ABSTRACT
Chapter 11 focuses on criminal offences and, in particular, on cases of stock theft, following one case through its progress to the Botswana High Court and Court of Appeal in order to illuminate the legal learning and changing legal subjectivity of an accused and imprisoned rustler. Although customary courts have been denied the right to judge many types of crime, from murder and rape to serious bodily injury, they still retain the right to judge cases of theft, burglary, and insult, and, in cases of stock theft, to sentence culprits to five years in jail or more. This chapter critically considers customary court sentencing in cases of cattle theft or negligence in herding, recognising the huge symbolic value cattle are endowed with among many people in Botswana. It draws comparison with magistrate court sentencing in order to reflect on the equity of such heavy penalties in cases often involving young, impoverished men or cases where imprisonment leads to the destitution of whole families. It also considers the vicissitudes of the appeal process from a magistrate’s court to the Appeal Court and the construction of a subject, the accused, as ‘incorrigible’, a repeat offender, and a recidivist.
