (2012) 10 Dartmouth Law Journal 1.
2 In many English-speaking countries it is recognised as a common law principle. See e.g. Brett A Mason, ‘Not So Rational Philosophy: A Critique of Penalties and Sentences Act 1992 (Qld)’ (1995) QUT Law Journal 67; David Wood ‘The Abolition of Mandatory Life Imprisonment for Murder: Some Jurisprudential Issues’ in H Strang and S Gerull (eds), Homicide: Patterns Prevention and Control Conference Proceedings 1992 (Australian Institute of Criminology, Canberra, 1992) <https://aic.gov.au/sites/default/files/publications/proceedings/downloads/17-wood.pdf> accessed 24 June 2018; Mirko Bagaric and R Edney, ‘The Proportionality Thesis in Australia: Application and Analysis’ (2008) 4 The International Journal of Punishment and Sentencing 38; Julian V Roberts, Rafal Morek and Michael Ami Cole, ‘Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models’ (2006). Report Prepared for The Department of Justice Canada <www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr05_10/rr05_10.pdf> accessed 22 June 2018.
3 Dirk van Zyl Smit and Andrew Ashworth, ‘Disproportionate Sentences as Human Rights Violations’ (2004) 67(4) Modern Law Review 541; A von Hirsch ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?’ (1990) 1 Criminal Law Forum 259; A von Hirsch, ‘Proportionality in the Philosophy of Punishment’ (1992) 16 Crime and Justice 55; Youngjae Lee, ‘Why Proportionality Matters’ (2012) 160 University of Pennsylvania Law Review 1835.
4 Von Hirsch, ‘Proportionality in the Philosophy of Punishment’ (n 3) 56.
5 Joel Goh, ‘Proportionality: An Unattainable Ideal in the Criminal Justice System’ (2013) 2 Manchester Review of Law, Crime and Ethics 41.
6 See e.g. Alice Ristroph, ‘Proportionality as a Principle of Limited Government’ (2005) 55 Duke LJ 263; E Thomas Sullivan and Richard S Frase, Proportionality Principles in American Law: Controlling Excessive Government Action (2009).
7 Ristroph (n 6) 263.
8 Ristroph (n 6) 284–85.
9 See e.g. Andrew Novak, ‘Guilty of Murder with Extenuating Circumstances: Transparency and the Mandatory Death Penalty in Botswana’ (2009) 27 Boston University International Law Journal 173; A Novak, ‘Capital Sentencing Discretion in Southern Africa: A Human Rights Perspective on the Doctrine of Extenuating Circumstances in Death Penalty Cases’ (2014) 14(1) African Human Rights Law Journal 24; Andrew Novak, ‘The Abolition of the Mandatory Death Penalty in Africa: A Comparative Constitutional Analysis’ (2012) 22 Indiana International and Comparative Law Review 267.
10 Von Hirsch, ‘Proportionality in the Philosophy of Punishment’ (n 3) 56.
11 See n 2.
12 Von Hirsch, ‘Proportionality in the Philosophy of Punishment’ (n 3) 56.
13 At this level, it operates as common law or statutory law constraint on punishment to ensure fairness and justice.
14 In this form it is usually expressed as a Constitutional right of person not to be subjected to ‘ … torture or inhuman and degrading punishment and other treatment’ by the state. Constitutional provisions of this nature often borrow from or are designed so as to be in alignment with international instruments.
15 ICCPR, art 7, 999 UNTS 171, adopted 16 December 1966, entered into force 23 March 1976.
16 African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 1982 (African Charter) art 5.
17 See Moatshe v State: Motshwari and another 2004 1 BLR 1 (CA).
18 See e.g. Clover Petrus and Another v The State 1984 BLR 14, a well-known case from Botswana that is cited internationally.
19 Simon Coldham, ‘Criminal Justice Policies in Commonwealth Africa: Trends and Prospects’ (2000) 44 (2) Journal of African Law 218; Daniel D. Ntanda Nsereko, ‘Minimum Sentences and their Effect on Judicial Discretion’ (1999) 31 Crime and Social Change 363.
20 See von Hirsch, ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?’ (n 3); ‘Proportionality in the Philosophy of Punishment’ (n 3) for detailed analysis of the relationship between proportionality and different sentencing rationales.
21 The present discussion is limited to the post-independence period but reference will be made to the colonial period in so far as it is relevant to understanding evolution of the current penal system. It must also be noted that although a number of articles have been written on various aspects of punishment in Botswana far too little attention has been paid to the proportionality principle as a critically important element of the justice system. This article represents a modest attempt to fill that gap and as a result the approach it adopts leans towards descriptive de lege lata rather than a normative analysis.
22 RES Tanner, ‘Penal Practice in Africa: Some Restrictions on the Possibility of Reform’ (1972) 10 (3) Journal of Modern African Studies 447; John Hatchard, ‘Crime and Penal Policy in Zambia’ (1985). 23(3) Journal of Modern African Studies 483; Yash Ghai, ‘The Role of Law in the Transition of Societies: The African Experience’ (1991) 35 Journal of African Law 8; Coldham (n 19).
23 Tanner (n 22); Coldham (n 19); Richard S Frase, ‘Comparative Perspectives on Sentencing and Research’ in Michael Tonry and Richard S Frase (eds), Sentencing and Sanctions in Western Countries (Oxford University Press 2001) 263.
24 Tanner (n 22); Coldham (n 19) .
25 Tanner (n 22).
26 Hatchard (n 22).
27 Tanner (n 22).
28 Hatchard (n 22).
29 Colin Sumner, Crime, Justice and Development (Heinemann 1982).
30 Ghai (n 22).
31 Coldham (n 19).
32 Ghai (n 22); Clement Ng’ongo’la, ‘Controlling Theft in Public Service: Penal Law and Judicial Responses’ (1988) 32 (2) Malawi Journal of Law 72.
33 Tanner (n 22); Hatchard (n 22); Coldham (n 19).
34 Tanner (n 22).
35 World Prison Brief ‘Highest to Lowest-Prison Population Rate’ <www.prisonstudies.org/highest-to-lowest/prison_population_rate> accessed 10 April 2019.
36 See Novak (n 9)
37 Lukas Muntingh, ‘Alternative Sentencing in Africa’ Jeremy Sarkin (ed), Human Rights in African Prisons (Ohio University Press 2008).
38 Commonwealth Secretariat, ‘Report on Alternative Sentencing in Small Commonwealth Jurisdictions Southern Africa Programme’ (Gaborone, 9–13 June 2008).
39 Muntingh (n 37).
40 Marlies Bouman, ‘Crime and Punishment in Botswana’ (MA dissertation, Free University Amsterdam 1984).
41 Botswana National Archives (BNA) 1965 Item No S211/6/2.
42 Bouman (n 40); Ikanyeng S Malila, ‘An Analysis of Non-conventional Uses of Punishment in Colonial Botswana’ (MA dissertation, University of Durham 1993); Nsereko (n 19).
43 Commonwealth Secretariat, ‘Alternative Sentencing in Small Commonwealth Jurisdictions: Panacea or Placebo?’ (2008) 34(2) Commonwealth Law Bulletin 383.
44 Nsereko (n 19); Ikanyeng S Malila, ‘Emerging Trends and the General Sentencing Framework in Botswana (2014) 6 (2/3) African Journal of Legal Studies 171.
45 Commonwealth Secretariat (n 43); Constitution of Botswana; Ikanyeng S Malila, ‘A Comparative Study of Normative Aspects of the (Criminal) Trial Process in Customary and Magistrate Courts in Botswana with Specific Reference to the Structure of Discretion of Judges in Sentencing Matters’ (PhD thesis, University of Edinburgh 2009).
46 Government Gazette Extraordinary 42(53) (14 July 2004) B49.
47 Ikanyeng S Malila, ‘Severity of Multiple Punishments Deployed by Magistrate and Customary Courts Against Common Offences in Botswana: A Comparative Analysis’ (2012) 7(2) International Journal of Criminal Justice Studies 618. The study found that ‘(a) the variety of punishment combinations deployed by customary courts exceeded those employed by magistrate courts, sometimes by a very wide margin; (b) it was not unusual for the average number of multiple punishments used to punish a single offence in customary courts to exceed three whereas those deployed by magistrate courts rarely exceeded two; (c) customary courts registered the highest severity scores across all offence groups considered and (d) the severity score differentials ranged from large to very large’: 632.
48 AN Baillie, ‘Report of Territorial Survey Made of the Customary Courts’ (unpublished report, Gaborone 1969); Ian S Kirby, ‘The Criminal Justice System: A Motswana’s Perspective’ in K Frimpong (eds), The Law, The Convict and the Prisons (1985); Proceedings for the Second Botswana Prisons Service Workshop, University of Botswana, Gaborone, May 27 to June 5 1985; Malila, ‘Emerging Trends’ (n 44).
49 Kwame Frimpong, Criminal Law of Botswana: Cases and Materials (Associated Printers 2000).
50 Malila, ‘Emerging Trends’ (n 44); Malila, ‘Severity of Multiple Punishments’ (n 47).
51 C Love and RS Love, ‘Some Observation on Crime in Botswana 1980–1992’ (1996) 11(2) Journal of Social Development in Africa 33; B Otlhogile, ‘Criminal Justice and the Problems of Dual Legal System in Botswana’ (1993) 4(3) Criminal Law Forum 521.
52 Stephen John Stedman, The Political Economy of Democratic Development (Reinner 1993).
53 Alfred Eugene Isaacs, ‘The Challenges Posed by Mandatory Minimum Sentence Legislation in South Africa and Recommendations for Improved Implementation’ (LLM dissertation, University of the Western Cape 2004); John Hatchard, ‘The Fall of the Cane Again: Corporal Punishment in Namibia’ (1992) 36(1) Journal of African Law 81; John Hatchard, ‘The Fall of the Cane in Zimbabwe’ (1991) 35(1/2) Journal of African Law 198.
54 Global Initiative to End All Corporal Punishment of Children <www.endcorporalpunishment.org> accessed 22 August 2018.
55 Death Penalty Information Centre, ‘Abolitionist and Retentionist Countries’ <https://deathpenaltyinfo.org/abolitionist-and-retentionist-countries> accessed 22 June 2018.
56 The rate currently stands at 208 per 100,000 of the national population ‘World Prison Brief’ <www.prisonstudies.org> accessed 22 June 2018.
57 Almon Shumba and Fazlur Moorad, ‘A Note on the Laws Against Child Abuse in Botswana’ (2000) 14(2) Botswana Journal of African Studies 172–77; EM Tafa, ‘Punishment: The Brutal Face of Botswana’s Schools’ (2002) 54(1) Educational Review 17; Elizabeth Maxwell and Alice Mogwe, In the Shadow of the Noose (Bay Publishing (Pty) Ltd 2006).
58 Bonolo R Dinokopila, ‘Bringing the Paris Principles Home: Towards the Establishment of a National Human Rights Commission in Botswana’ (2012) 14 University of Botswana Law Journal 45.
59 The African Commission on Human and Peoples’ Rights ‘Mission Report to the Republic of Botswana’ 2005 <www.achpr.org/files/sessions/38th/mission-reports/botswana> accessed 22 June 2018.
60 ‘Zim aliens get cane for Christmas’ Midweek-Sun (Gaborone, 7 January 2004); ‘Zim envoy unhappy with cane “present”’ Midweek-Sun (28 January 2004).
61 Ditshwanelo <www.ditshwanelo.org.bw/death_penalty.html> accessed 22 June 2018.
62 <www.ipsnews.net/2006/05/death-penalty-five-years-after-bosch-nothing-changed-in-botswana/> accessed 21 June 2018. Even though pressure to ban the death penalty has been increasing the government remains steadfast in its support for this form of punishment. The European Union added its voice to those calling for the abolition of capital punishment following execution of Joseph Tselayarona in February 2018: The Voice ‘EU Delegation condemns Botswana on the Death Penalty’ (Francistown, 20 February 2018) <https://thevoicebw.com/eu-condemns-botswana-on-capital-punishment/> accessed 21 June 2018.
63 Disproportionality is a negative expression of proportionality.
64 See e.g. Mudangule v State 1986 BLR 265 (CA).
65 See e.g. s 18(40 of the Customary Court Act.
66 Moatshe v State (n 17).
67 Onkemetse Tshosa, National Law and International Human Rights: Cases of Botswana, Namibia and Zimbabwe (Routledge 2001); D van Zyl Smit and A Ashworth (n 3); Y Lee, ‘The Constitutional Right Against Excessive Punishment’ (2005) 91 Virginia Law Review 77.
68 s 7(2) Constitution of Botswana.
69 Thomas Roe, ‘Human Rights and the Mandatory Death Penalty in the Privy Council’ (2002) 61(3) The Cambridge Law Journal 505.
70 Onkemetse Tshosa, ‘The Death Penalty in Botswana in the Light of International Law’ (2004), presented at the First International Conference on the Application of the Death Penalty in Commonwealth Africa (Entebbe, Uganda, 10–11 May 2004 <www.biicl.org/files/2216_tshosa_death_penalty_botswana.pdf>; Kealeboga N Bojosi, ‘A Commentary on Recent Constitutional Challenges to the Death Penalty in Botswana’, presented at the First International Conference on the Application of the Death Penalty in Commonwealth Africa (Entebbe, Uganda, 10–11 May 2004) <www.biicl.org/files/2292_bojosi_recent_constitutional_challenges.pdf>.
71 Constitution of Botswana.
72 Petrus (n 18). The case of Clover Petrus reached Court of Appeal after the High Court reserved a question of law for consideration by the superior court. The question that sought to be answered was whether corporal punishment as contemplated in section 301(3) of the Criminal Procedure and Evidence Act was not ultra vires s 7 of the Constitution. A number of other questions were later added including the question whether corporal punishment administered in instalments was not offensive to the Constitution.
73 Ntesang v State 1995 BLR 151 (CA).
74 Hanging is the method by which the death penalty is carried out in Botswana.
75 Bojosi, ‘A Commentary’ (n 70).
76 Ntesang (n 73).
77 Lehlohonolo Bernard Kobedi v the State Court of Appeal Criminal Appeal No 25/2001 (unreported).
78 Constitution of Botswana.
79 Constitution of Botswana.
80 Cap 08:01.
81 Moatshe (n 17).
82 Ncube vs S 1988 LRC 442.
83 Ntesang v the State (n 73).
84 Tshosa, ‘The Death Penalty in Botswana’ (n 70).
85 Moatshe (n 17).
86 Mudangule (n 64).
87 See e.g. Matlapeng and Another v State 1991 BLR 369 (CA).
88 Mojagi v State 1985 BLR 560 (HC).
89 Mudangule (n 64).
90 Mason (n 2); Wood (n 2); Bagaric and Edney (n 2).
91 Ntesang (n 73).
92 2007 (3) BLR 706 (HC).
93 2007 (2) BLR 725 (CA).
94 Novak, ‘Capital Sentencing Discretion in Southern Africa (n 9) 34.
95 As above.
96 See e.g. State v Regoeng 1987 BLR 476 (HC).
97 1986 BLR 483(HC).
98 Desai and others v The State 1987 BLR 55 (CA).
99 State v Tlhokomelo 1981 BLR 272.
100 As above.
101 Mphodi v The State 2007 3 BLR 799 (HC).
102 State v Tlhokomelo (n 99).
103 Malila, ‘Severity of Multiple Punishments’ (n 47).
104 Baillie, ‘Report of Territorial Survey Made of the Customary Courts’.
105 DG Boko, ‘Trial and Customary Courts in Botswana: The Question of Legal Representation’ (2000) 11(4) Criminal Law Forum 445.
106 Malila, ‘A Comparative Study’ (n 45).
107 Malila, ‘Severity of Multiple Punishments’ (n 47).
108 Tshosa, National Law and International Human Rights (n 67). Botswana’s jurisprudence on the nature of the relationship between ‘torture or inhuman and degrading punishment and other treatment’ and ‘gross disproportionality’ is still developing (see in particular Moatshe). It has some way to go before it is sufficiently well developed for one to be able to state with any degree of confidence whether the prohibition in s[ection] 7(1) stands on its own legs although it involves a proportionality assessment in the way that Art 3 ECHR (see Vinter, Grand Chamber, para. 102) and the ‘Cruel and Unusual Punishment’ clause of the US Eighth Amendment (see Solem v Helm, 463 US 277 (1983), for example, seem to be interpreted. Nevertheless judicial and scholarly debate around whether ‘cruel and degrading’ ‘includes proportionality, has a long history: see WH Mulligan, ‘Cruel and Unusual Punishments: The Proportionality Rule’ (1978) 47 Fordham L Rev 639; Weems v United States 217 US 349 (1909) 371; S v Dodo 2001 (3) SA 382 (CC) 303 [Ackermann J]. Smit and Ashworth (n 3) 544 have observed that ‘ … in practice it seems that the two interpretations are often interwoven and that, even where they are distinguished, they may operate in combination.’
109 D van Zyl Smit and A, Ashworth (n 3).
110 United Nations Treaty Collection ‘Convention against Torture and other Cruel, Inhuman and Degrading Treatment of Punishment’ (New York 10 December, 1984) <https://treaties.un.org/Pages/ViewDetails.aspx?src=treaty&mtdsg_no=iv-9&chapter=4&lang=en#EndDec> accessed 24 June 2018.
111 See e.g. Petrus (n 18).
112 Ramaphoi v The State 2007 1 BLR 697 (HC).
113 Mogatla v State 2001 1 BLR 192 (CA).
114 Moatshe (n 17).
115 Criminal Procedure and Evidence Act (CP&E) s 300(2).
116 K Frimpong, ’The Role of the Criminal Justice System and its Impact on Crime Prevention in Botswana’ in K Frimpong (ed), Report on the Proceedings of National Conference on the Evaluation of Crime Prevention Programmes, 6–8 September 2006 66–80.
117 RJV Cole, ‘Between Judicial Enabling and Adversarialism: The Role of the Judicial Officer in Protecting the Unrepresented Accused in Botswana in Comparative Perspective’ (2010) 11 University of Botswana Law Journal 81.
118 E Macharia-Mokobi, ‘Defining Exceptional Extenuating Circumstances: Statutory Omission or Judicial Opportunity?’ (2011) 24(2) South African Journal of Criminal Justice 113.
119 See e.g. Moatshe (n 17).
120 See e.g. Matlho v The State 2008 1 BLR 84 (CA).
121 See e.g. Mokone and Another 2003 2 BLR 225 (HC).
122 See e.g. Ramaphoi v The State (n 110).
123 Moatshe (n 17).
124 Solem (n 108)).
125 Petrus (n 18). One of the judges explained manner of administration in this way: ‘To drive home the point I am trying to make, I shall give only two examples. “Capital punishment” was lawful in the country as at 29 September 1966. Even if one holds that capital punishment is saved by the subsection, but by no stretch of the imagination can anyone hold that the killing by instalment of a person convicted of an offence for which that description of punishment was available is saved by the subsection? “Capital punishment” can be carried out by starvation, by slow poisoning, by guillotine, by progressive cutting off of the parts of the body, by decapitation and so on. But no one, I am sure, can reasonably argue that these methods of effecting capital punishment are saved by the subsection (2). Again “corporal punishment” was lawful in the country as at 29 September 1966. It cannot be argued I hope that flowing from this, any form of whipping whatsoever and wherever, and at any intensity whatsoever, and for any length of period whatsoever is permitted by the subsection. In my view all that is permitted is the generic term “corporal punishment.”’
126 Shimane Moatshe v The State (Criminal Appeal 97/2001).
127 Bojosi, ‘A Commentary’ (n 70) 13.
128 Republic of Botswana ‘Report of The Joint Advisory Committee of Ntlo ya Dikgosi (House of Chiefs) and Botswana Council of Churches on Social Values’ October 2008.
129 As above.
130 Nsereko (n 19).
131 Tshosa, ‘The Death Penalty in Botswana’ (n 70).
132 Bojosi, ‘A Commentary’ (n 70).
133 Novak, ‘Guilty of Murder’ (n 9) 203.
134 Mpelegang (n 92).
135 Petrus (n 18); Ntesang (n 73).
136 Second Protocol to the ICCPR Aiming at the Abolition of the Death Penalty <www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx> accessed 24 June 2018.
137 Tshosa, ‘The Death Penalty’ (n 70); Bojosi, ‘A Commentary’ (n 70); KN Bojosi, ‘The Death Row Phenomenon Comes to Botswana: Lehlohonolo Bernard Kobedi v The State’ (2005) 38(2) The Comparative and International Law Journal of Southern Africa 304.