Abstract: The principle of equality of arms is firmly entrenched in the jurisprudence of international tribunals, but hardly at all in domestic systems. This article argues for the principle to be applied in Botswana's adversarial system, as a way of ensuring procedural equality and enhancing fair trials. After examining the normative value of the principle, the article refers to a number of domestic jurisdictions that have applied the principle. It also examines the general acceptability of equality and fairness in Botswana case law. This represents a foundation for applying the principle in Botswana. The principle was developed by the European Court of Human Rights, creating its own concept of fairness in trials, irrespective of the position in domestic systems. Since the principle is of international origin, it is necessary to note that “judicial territoriality” and Botswana's dualist system do not pose obstacles to the application of the principle.
Abstract: The role of the judicial officer in Botswana’s adversarial system has evolved
over the decades. Traditionally, the judicial officer in the adversarial system
plays a neutral role while the parties present their cases. The semblance of
neutrality compels the judicial officer to remain passive and refrain from
interfering with the process. Over the years, the courts have recognised that the
unrepresented accused cannot get a fair trial as she is unaware of the rules of
procedure and evidence. This being the case, the unrepresented accused
cannot effectively participate in the proceedings. Consequently, the courts
have over the years stated that judicial officers have a duty to assist
unrepresented accused persons. This position was recently given added
impetus by the Court of Appeal. This article discusses the duty of the judicial
officer to the unrepresented accused and its implications for Botswana’s
adversarial system. In so doing, comparative analysis is made with Australia,
South Africa and to some extent Namibia, which share similar (adversarial
common law) systems with Botswana.
