Obonye Jonas, a senior law lecturer at UB recently wrote an article titled: "Letsholathebe vs The State: towards the abolition of spousal exemption in Botswana?" In 2008 when Kirby was still a High Court Judge he delivered a judgment in which he declared marital rape a prosecutable office in Botswana.In his article Jonas presented a critical analysis of the Botswana case of Letsholathebe vs The State where Kirby stated that the doctrine of marital exemption is offensive to modern thinking as it no longer represents the position of the wife in latter-day society and that it needs to be abolished.He shared Kirby's sentiments that the doctrine of spousal exempt is anachronistic but argues that the legislature must lead the way ahead of courts in abolishing it to avoid the problem of retroactive application of criminal law.
"The central claim of this article is that the marital exempt doctrine is an antiquated legal doctrine that sits ill with all notions of human dignity and liberties of women," writes Jonas."However, it will be rather simplistic and mechanical for courts of Botswana, indeed as Kirby sought to do in the Letsholathebe case, to simply hold that the world "unlawful" as used in section 141 of the Penal Code of Botswana is "surplusage" thereby making marital rape an offence. "It is submitted that for the judge to simply remove the word "unlawful" in Section 141 of the Penal Code by way of interpretation would amount to the creation of a new and retroactive criminal liability, thus offending the venerable criminal law principle that there must be no crime or punishment save in accordance with fixed, predetermined law."
