Botswana Law Journal - latest Issue
Volume 6, Issue 12, 2007
The independence andeffectiveness of Constitutional Courts in Sub-Saharan Africa: the South African experienceAuthor G. DevenishSource: Botswana Law Journal 6, pp 3 –26 (2007)More Less
This paper discusses the independence and effectiveness of the judiciary in Africa in the context of the South African paradigm. With one of the most modern Constitutions in the world and a powerful Constitutional Court, the South African judicial system illustrates how a modern judiciary can emerge from an evil apartheid system that had co-opted and used the judiciary to sustain it.
Limits on the powers to amend constitutions: recent trends in Africa and their impact on constitutionalismAuthor C.M. FombadSource: Botswana Law Journal 6, pp 27 –60 (2007)More Less
A constitution should be an enduring document. Most African independence constitutions were probably designed to endure but were quickly, easily and arbitrarily amended and transformed to operate as ""brakes"" rather than ""accelerators,"" by the continent's post-independence leaders. It can be argued that one of the major causes of the political and constitutional instability that marked the continent's first three decades of independence was the ease with which constitutions were amended to suit the political designs of the governments in power. Modern constitutionalism entails, as one of its core elements, restrictions on the ability to amend the constitution.
Author E.K. QuansahSource: Botswana Law Journal 6, pp 61 –80 (2007)More Less
The hearsay rule has proved problematic in its application in common law jurisdictions. This article explores the origin of the application and deals with the attitude of practitioners and judges to the existence of the rule and finds that although the existence of the rule is acknowledged, no attention is paid to it in court proceedings. It is concluded that the rule is either by ignorance or design ignored. It is therefore suggested that the rule should be applied as intended or some reform be undertaken to streamline its application.
Author A.O. NwaforSource: Botswana Law Journal 6, pp 81 –94 (2007)More Less
The rule in Foss v Harbottle1 makes it clear that a court will not ordinarily intervene in a matter which it is competent for the company to settle itself or deal with an irregularity which the company can ratify or condone under its own internal procedures. Where it is alleged that a wrong has been done to a company, prima facie, the only proper plaintiff is the company itself. The rigidity of the application of this rule and the inherent injustice it may cause to minority shareholders has given rise to various judicial and lately, statutory exceptions under which minority actions, not only for the enforcement of personal rights, but also corporate rights, are recognised.
Author E.K. Fombad, C.M. & QuansahSource: Botswana Law Journal 6, pp 95 –106 (2007)More Less
One of the important hallmarks of any progressive society is the ability for it to ensure that its laws are not only just but are kept up-to-date and made readily accessible to all who are affected by them. Whilst it is important that the law must be stable, it cannot be static. The aim of this commentary is to review certain aspects of the 2002 Revision of Laws Act.
Sneaking Aboriginal Title into Botswana's legal system through a side door: Review of Sesana and Others v the Attorney-GeneralAuthor C. Ng'ong'olaSource: Botswana Law Journal 6, pp 107 –130 (2007)More Less
On 13 December 2006, the High Court of Botswana delivered its ruling in the long running dispute concerning the relocation of some Basarwa, (Bushmen), from their ancestral lands in the Central Kgalagadi Game Reserve (CKGR). The Court found in favour of the Basarwa applicants on some of the issues. Government did not appeal. Survival International, the chief backer of the Basarwa cause, spent the year vilifying the Botswana Government for failure to comply with rulings of its own court. The contentious issues include the right of all Basarwa, including those not reflected among the applicants in the case, to enter and reside in the CKGR; their right to be provided with water in the reserve; and their entitlement to special licences for hunting game.