One Offence, Different Intentions: The Judicial Controversy of the <i>Mens Rea</i> for the Offence of Attempted Murder in Botswana

Abstract

Abstract Certainty is a cornerstone of every criminal justice system. In instances where controversy arises as to the application of any law, it is essential for it to be addressed promptly. Contrary to this need for certainty, there is judicial ambiguity regarding the mens rea for the offence of attempted murder in Botswana. There are cases which hold that the mens rea required is a specific intention to kill, and that nothing else suffices. However, some cases hold that an intention to cause grievous harm and recklessness are also sufficient. Unfortunately, the Court of Appeal, the apex court in Botswana, has made decisions that support each of these divergent positions. This article addresses the controversy of the mens rea for attempted murder in Botswana and argues that the Court of Appeal should resolve the issue by specifically overruling some of its previous decisions.