Exploring the influence of legal and non-legal variables on sentencing in the context of the dual legal system in Botswana

Abstract

This study explores the influence of certain offence and offender-related factors or variables, here identified as legal and non-legal variables, on sentencing in the context of the dual legal system in Botswana. Differences in procedures and practices of customary and general courts have fostered the notion that Botswana operates parallel systems of criminal justice characterised by wildly different standards of justice. As a result many believe that similarly situated offenders appearing before the two types of court would be likely to suffer or be at risk of suffering significantly different punishments for similar offences simply because their cases have been sent to different types of courts for trial. However, despite animated debate around the subject, hardly any empirical research has been done on it. Accordingly, the present study attempts to measure inter-court variations in sentencing outcomes using multivariate analysis. It was postulated that there would be likely to be significant variations in sentencing outcomes of magistrate and customary courts regardless of whether the cases involved were of a similar type and/or whether the offenders were similarly situated or had similar attributes. Data used in this investigation was intended as complementary data for a large scale study on sentencing patterns in customary and general courts spanning a period of ten years. However, being more detailed, the latter covered a much shorter period. Despite limitations imposed by thinness of data, results of the study suggest that further research in this area has the potential to provide interesting insights into the nature and extent of variations in intra-system and inter-system sentencing that could inform the debate on the comparability of justice rendered by customary and general courts.