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Title: A comparative study of normative aspects of the (criminal) trial process in customary and magistrate courts in Botswana, with specific reference to the structure of discretion of judges in sentencing matters
Author: Malila, Ikanyeng Stonto
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 2009
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This thesis is a comparative study of outcomes of the criminal process in customary and magistrate courts in Botswana with specific reference to sentencing outcomes. The main objective of the study was to determine whether differences in the structure of the sentencing discretion of judges of customary and magistrate courts as regards the types and combinations of punishments they may impose in respect of any offence triable in either type of court resulted in the imposition of unjustifiably dissimilar punishments for similar offences. Accordingly, the study examined and compared disposals and sentencing patterns of the customary and magistrate courts more generally, and more specifically the use and severity of multiple punishment(s) awarded by the two courts in respect of similar offences in the period 1991-2001. The primary hypothesis was substantially, if only partially supported, in so far as it assumed that differences in the use and severity of multiple punishments could be explained primarily in terms of differences in the discretion of the judges as regards combinations of punishments they may employ against any particular triable-either-way offence. The study found that, though some of the differences in types and combinations of multiple punishments deployed by the two courts could be attributed to differences in the structure of the discretion as to combination of punishments as postulated, some could not be explained in those terms despite the apparent exclusive use by one type of court as against the other of particular combinations of multiple punishments. Nevertheless, the study found that when customary courts employed multiple punishments, they tended to punish more severely than magistrate courts did similar offences. This was evident from the following general patterns: (a) the variety of punishment combinations deployed by customary courts exceeded those employed by magistrate courts, sometimes by a very wide margin (b) it was not unusual for the average number of multiple punishments used to punish a single offence in customary courts to exceed three whereas those deployed by magistrate courts rarely exceeded two (c)customary courts registered the highest severity scores across all offence groups considered (d) the severity score differentials ranged from large to very large. Taken together, these differences amounted to unjustifiable disparities between the sentencing outcomes of the two courts.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available