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- Legal System
Botswana’s complex history has left it with a dual legal system based on a combination of Romano-Dutch and English Common Law principles, subsisting alongside customary law. The Common Law is based on Roman-Dutch law, and the criminal law mainly on English law, with South African law influencing evidence.
The ‘received’ legal system consists of the superior courts – the Court of Appeal, the High Court and the Industrial Court – and the Magistrates’ Courts. Additionally there are also systems of ‘tribal’ law and custom in rural districts, which have jurisdiction over everyday disputes and property relations, but are ultimately subordinate to statutory law. Tswana customary law, found in the laws and precedents of the eight recognised ‘tribes’, is valid in matters of property, inheritance and personal dispute arbitration in rural areas. These customary law cases are heard by village assemblies, known as kgotla, which are open to all, while the traditional chiefs act as court presidents. Additionally these cases can be taken to the customary court of appeal.
There are over 500 customary courts across the country, which operate on laws unique to particular tribes or communities. The customary courts are much more accessible to citizens than the received courts as they are free and often conducted in local languages. In instances where parties desire legal representation, or when the case involves a more serious crime or constitutional issue, it will be passed on to a magistrates’ court or more senior court in the ‘received’ court system. This can also occur if citizens appeal a customary court decision, either to a higher customary court or to the High Court. When High Court Judges are involved in dealing with customary law they are aided by assessors, elders from the particular tribe.
Lawyers in Botswana can practice as both advocates and attorneys. Legal practice in Botswana is governed by the Legal Practitioners Act (1996), which has no clause limiting foreign lawyers. Law firms in Botswana are mainly small, the number of lawyers ranging from 1 to 9 with a mean of 2. The Law Society of Botswana is the professional body and membership is compulsory for practicing lawyers.
Information from the World Economic Forum, The Global Competitiveness Report 2012-2013
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