Way before any Motswana obtained an LLB, the most authoritative people on British common law were police officers. In years to come, the Botswana Police Service would establish its own legal department. This set of facts necessarily mean that BPS has more than passing familiarity with what entails murder and how a murder case should be investigated.
So, when the Botswana Defence Force started conducting anti-poaching operations which all too often ended up with bullet-riddled bodies of poachers sprawled on the ground, BPS’ understanding was that a crime had been committed and that a murder investigation had to be launched. That was not the understanding of the BDF high command and head-butting was inevitable.
“Initially, the police insisted that each poacher killed in the course of military operations was a homicide, requiring an elaborate investigation and the interrogation of BDF “murder suspects.” The police also insisted initially on seizing all the captured poacher matériel as evidence,” writes Dan Henk, using the French term for military materials and equipment. “Neither demand sat well with military personnel, who believed they simply were doing their duty—and doing it well—and who found their honor now somehow tarnished with unwarranted implications of illegality.”
Henk is a former military attaché at the United Embassy in Gaborone and interviewed current and former BDF officers about anti-poaching operations for his book. Nothing in what Henk states remotely suggests that the issue was ever resolved legally because “the resolution of such problems depended largely on the interpersonal skills of the junior officers on the scene, some of whom achieved better interagency working relations than others.” He also notes instances when senior BDF leaders (typically former deputy and later commander, Ian Khama) were obliged to intervene in disputes with the police over anti-poaching issues.
While the BDF and the police eventually achieved “much more cordial and cooperative relationships”, there was never legal resolution to the dispute and the law was never changed to change the status of death occasioned by an anti-poaching operation. It is more than likely that the cordial and cooperative relationships between the army and the police occur outside the law.
Poacher shootings also occur within what has been loosely referred to as the ‘shoot-to-kill’ policy. “Shoot-to-kill” is not actually a policy but a modus operandi that both BDF patrol teams and poachers use when they encounter each other in the bush. Henk writes that when they started foot patrols, soldiers came to realise that poachers would track them down with intention to kill them.