Fine margins between right and rogue: The right to resist an unlawful arrest and the liberty to assault a police officer in Botswana

Abstract

On the face of it, the contention that a person is entitled to resist arrest and may, in certain circumstances, have defensible justification for assaulting a police officer, appears incongruous with law and order. Yet, the common law recognises and preserves the right of every individual to resist unlawful arrest and exonerates the individual if they assault a police officer in the process of rebuffing such unlawful arrest. This paper interrogates the scope and application of this right in Botswana. It highlights the delicate balance that must be struck between the exercise of this common law right and the protection of police officers from assaults in the lawful execution of their duties. This is done through an assessment of relevant statutory provisions, local cases, and the approaches adopted in other jurisdictions that recognise the right to resist an unlawful arrest. The paper also briefly explores the civil remedies that are available to an individual who has been subjected to an unlawful arrest and detention.