n South African Journal of Criminal Justice - Recognising the centrality of disclosure to the realisation of equality of arms in criminal proceedings in Botswana

Volume 23, Issue 3
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



Due to its powers and duties to investigate and prosecute crime, the State remains the dominant party in the criminal justice system. It is a given fact, therefore, that the accused does not stand on equal footing with the prosecution in criminal proceedings. Whereas the Constitution of Botswana guarantees procedural rights to accused persons, the accused remains potentially disadvantaged in the country's adversarial system. A sure way of guaranteeing meaningful participation by the accused in the criminal process is the recognition of the principle of equality of arms. Docket disclosure is however a fundamental instrument in maintaining some semblance of equality between the prosecution and the accused in criminal proceedings. By engaging in a liberal interpretation of the Constitution, the courts of Botswana have been able to enforce docket disclosure. The willingness of the courts to grant the accused access to police dockets goes a long way towards fostering equality of arms. Even though the principle of equality of arms has no formal recognition in Botswana, the courts, by embracing disclosure, have given implied effect to the principle. However, since the principle is an essential element of a fair trial, perhaps the courts should consider its formal application.

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