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Compensating The Victims of Crime in Botswana

Published online by Cambridge University Press:  28 July 2009

D. D. N. Nsereko
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A victim of crime is any person who is hurt physically, mentally, financially, or economically as a result of criminal conduct. He may sustain permanent physical or mental incapacitation as a result of such conduct. His health may be impaired. His property may be permanently lost, destroyed, or damaged. His reputation in society may be irreparably damaged. His business or professional interests may be ruined. His social standing may be shattered, and this is especially true of victims of sexual offences. His family's welfare may also be dealt a heavy blow, and this is especially so where he or she dies or where his or her ability to support them is diminished or totally extinguished. For the most part, the victim is innocent, going about his activities lawfully and peacefully.

Type
Articles
Information
Journal of African Law , Volume 33 , Issue 2 , Autumn 1989 , pp. 157 - 171
Copyright
Copyright © School of Oriental and African Studies 1989

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References

1 See DrJunod, N. P., “Reform of Penal Systems in Africa,” 2 East Africa L.J. 31 (1961)Google Scholar wherein he cites a Tsonga saying that musasi wa nnadzu i kuria, i.e. the redemption of crime is restitution, and Aupa Khasu v. The State Botswana H.D. Cr.App. No. 68 of 1984 (unreported) wherein Corduff, J. stated that “traditionally compensation of the aggrieved party was the accepted way of doing justice in Botswana”.

2 See Hussein Hersi v. Yusuf Deria Ali (Somali) (1965) 9 Journal of African Law 170Google Scholar. Also see Cantini, P., “The Evolution of blood-money for Homicide in Somalia” (1971) 15 Journal of African Law 77Google Scholar. Cook, R. A., “Blood-money and the law of homicide in the Sudan,” (1962) Sudan L.J. 470Google Scholar.

3 See Ahamed Mahamoud vs. R (1959) East Africa L. Rep. 1087Google Scholar. In this case elders of a Somali community in Kenya paid compensation to the complainant in respect of an assault on him by the accused, a member of the community.

4 Facing Mount Kenya (London, 1939), at 226Google ScholarPubMed.

5 Askey v. Holden Wine Co. Ltd. [1948] 2 All E.R. 35Google Scholar.

6 Section 175 of the Criminal Procedure Code.

7 Section 211 of the Magistrates Courts Act.

8 Section 178 of the Criminal Procedure Code.

9 Act 5 of 1981, section 28(e).

10 See Boberg, P.Q.R., Law of Persons and the Family (Capetown, Juta, 1977) at 647Google Scholar.

11 This aspect of the Act has been criticised by a colleague of the writer. He would have preferred the juvenile himself being ordered to pay the compensation, for example by way of a community service order. See Otlhogile, Bojosi, “Juvenile deliquency in Botswana and the 1981 Children's Act.” 18 Comparative & International Law J. of Southern Africa 396 (1985)Google Scholar.

12 See State v. Moemedi Nikie Ramotogo H.C. Rev. Case No. 221 of 1984Google Scholar.

13 Contrary to section 92 of the Penal Code.

14 H.C. Cr.App. No. 183 of 1983 (unreported).

15 For example, see Bond v. Chief Constable of Kent, [1983] 1 All E.R. 456Google Scholar.

16 (1979–1980) B.L.R. 60Google Scholar.

17 (1920–1953) H.C.T.L.R. 218Google Scholar. Cited with approval in State v. Sarefo (1971) 1 B.L.R. 26Google Scholar.

18 Criminal Procedure and Evidence Act, section 313.

19 Ibid., section 314.

20 Many compensation orders have been invalidated by the Botswana High Court on this ground. See State v. Boy Ton (1972) 1 B.L.R. 42Google Scholar. State v. Gaontse Selawe, H.C. Rev. Case No. 465 of 1984Google Scholar (unreported). State v. Kerileng Mothobi, H.C. Rev. Case No. 4 of 1985Google Scholar (unreported). State v. Simon Modise Thamage, H.C. Rev. Case No. 35 of 1985 (unreported)Google Scholar. State v. Ontuetse Staff, H.C. Crim.App. No.125 of 1984 (unreported)Google Scholar. Regina v. Swikiri Radiante & Another (1962) H.C.T.L.R. 124Google Scholar.

21 State v. Mmipi (1968–1972) B.L.R. 32Google Scholar.

22 See Schapera, Isaac, A Handbook of Tswana Law & Custom (London, 2nd ed., 1984) at 214Google Scholar.

23 The Attorney-General v. Merriweather Moswang Court of Appeal No. 10 of 1987 (unreported)Google Scholar. In the earlier case of State v. Mmipi (1968–1972) B.L.R. 32Google Scholar the High Court per Young C.J. seemed to suggest that trial courts had no such discretion. Said the learned Chief Justice “Although the power is in terms permissive, the term ‘may’ in this context, (that is in the case of powers vested in a public officer exercisable on application by a member of the public) means ‘must’ in proper cases.”

24 Ibid.

25 [1974] 2 All E.R. 666 at 670Google Scholar. Cited in Elias Mogami Lepang Lekorwe v. The State, and Daniel Molaodi Makhura v. The State Cr.App. No. 99 of 1985Google Scholar and Cr.App. No. 172 of 1984.

26 See n. 23, supra.

27 See Ramakolwane Ditlotlo and Another v. The State H.C. Cr.App. No. 90 of 1985Google Scholar.

28 See State v. Jani (1974) 1 B.L.R. 99Google Scholar, and S v. Limbo (1976–1978) B.L.R. 78Google Scholar.

29 See no. 27 supra, per Murray, J. In S. v. Limbo (1976–1978) B.L.R. 78Google Scholar Mahomed, J. similarly stated that section 312 of the Criminal Procedure and Evidence Act “should not be invoked to order compensation in respect of damages … which could only be proved by a lot of evidence which would convert a criminal trial into a contested action.”

30 Regina v. Swikiri Radiante & Another (1902) H.C.T.L.R. 124Google Scholar.

31 See Section 299 of the Criminal Procedure & Evidence Act.

32 Section 51.

33 (1972)2 B.L.R. 59Google Scholar.

34 See S v. Tawengwa (1981) B.L.R. 264Google Scholar.

35 See Section 304(1) of the Criminal Procedure & Evidence Act.

36 Section 304(2) of the Criminal Procedure & Evidence Act.

37 See Julia Seleka & Another v. The State H.C. Cr.App. No. 85 of 1978 (unreported)Google Scholar.

38 Spaceman Mooketsi Ngwebula v. State, H.C. Cr.App. 29 of 1984 (unreported)Google Scholar.

39 Elias Mogami Lepang Lekorwe v. The State & Daniel Molaodi Makhura v. The State H.C. Cr. App. No. 92 of 1985 (unreported)Google Scholar. For a similar view see Keatlaretse Gosiame v. State, (1982) 1 B.L.R. 76Google Scholar, per Corduff, J.

40 Aupa Khasu v. The State H.C. Cr.App. No. 68 of 1984 (unreported)Google Scholar.

41 U.N. Doc. DPI/895—August 1986—10 M.

42 Art. 9.

43 Art. 12.

44 Art. 13.