The proportionality principle is a critically important element of justice in modern justice systems. In many jurisdictions it serves as a symbol of commitment to fairness and justice on behalf of the victim, the society and the offender. More fundamentally, it is generally regarded as an important protection against punishment that may be considered as so barbaric or excessive as to amount to a violation of the human rights of the convicted person. For a transitional society, such as Botswana, that is experiencing rapid social change, the inherently liberalising effect of the jurisprudence on proportionality often comes into direct conflict with the imperative of penal instrumentalism that supposedly pervades African justice systems. It could, however, be argued that from a theoretical perspective there is no contradiction between the two. But as the courts try to modulate/limit punishment through the application of the principle, they are then accused of trampling on popular sentiment and trying to invalidate the efforts of the legislature to control crime. This article explores the application of the proportionality principle in Botswana in the context of these tensions and contradictions, generally, and, more specifically, in relation to punishment which may be thought to violate human rights.

Projects

Currently no objects available

Currently no objects available