Lawyers who have the right to appear before the courts of Botswana are composed of lawyers and lawyers. While lawyers are general practitioners who provide many services to their clients that do not necessarily involve them in legal proceedings, lawyers or lawyers are advocacy specialists whose main tasks are to take cases to court. The conditions for admission and enrolment in practice are governed by the Law Practitioners Act 1996. The Indigenous Courts Proclamation No. 33 of 1943 (repealed by the African Courts Proclamation No. 19 of 1961) provided for the recognition of customary courts with limited jurisdiction in civil and criminal matters. The 1961 proclamation gave this Court unlimited jurisdiction in civil matters, provided that the parties were African. These courts have applied national laws and practices to African litigation in their jurisdictions/districts. The Court of Appeal is the highest court in terms of the hierarchy of the usual courts. The development of the judicial system is linked to the political development of Botswana. The administrative changes that have taken place from the time of colonization to the present day have also affected the judiciary and its nature.

The main tasks of the judiciary are to promote the settlement of disputes before the courts and cases within its jurisdiction. In this way, the judiciary contributes to the maintenance of peace and tranquility. The judiciary is established by the constitution as one of the three branches of government. Its central role in the governance of the country is defined in the constitution as the decision of civil and criminal cases involving citizens and the state. It consists of the Court of Appeal and the High Court and the Courts of First Instance. Botswana has a dual legal system; it is the right obtained: Romano-Dutch law that exists side by side with customary law. This is reminiscent of other former colonies. During the colonial period, the two foreign residents lived side by side with the country`s indigenous peoples in Botswana. Each company was governed by a legal system that was familiar to it. Foreign colonizers were governed by preserved law, while indigenous peoples (Batswana) were regulated under customary law. The judiciary is independent of the other two branches of government: the executive and the legislative. In order to further strengthen the independence of the judiciary and ensure that it is protected from interference by other branches, the Constitution requires the existence of the Judicial Service Commission (JSC).

The responsibility of the JSC is to evaluate and recommend officials for appointment to judicial positions and their disciplinary officers. Appointments to judges, although made by His Excellency the President, may only be made by the JSC on the recommendation of a single person, with the exception of the appointment of the President of the Supreme Court and the President of the Court of Appeal. The powers and main functions of the judiciary are set out in Part VI, article 95 of the Constitution, to hear and decide civil and criminal cases under any law. The ultimate goal of an effective and efficient justice system is to prevent people from taking the law into their own hands and to promote an amicable resolution of their disputes. The citizens of Botswana have the right to demand and enjoy the independence of the judiciary. Charles Manga Fombad is Professor of Law and Director of the Institute of International and Comparative Law in Africa (ICLA), Faculty of Law, University of Pretoria. He holds a Bachelor of Laws (University of Yaoundé), an LL.M. and Ph.D. (University of London) and a Diploma in Conflict Resolution (Uppsala University). Professor Fombad is a member of the editorial board of several prestigious national and international journals. He is a member of the South African Academy of Sciences, an associate member of the International Academy of Comparative Law and vice-president of the International Association of Constitutional Law.

He has published more than 90 articles in peer-reviewed journals and more than 50 book chapters, and is the author/editor of 15 books and monographs. He is the editor of the Stellenbosch Handbooks in African Constitutional Law, published by Oxford University Press. The fifth book in the series, Democracy, Elections and Constitutionalism in Africa, was published in March 2021.Professor Fombad is also co-editor (with Professor Rainer Grote of the Max Planck Institute) of the introductory reports on African constitutions published online as part of the Constitutions of the Countries of the World of the OUP. His research interests focus on comparative African constitutional law, media law, African Union law and legal history, particularly on issues of mixed systems and legal harmonization. Botswana`s legal system is based on Romano-Dutch law and customary law. Judicial review is limited to questions of interpretation. The judiciary consists of the High Court, the Court of Appeal and the courts of first instance (one in each district) The doctrine of precedent is also called stare decisis, which is a Latin expression that means “leave the decision as it is”. According to this principle, a lower court is bound by the decision of the higher court.

Needless to say, this doctrine is indeed based on a rigid hierarchy of courts and a regular system of legal relations. Respecting precedent helps to establish a regime of stable laws that creates predictability and ensures that the law evolves in accordance with the needs of the community. In addition to the judges, there is also the Attorney General and the Director of the Public Prosecutor`s Office. The Attorney General heads an extra-ministerial department and sits ex officio in the cabinet. He is the legal director of the government. The Director of the Public Prosecutor`s Office was part of the Attorney General`s Office until a constitutional amendment in 2005. Nevertheless, it is still subject to the administrative supervision of the Attorney General. The Director of public prosecution is usually responsible for all prosecutions initiated in the country on behalf of the government. The Attorney General and the Director of the Public Prosecutor`s Office are appointed by the President at their discretion, but must meet the requirements for appointment as a judge of the Supreme Court. Prior to the establishment of the Bechuanaland Protectorate, there were a variety of indigenous legal systems living in tribal areas, which is now collectively referred to as customary law.

The definition of common law is set out in section 2 of the Customary Courts Act 1969 and section 4 of the Common Law and Customary Act Act (Cap. 16:01). The Proclamation of 1891 instructed the High Commissioner to respect local laws. As a result, the laws of these indigenous peoples have been recognized, but have not been included in the general law of the land. The 1966 Constitution of Botswana did not change this position and still is today. The National Assembly of Botswana is a representative chamber of parliament. Constitutionally, this House has legislative power. The members of the National Assembly are elected by universal suffrage and are composed of women and men from different segments of the country`s society. Currently, the National Assembly consists of 63 members, 57 directly elected members under the simple majority system and a five-year term. The other four members are co-opted and the last two (President and Attorney General) are ex officio members. Botswana has a dual legal system; it is the law obtained, the Romano-Dutch law, which exists side by side with customary law.

It is not surprising that this is the case, because like all other colonies, Botswana had inhabitants of the colonial sovereign who lived side by side with the country`s indigenous peoples. Everyone had to be subject to a legal system that they knew. Although the two societies interacted with each other, the institutions of their government were constituted differently. The inhabitants of the colonial ruler were subject to preserved law, while indigenous (African) peoples were subject to customary law. Judicial officers are composed of court officials appointed to settle disputes, legal professionals and legal assistants. Those who decide disputes are judges appointed to the highest courts of the register, judges and persons appointed to customary courts. There are two methods of appointing Supreme Court judges. The first concerns the appointment of the Chief Justice of the Supreme Court and the President of the Court of Appeal. According to the Constitution, both are appointed by the President at his sole discretion without the involvement of any other person or authority.