The history and development of the rule-making power in the courts of Botswana and suggested reform

Vesting power in the courts or judges to make rules for the regulation of practice before them is relatively recent in Botswana. During the period of the Bechuanaland Protectorate rule-making power was largely vested in the High Commissioner, a colonial administrator. Later, when the power was transferred to a judicial officer, the rules were still subject to the High Commissioner’s approval. It was not until after independence in 1966 that the rule-making power was vested solely in the Chief Justice and the President of the Court of Appeal. These judicial officers exercise legislative power in that the Rules of Court they make under the authority conferred on them by parliament have the force of law. These powers are extensive. The author suggests that rule-making power be transferred to a ‘Rules Committee’, to be chaired by the Chief Justice and to include representatives of all branches of the judiciary, the legal profession, and the universities. This approach has been followed in other jurisdictions, including South Africa and Kenya. Although it will result in a break with a brief tradition, the High Court and Court of Appeal will still have the inherent powers to regulate their procedures in the interests of justice. Notes, ref.

Title: The history and development of the rule-making power in the courts of Botswana and suggested reform
Author: Kakuli, Geoffrey M.
Year: 1997
Periodical: The Comparative and International Law Journal of Southern Africa
Volume: 30
Issue: 2
Pages: 190-198
Language: English
Geographic term: Botswana
Abstract: Vesting power in the courts or judges to make rules for the regulation of practice before them is relatively recent in Botswana. During the period of the Bechuanaland Protectorate rule-making power was largely vested in the High Commissioner, a colonial administrator. Later, when the power was transferred to a judicial officer, the rules were still subject to the High Commissioner’s approval. It was not until after independence in 1966 that the rule-making power was vested solely in the Chief Justice and the President of the Court of Appeal. These judicial officers exercise legislative power in that the Rules of Court they make under the authority conferred on them by parliament have the force of law. These powers are extensive. The author suggests that rule-making power be transferred to a ‘Rules Committee’, to be chaired by the Chief Justice and to include representatives of all branches of the judiciary, the legal profession, and the universities. This approach has been followed in other jurisdictions, including South Africa and Kenya. Although it will result in a break with a brief tradition, the High Court and Court of Appeal will still have the inherent powers to regulate their procedures in the interests of justice. Notes, ref.