Dintwa (“Applicant”) challenged the Constitutionality of Section 142(1)(a) of the Botswana Penal Code, as amended by Act No. 5 of 1998. The Section denies the right to bail to anyone accused of rape. Applicant argued that the Section violated Section 5(3)(b) of the Botswana Constitution, which states that any person who is arrested or detained upon the reasonable suspicion of having committed a criminal offense shall not be deprived of his personal liberty. He also contended that the Penal Code Section 142(1)(a) violated Section 10(2)(a) of the Constitution.
The issue in this case was whether Section 142(1)(a) of the Botswana Penal Code violated an accused’s right to liberty, as protected under Section 5(3)(b) of the Constitution, by denying bail in cases where individuals are accused of rape.
The Court noted that any person charged with a crime is presumed innocent until found guilty by a court of law. The Court therefore found that subjecting a person to automatic detention while awaiting trial, as permitted under Penal Code Section 142(1)(a), violates the person’s Constitutional right to liberty. Although Section 5(3)(b) of the Constitution establishes some limitations to the right to liberty, the Court stated that Section 142(1)(a) of the Penal Code does not fall within these exceptions. Section 5(3)(b) of the Constitution also provides that an accused should be released on bail if he or she is not tried in a reasonable time.
Therefore, the Court held that Section 142(1)(a) of the Botswana Penal Code violates an accused’s right to liberty as guaranteed under section 5(3)(b) of the Constitution of Botswana.