The San in Botswana and the Criminal Justice System
giventhe limited resources of the applicants,the logistics of picking up witnesses fromvarious spots inside CKGR, and the diffi -culties in preparing the testimonials as thelegal team and witnesses were scatteredin makeshift accommodation. The needto strategise on the longer issues was attemptedby smaller but urgent practicalproblems, including diffi cult access to thee-mail, fax, photocopying and printing. Inshort all the paraphernalia of modern datagathering used for consolidation of arguments.Most notable once the case properstarted, the formalities of the legal processtook control, the lawyers took centre stage,and the applicants became spectators.”Sidsel Saugestaan, Impact of InternationalMechanism on IndigeneousRights in Botswana, Int’l Journal of HumanRights No. 1, 2011 The question of the San and theCriminal Justice System is onewhich has received little or no attentionat all.
It has not been establishedas too whether or not a research on thematter has been done and it is highly probablethat none has been undertaken. As anindigenous group that lives in peripheralareas and routinely marginalized, governmenthas not adopted any specifi c policyin respect of the San and Criminal JusticeSystem. Thus the San fall under the sameCriminal Justice System as the rest of thesociety.There are many fundamental hypothesisquestions that arise in respect of the San inBotswana and the Criminal Justice System.They relate mainly to issues of languageand court process, access to justice, lack ofinfrastructural development, legal aid andlegal presentation.Our criminal legal system is accusatorialin nature and the accused person ispresumed innocent until proven guilty. TheConstitution guarantees the right to fairtrial within a reasonable period of time andby an independent and impartial court.Botswana has a dual legal system inwhich common law exist side by side withthe customary law.
In some instances indigenouspeople have been known to usecustomary courts for adjudication evenover criminal matters. In the context ofBotswana, the Stock Theft Act for exampleempowers Dikgosi to preside over cases ofstock theft. The Penal Code equally empowerstribal leaders to adjudicate overcases of common assault or public nuisance.These systems of criminal justicehave been found to be highly cheap and accessibleand fast in the delivery of justice.However, a question arises as to whetherthe San make use of this system consideringthat they remain a relatively nomadicsociety and are therefore not organizedto have systems and even where they do,whether their movements have any impactin this regard.The language and procedures employedin the subordinate courts, High Court andCourt of Appeal are formal.
The languagebarrier is however, mitigated by the availabilityof language interpreters. Translationhowever does also present the problemof distortion of evidence provided byan accused / witness. The procedures inthe Courts are rigid. The aura in the courtroom is simply intimidating for the uninitiated.The authority of the judicial offi cersis viewed with reverence. As a result it isnot uncommon for the poor to avoid highercourts where they are unable to expressthemselves more freely in their mother language