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Background of the Judiciary
Background of the Judiciary

The development of the Judiciary is intertwined with the political development of this country. The administrative changes that have taken place from the time of the Protectorate to date have also affected the Judiciary and its nature. The Chief Justice, Hon Julian Mukwesu Nganunu, sums up the functions of the Judiciary as follows; ‘to promote the resolution of disputes in Courts and to deal with committed crimes. By so doing, the judiciary is contributing to the maintenance of peace and tranquility’.

The Judiciary is established by the Constitution as one of the three arms of Government. Its pivotal role in the governance of the country is defined in the constitution as the adjudication of both civil and criminal cases involving citizens and the state. It comprises of the Court of Appeal and the High Court.

Botswana has a dual legal system; that is the received law, Roman Dutch Law subsisting side by side with customary law. It is not surprising that is the case because, like all other colonies, Botswana had inhabitants of the colonial master living side by side with the indigenous people of the country. Each had to be governed by a legal regime, which it was familiar with. Although the two societies interacted, the institutions of their governance were differently constituted. Inhabitants of the Colonial Master were govemed by the received law while the indigenous (Africans) were regulated under customary law.

The Judiciary is independent from other arms of government; that is the executive and the legislature. To further reinforce the independence of the Judiciary and to ensure that it is insulated from interference from the other arms, the Constitution creates the Judicial Service Commission. The J SC’s responsibility is the assessment and recommendation of officers to be appointed for Judicial posts. Judicial appointments, although made by His Excellency the President, can only be made on the recommendations of the Judicial Service Commission, except the appointment of the Chief Justice and the President of the Court of Appeal. The powers and main functions of the Judiciary are defined under part VI, Section 95 of the Constitution as to hear and determine any civil and criminal cases under any law. An effective and efficient Judiciary will stop people from taking the law into their own hands and promote an amicable resolution of their dispute. Judicial Independence is a right that a citizen must demand and enjoy.

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