Emerging Trends and the General Framework for the Exercise of Sentencing Discretion in Botswana

Abstract

Like other common law jurisdictions, Botswana has, in recent years, seen an increase in the number of interventions by the legislature to structure sentencing powers of judges through primary legislation. This trend has given rise to concerns about the erosion of the sentencing discretion of judges in some quarters. Against this background the present paper outlines and discusses the nature of discretion exercisable by judges in sentencing matters in Botswana and the general framework for the exercise of such powers. The paper argues that despite the recent increase in the volume of mandatory minimum enactments, the general framework for the exercise of discretion in Botswana remains fundamentally unchanged not least because the courts have in some measure reclaimed some of the discretion they had lost as a result of unprecedented expansion in the volume of mandatory minimum legislation in the 1990s. More positively, a recent amendment to the Penal Code restoring some of the judges’ discretion suggests that parliament has come to recognise the need for and importance of greater flexibility in the structure of the sentencing discretion of judges.