MISSION REPORT
TO
THE REPUBLIC OF BOTSWANA
14 – 18 February, 2005
Abbreviations
AIDS
ADR
APT
AU
BCC
BDP
BOJA
BONASO
BPP
BPS
CA
CEDAW
CEO
CERD
CJ
CKGR
CRC
DCEC
DPS
GNP
HIV
IC
IEC
MP
NACA
NGOs
NHRI
OAU
PLHA
PS
RADP
SADC
SARPO
UNICEF
Acquired Immune Deficiency Syndrome
Alternative Dispute Resolution
Association for the Prevention of Torture
African Union
Botswana Council of Churches
Botswana Democratic Party
Botswana Journalists Association
Botswana National AIDS Organisation
Botswana Peoples’ Party
Botswana Police Service
Court of Appeal
Convention for the Elimination of All Forms of Discrimination
Against Women
Chief Executive Officer
Convention on the Elimination of Racial Discrimination
Chief Justice
Central Kalahari Game Reserve
Convention on the Rights of the Child
Directorate of Corruption and Economic Crimes
Deputy Permanent Secretary
Gross National Product
Human Immunodeficiency Virus
Industrial Court
Independent Electoral Commission
Member of Parliament
National Aids Coordinating Agency
Non –Governmental Organisation
National Human Rights Commission
Organisation for African Unity
People Living with HIV/AIDS.
Permanent Secretary
Remote Area Development Programme
Southern African Development Community
Southern African Regional Police Organisation
United Nations Children’s Fund
Acknowledgement
The African Commission on Human and Peoples’ Rights (ACHPR) wishes to
express its appreciation to the Government of the Republic of Botswana for
accepting the request of the former for a promotional human rights mission to the
country
The African Commission is grateful to the authorities for their hospitality and
support during the period of the mission. A special note of appreciation is
extended to the Chief Justice of the Republic of Botswana, Permanent
Secretaries, Deputy Permanent Secretaries, Directors and senior officials of
government and public institutions who found time to meet with the delegation of
the African Commission in spite of their tight schedule.
It also would like to recognise the openness and frankness of the authorities who
facilitated the work of the delegation. It is also important to acknowledge the
remarkable services of the drivers assigned to the delegation during the period of
the mission.
The African Commission also wishes to thank the staff members who organised
the mission and particularly those who accompanied the delegation throughout
the mission. The Commission is equally grateful to all the NGOs, Independent
Statutory Institutions and other individuals and civil society bodies that found time
to meet with its delegation.
Introduction
The African Commission on Human and People’s Rights (the African
Commission) was established in 1987 by virtue of Article 30 of the African
Charter on Human and Peoples’ Rights (the African Charter). It is a Regional
human rights treaty body charged with the promotion and protection of human
and peoples’ rights.
The African Charter was adopted by the 18th Assembly of Heads of State and
Government of the Organisation of African Unity (OAU) in Nairobi, Kenya on 26
June, 1981. Upon the deposit of the requisite instruments of ratification, the
Charter came into force on 21 October, 1986 and the first members of the African
Commission were elected at the 23rd Assembly of Heads of State and
Government of the OAU in June 1987. The inaugural meeting of the African
Commission was held in Addis Ababa, Ethiopia in November 1987.
Article 45 of the African Charter provides for the mandate of the African
Commission and this includes the promotion and protection of human and
peoples’ rights, interpretation of the African Charter and undertaking any other
task assigned to it by the Assembly of Heads of State and Government.
In terms of Article 45 (1) the promotional mandate shall include inter alia, to
collect documents, undertake studies and researches on African problems in the
field of human and peoples’ rights, organise seminars, symposia and
conferences, disseminate information, encourage national and local institutions
concerned with human and peoples’ rights, and should the case arise, give its
views and make recommendations to Governments; formulate and lay down
principles and rules aimed at solving legal problems relating to human and
peoples rights and fundamental freedoms upon which African Governments may
base their legislation; cooperate with other African and international institutions
concerned with the promotion and protection of human and peoples’ rights.
To execute the mandate in Article 45 (1), the African Commission has initiated a
number of measures, including in particular the allocation of African Countries to
members of the African Commission for them to undertake human rights
promotion and sensitisation on regular bases. These missions are usually
undertaken during the intersession periods of the African Commission and
reports, including recommendations are submitted to the African Commission
during its ordinary sessions for consideration and adoption.
The promotional missions have given the Commission, through the
Commissioners, an opportunity to initiate dialogue with African States and other
stakeholders involved with the promotion and protection of human rights in
Africa.
It is in this light that Commissioner Bahame Tom Nyanduga, Member of the
African Commission and Commissioner responsible for human rights promotion
in Botswana visited the Republic of Botswana from 14 – 18 February 2005.
Commissioner Nyanduga was accompanied to the mission by Robert Eno from
the African Commission’s Secretariat.
The Republic of Botswana - brief history
In 1885 the British government declared Bechuanaland a protectorate, at the
request of local rulers who wished to deter encroachment by Boers from the
Transvaal. It was the British government’s intention that Bechuanaland would
eventually be absorbed into the Union of South Africa then being proposed
principally as a means of appeasing the Afrikaners following their defeat in the
Anglo Boer war. In 1909, however, Bechuanaland refused to join the Union.
The British government continued to regard the protectorate as a temporary
expedient, until it could be handed over to Rhodesia or, after 1910, to the new
Union of South Africa. Hence the administrative capital remained at Mafeking
(Mafikeng), actually outside the protectorate's borders in South Africa, from 1895
until 1964. Investment and administrative development within the territory were
kept to a minimum. It declined into a mere appendage of South Africa, for which
it provided migrant labour and the rail transit route to Rhodesia. Short-lived
attempts to reform administration and to initiate mining and agricultural
development in the 1930s were hotly disputed by leading Tswana chiefs, on the
grounds that they would only enhance colonial control and white settlement. The
territory remained divided into eight largely self-administering 'tribal' reserves,
five white settler farm blocks, and the remainder classified as crown (i.e. state)
lands.
The extent of Bechuanaland Protectorate's subordination to the interests of
South Africa was revealed in 1950. In a case that caused political controversy in
Britain and the Empire, the British government barred Seretse Khama from the
chieftainship of the Ngwato and exiled him for six years. This, as secret
documents have since confirmed, was in order to satisfy the South African
government which objected to Seretse Khama's marriage to a white woman at a
time when racial segregation was being reinforced in South Africa under
apartheid.
From the later 1950s it became clear that Bechuanaland could no longer be
handed over to South Africa, and must be developed towards political and
economic self-sufficiency. The supporters of Seretse Khama began to organize
political movements from 1952 onwards, and there was a nationalist spirit even
among older 'tribal' leaders. A legislative council was eventually set up in 1961
after limited national elections. The Bechuanaland People's Party (BPP) was
founded in 1960, and the Bechuanaland Democratic Party (later Botswana
Democratic Party, BDP) - led by Seretse Khama - in 1962.
After long resistance to constitutional advance before economic development
could pay for it, the British began to push political change in 1964. A new
administrative capital was rapidly built at Gaborone. Bechuanaland became selfgoverning in 1965, under an elected BDP government under Seretse Khama as
Prime Minister. In 1966 the country became the Republic of Botswana, with
Seretse Khama as its first President.
For its first five years of political independence, Botswana remained financially
dependent on Britain to cover the full cost of administration and development.
The planning and execution of economic development took off in 1967-71 after
the discovery of diamonds at Orapa.
Seretse Khama died in July 1980 and was succeeded as president by his deputy
since 1965, Vice-President Quett (aka Sir Ketumile) Masire. In April 1998, Quett
Sir Ketumile Masire retired as president, and was succeeded by his VicePresident Festus Mogae.
Geography
The Republic of Botswana is a landlocked country in the center of Southern
Africa with an area of about (581,700 sq km (224,000 sq miles). The capital is
Gaborone (until 1969 spelt Gaberones, i.e. "Gaborone's" named after Chief
Gaborone), the modern city having been founded in 1964.
The territory is approximately 1000 kilometers from north to south and 1000
kilometers from east to west. Eastern and Southern borders are river-courses
and an old wagon-road; the Western border consists of lines of longitude and
latitude, and the Northern border combines straight line projections between
distant beacons with a river course.
Population structure
With a total population of about 1,561,973 people (July 2004), Botswana is
composed of the following ethnic groups - Tswana (or Setswana) 79%, Kalanga
11%, Basarwa 3%, other, including Kgalagadi and white 7%. The population
structure as at 2004 stood as follows:
0-14 years: 39.2%
•
Male:
•
Female:
310,282
302,452
15-64 years: 56.2%
•
Male:
424,613
•
Female:
452,801
65 years and over: 4.6%
•
Male:
•
Female:
30,896;
40,929
Administration
The country is divided into 9 Administrative districts and four town councils. The
districts include - Central, Ghanzi, Kgalagadi, Kgatleng, Kweneng, Northwest,
Northeast, Southeast, Southern, and the town councils include - Francistown,
Gaborone, Lobatse and Selebi-Pikwe.
Legal System
The legal system of Botswana is a mixture of Romano-Dutch and English
common law. principles. There are also local systems of tribal law and custom in
rural district, which govern everyday disputes and property relations but are
subordinate to statutory law.
The civil legal code of Botswana dates back to 1890, when the Laws of the
Cape Colony were adopted by the colonial state. The Cape Code being
Romano-Dutch as modified by English common law. The civil code has itself
been modified by cases and precedents since 1890, as well as by legislation.
Tswana customary law, as represented by the laws and precedents of the eight
recognised tribes, is also recognised in matters of property, inheritance and
personal dispute arbitration.
System of Government
Botswana is a unitary state with a multi-party parliamentary system, an executive
presidency, and executive machinery dominated by a cabinet of ministers
chaired by the president. Since independence, Botswana has exhibited strong
elements of democracy - accountability of government to the electorate through
regular free elections held every five years, relatively uncorrupt government
bureaucracy accountable to government, government and judicial respect for
human rights and the rule of law, and the social and economic transformation
through underpinning of increased resources allocation by distributed through
government.
Executive branch:
The executive branch of government is headed by the Head of State or chief of
state or the President. The president is both the head of state and head of
government cabinet and appoints cabinet members. President is elected from
among elected members of parliament not by universal suffrage, for a
renewable five-year term. The Vice President is appointed by the president.
Legislature:
The legislature is bicameral consisting of the National Assembly and the House
of Chiefs. The National Assembly has 44 seats, 40 members are directly
elected by popular vote and 4 are appointed by the majority party for a five-year
term. National Assembly elections were last held on 30 October 2004 (next to
be held October 2009). The House of Chiefs a largely advisory 15-member
body consisting of the chiefs of the eight principal tribes, four elected subchiefs, and three members selected by the other 12 members.
Judiciary:
The Judiciary is made up of the High Court; Court of Appeal and Magistrates'
Courts - one in each district. The Customary Court operates at local level.
Constitutional system
The constitutional system is an adaptation of can be said to be the Westminster
model with adaptations. The Constitution provides for a non-racial democracy
which has and an elaborate and justiciable Bill of Rights which guarantees
fundamental rights. It provides for a separation of powers between the executive,
legislature and the judiciary. The president is not directly elected directly by
popular vote but by is the candidate of the party which has majority support in the
National parliament. The judiciary is independent. The Chief Justice presides
over the High Court and the Court of Appeal is made up of judges, some
expatriate, constituted on a part-time basis.
Constitutional power is shared between the President and a popularly elected
National Assembly. Mr. Festus Mogae who, as Vice President became President
upon former president Sir Katumile Masire's resignation in 1998. He continued to
leads the BDP, which has held a majority of seats in the National Assembly
continuously since independence. In October 1998 elections generally regarded
as largely free and fair, the BDP increased its majority in the National Assembly
and elected President Mogae to a second term. The ruling party has 33 out of
the 40 seats in the National Assembly. There is an independent Electoral
Commission and the office of the Ombudsman. The House of Chiefs,
representing the 8 designated principal Batswana tribes and some smaller ones,
has a consultative role especially on traditional matters.
Politics
The ruling party, first elected in 1965 and re-elected at five-yearly intervals since
then, the Botswana Democratic Party (BDP). Its overwhelming majorities in
elections have been based on rural support, stimulated by the benefits of
development programmes usually introduced in the year immediately preceding
an election.
Opposition parties have drawn their strength generally from urban areas. The
BPP was the main but ineffective opposition in the 1960s when urban areas were
small. Since then the Botswana National Front (BNF) has grown in strength,
largely among the working class and younger middle class in the rapidly
expanding urban areas but also including some support among conservatives in
certain rural areas.
The Economy
Botswana has maintained one of the world's highest growth rates since
independence in 1966. Through fiscal discipline and sound management,
Botswana has transformed itself from one of the poorest countries in the world
to a middle-income country with a per capita Gross National Product (GDP) of
$9,000 in 2004. Diamond mining has fueled much of the expansion and
currently accounts for more than one-third of GDP and for nine-tenths of export
earnings. Tourism, subsistence farming, and cattle raising are other key
sectors. On the downside, the government must deal with high rates of
unemployment and poverty. Unemployment officially is 21%, but unofficial
estimates place it closer to 40%. HIV/AIDS infection rates are the highest in the
world and threaten Botswana's impressive economic gains. Long-term
prospects are overshadowed by the expected leveling off in diamond mining
production.
International human rights obligations
The Republic of Botswana is a state party to the African Charter on Human and
Peoples Rights. It ratified the African Charter on 17 July 1986. Since then,
however, Botswana has never submitted a state report in terms of the provisions
of article 62 of the Charter.
Botswana is also party to the following international human rights instruments:
The OAU Convention Governing the Specific Aspects of Refugee problems in
Africa, the African Charter on the Rights and Welfare of the African Child,
International Covenant on Economic Social and Cultural Rights, International
Covenant on Civil and Political Rights, 1st Optional Protocol to the International
Covenant on Civil and Political Rights, Convention on the Elimination of all forms
of Racial Discrimination, Convention on Elimination of all forms of Discrimination
Against Women, Convention Against Torture, Convention on the Right of the
Child.
It is a member of the United Nations, the Non-aligned Movement, the
Commonwealth, African Union (AU), and the Southern African Development
Community (SADC). The secretariat of SADC is based in Gaborone, the capital
of Botswana.
Preparation of the Promotional Mission
The Secretariat of the African Commission began exchanging Notes Verbale with
the Ministry of Foreign Affairs and International Cooperation regarding the
mission from February 2004. On two occasions, March and August 2004, the
Government of the Republic of Botswana accepted the requests for the mission
but the mission could not be undertaken due to unavoidable other circumstances.
In March 2004, the Commissioner Bahame Tom Nyanduga who was to
undertake the mission the Botswana was required to undertake an urgent
mission to the Darfur Region of The Sudan. Because of the urgency of the Darfur
Crisis at the time, the African Commission decided to send a mission to the
region. The proposed mission to Botswana was therefore postponed at short
notice.
Unfortunately, upon arrival in The Sudan, the Darfur mission did not materialize
due to reasons beyond the control of both parties re it was realized that there had
been no appropriate authorization from the Sudanese Government to undertake
the mission to Darfur. Regrettably, the mission to Botswana had already been
postponed to August 2004.
Since the mission to Darfur could not materialize in March 2004, and in view of
the fact that the situation in Darfur continued to deteriorate, the African
Commission pursued negotiations with the Sudanese Government and a mission
to the country was duly authorized for July 2004. Considering the allegations of
large scale human right violation in the Darfur Region, the Commission decided
to increase the number of Commissioners to undertake the mission and
extended the number of days for the mission. Because of this “increase”, the
Commission’s budget was seriously affected and by August 2004, the
Commission could not undertake the August mission to Botswana due to
inadequate funds. Yet again the mission to Botswana was postponed.
On 29 November 2004 a Note Verbale was sent to the Botswana Government
requesting for another mission and in January 2005 the Botswana Government
accepted the Commission’s request for the mission. By Note Verbale dated 11
January, the Government also requested the African Commission to facilitate a
two day workshop on State Reporting organised by the Botswana Ministry of
Foreign Affairs and International Cooperation.
In consultation with the Secretariat of the African Commission, the Botswana
Foreign Ministry prepared a draft programme for the visit to Botswana and by
Note Verbale dated 11 February 2005, the Ministry forwarded to the Secretariat
the draft programme for the Commission’s comments.
Mr. Robert Wundeh Eno, Legal Officer at the Secretariat of the Commission,
assisted Commissioner Nyanduga during the mission.
The Mission started with a Courtesy call visit to the Permanent Secretary in the
Office of the President and concluded with a Press Conference held by the
leader of the delegation, Commissioner, Bahame Tom Nyanduga.
Courtesy call Visit to the Office of the Permanent Secretary (PS) in the
office of the President
On 14 February 2005, the delegation of the African Commission paid a courtesy
call visit to the Permanent Secretary in the office of the President .The delegation
was received by the Deputy Permanent Secretary, (DPS) Mr. Bergsman Kagiso
Sentle who apologized on behalf of the P.S. who was unavoidably absent.
After introducing the delegation, Commissioner Bahame Tom Nyanduga, leader
of the delegation and the African Commission’s Member responsible for human
rights promotion in the Republic of Botswana apologized to the DPS on behalf of
the African Commission, and on his own behalf, for not being able to undertake
the mission on two previous occasions - first in March and later in August 2004.
He informed the DPS why the mission had to be postponed twice.
The Commissioner expressed appreciation to the Government of Botswana that
in spite the two postponements, the Government had responded positively to the
African Commission’s request for another mission.
The Commissioner then requested amendments to the Programme of the
delegation to include among others, meetings with more Non-Governmental
Organisations (NGOs), the Leader of the Opposition, the Speaker of the National
Assembly and the Coordinator of National Aids Coordinating Agency (NACA).
The Commissioner informed the DPS that the main purpose of the mission was
to among other things:
-
make a follow-up to the mission undertaken by Commissioner Barney
Pityana in April 2001;
-
engage the Botswana authorities and other stakeholders to understand
the human rights situation in the country;
-
to fulfill part of the African Commission’s promotional mandate under
Article 45(1) of the African charter on Human and People’s Rights;
-
to understand the extent to which Botswana has incorporated the
provisions of the Charter and comply with its obligations under Article 1
thereof;
-
to encourage Botswana to ratify those African human rights instruments
she had not ratified;
-
to engage the Government on the implementation of the
recommendations of the African Commission made in the Modise Case.
He noted with respect to the latter objective that due to the inadequate follow-up
mechanisms of the African human rights system, Commissioners take it upon
themselves during promotional missions to engage Governments on any
Recommendations, Resolutions and Declarations the African Commission might
have adopted or made with respect to a State Party or States Parties to the
African Charter.
To this end, the Commissioner informed the DPS that the African Commission
would like to know the measures that the Botswana Government had taken to
implement the African Commission’s recommendations on Communication
97/1993-Modise vs Botswana.
The Commissioner informed the DPS that the African Commission would also be
keen to know among other things;
-
-
if human rights education had been introduced in the school curriculum;
whether the officials dealing with the administration of justice such as
judges, the police, prison authorities understand human rights;
the measures taken by the Government of Botswana to address the high
rate of HIV/AIDS infection and in particular, the specific measures put in
place to protect the rights of People Living with Aids (PLHA). In this
regard, the Commissioner expressed on behalf of the African Commission
solidarity with the Botswana people on the high level of HIV/AIDS
infection;
the measures taken to address the rights of marginalized groups or
communities, including indigenous peoples.
The Commissioner noted with regards to the indigenous populations that due to
the competing interests between the State and the indigenous communities, such
as the extraction of resources, tourism, etc, it had become necessary for the
African Commission to know how Governments balance such interests without
violating the rights of the indigenous people.
The Commissioner noted that it had been brought to the attention of the
delegation that there was a case brought by the Basarwa Indigenous Community
dealing with the right to land. However, since the case was still in court at the
time of the mission, the Commissioner thought it would be pre-judicial to discuss
its merits as it might be submitted to the African Commission at a later stage.
The Commissioner nonetheless informed the DPS that the African Commission
had undertaken a study on the question of Indigenous Populations and
Communities in Africa and a Concept Framework Paper on this matter had been
adopted by the Commission. The paper would be published and distributed to all
States Parties to the African Charter for their input. He also noted that the
Commission had established a Working Group on Indigenous Populations and
Communities to undertake further research and collect documentation on the
protection of the rights of indigenous populations. The Commissioner took the
opportunity to inform the DPS that the Working Group will be visiting Botswana
during the Second Quarter of the year.
Commissioner Nyanduga also informed the DPS that the African Commission
had received reports about 8 Namibian refugees from the Caprivi Region who
were deported to Namibia and the Commission would like to know the
circumstances under which they were deported.
The Commissioner also raised with the DPS the question of corporal punishment
and sought explanation as to its usage and its compatibility with Botswana’s
obligation under the African Charter.
The DPS was also informed that one of the ways in which the Commission
engages with States was through the State Reporting Procedure as provided for
under Article 62 of the African Charter. He noted that since Botswana ratified the
Charter in 1986 she had not submitted any report as required under Article 62,
and as such had nine (9) overdue reports.
The Commissioner however, noted the commitment made by the Botswana
Delegate during the 36th Ordinary Session of the African Commission that the
Government of Botswana was in the process of preparing its Initial Report to the
African Commission. The Commissioner said that he was pleased to have been
requested to facilitate a workshop to train officials responsible for the preparation
of the State Report.
He also informed the DPS about the Protocol to the African Charter on Human
and Peoples’ Rights on the establishment of an African Court on Human and
People’s Rights (Protocol on the African Human Rights Court) which came into
force on the 25th of January 2004 and the Protocol on the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa (Protocol on the
Rights of Women) adopted at the Second Summit of the AU in Maputo,
Mozambique in July 2003.
The Commissioner noted that Botswana had not ratified either of the Protocols
and urged the DPS to advise the relevant authorities take the necessary
measures to ensure their ratification.
With regards to the Protocol on the African Court on Human and Peoples’ Rights,
the Commissioner urged the DPS that in ratifying it, the State should also make
the Declaration under Article 34(6) of the said Protocol.
The Commissioner also brought to the attention of the DPS the Decision of the
Assembly of the AU at its Third Summit to merge the African Court on Human
and People’s Rights and the African Court of Justice provided for under the
Constitutive Act of the African Union.
The Commissioner informed the DPS that representations have been made to
the AU to reconsider this decision. Thus, while waiting for the final decision of the
AU, the Commissioner urged the Government of Botswana to ratify not only the
Protocol on the Human Rights Court but also the Protocol on the Court of
Justice.
The Commissioner also encouraged the Government to consider the
establishment of a National Human Rights Commission (NHRI) or upgrade the
institution of Ombudsman to an NHRI.
The Commissioner noted that Botswana still retained the death penalty and that
two cases had been brought to the African Commission against Botswana with
respect to the death penalty. The first communication – Interights et al (on
behalf of Mariette Sonjaleen Bosch) / Botswana, communication 240/2001,
was concluded at the 33rd Ordinary Session of the Commission in May 2003, and
the second communication Brian Spilg and Unoda Mack (on behalf of
Lehlohonolo Bernard Kobedi)/ Botswana, Communication 277/2003, was
still being considered by the African Commission. He said because there was a
communication before the African Commission on the matter, he would not
discuss the death penalty in substance.
He said he would however like to inform the DPS that the African Commission
adopted a Resolution at its 26th ordinary Session held in Kigali Rwanda in
November 1999 calling on all States Parties to observe a Moratorium on the
Death Penalty. He also said that the Commission was in the process of debating
the question of the death penalty in Africa with a view to coming up with a final
position on the matter which will be presented to all Member States of the AU for
their input.
In response to the Commissioner’s remarks, the DPS started by apologizing on
behalf of the Permanent Secretary who was unavoidably absent. He said he was
happy to receive the delegation of the African Commission and informed the
delegation that the Office of the President was the lead department coordinating
issues of human rights in the country. He assured the delegation that he had
requested Government authorities to be open and provide whatever information
is requested to ensure the success of the mission.
The DPS informed the delegation that he was sitting in for the PS simply to
receive the delegation and was going to inform the PS about all the issues that
had been raised and the PS will respond to them on 16 February 2005 when the
delegation was scheduled to see her
The DPS said he would however like to make certain clarifications especially on
illegal immigrants, corporal punishment and refugees in Botswana.
On illegal immigrants, the DPS noted that many foreigners especially
Zimbabweans entered Botswana as economic migrants and did not meet the
criteria of refugees. He informed the delegation that those foreigners who
entered Botswana through the legal check points and presented authentic
documentation were processed, and if they had a good case, were granted
asylum. However, those that entered the country illegally were rounded up in
police raids called clean up campaigns and detained at a detention facility in
Francis town pending deportation to their countries of origin. He emphasized that
there was no punishment meted out to illegal immigrants, save for detention.
Regarding corporal punishment the DPS informed the delegation that it was part
of the laws of Botswana and that it had support from the majority of the people.
He said it was not correct to say that Zimbabweans were whipped because they
were illegal immigrants. Rather, those who were whipped had been involved in
criminal activities that attracted corporal punishment as prescribed in the laws of
Botswana. The DPS noted further that many people prefer corporal punishment
than prison sentences.
Meeting with the Ombudsman of Botswana
The delegation met the Ombudsman of Botswana, Mr Lethebe A Maine on the
14 February 2005 at the Headquarters of the Ombudsman in Gaborone.
After explaining to the Ombudsman the purpose of the mission to Botswana, the
Commissioner went further to brief the Ombudsman on the adoption and coming
into force of the African Charter, its distinctive features, weaknesses; the
establishment of the African Commission, its composition, meetings, mandate
with particular emphasis to the promotional and protective mandates, including
the examination of communications and the State Reporting Procedure.
The Commissioner also briefed the Ombudsman on the measures that the AU
had taken to enhance the African human rights system, in particular through the
adoption of protocols to the African Charter. In this regard, the Commissioner
explained the process leading to the adoption of the Protocol on the
establishment of the African Court on Human and Peoples’ Rights and the
Protocol on the Rights of Women in Africa, noting that the former came into force
on 25 January 2004 while the latter was yet to come into force.
He noted with regards to the protocol of the human rights court that even though
it had come into force by virtue of the required number of ratifications being
obtained, its establishment had been delayed following the decision of the AU
Assembly in July 2004 to merge the African Court on Human and Peoples’
Rights and the African Court of Justice provided for under the Constitutive Act of
the AU.
The Commissioner informed the Ombudsman that as an institution dealing with
the promotion and protection of human rights, the African Commission would like
to know the role of the Ombudsman in this regard, in particular, in ensuring the
enjoyment of the rights of women, the enjoyment of economic, social and cultural
rights, the treatment of vulnerable and marginalized groups such as indigenous
peoples, whether the death penalty is the most appropriate form of punishment in
an open and democratic society where human rights and fundamental freedoms
should be the watch words.
In his response, the Ombudsman welcomed the initiative of the African
Commission to visit Botswana and expressed the wish that the Commission’s
mission would help the country to adopt an inclusive process in the promotion
and protection of human rights.
He informed the delegation that the Ombudsman is a Public Institution
constituting what he referred to as an Extra-Ministerial Department.
He said in terms of the Ombudsman Act of 1995, the Ombudsman investigates
complaints of maladministration in public institutions. After investigation, he
makes recommendations to Government for remedial action.
The Ombudsman has no executive powers and as such made only
recommendations to Government where he found infractions of the law. In terms
of the Section 3 (3) (b) of the Act, the Ombudsman “shall not in any case be
precluded from conducting an investigation in respect of any matter by reason
only that it is open to the aggrieved person to apply to the High Court for redress
under section 18 of the Constitution (which relates to redress for contravention of
the provisions for the protection of fundamental rights and freedoms)”. The
Ombudsman interpreted this to mean that he had the mandate to deal with
human rights issues. As such the Ombudsman has been receiving complaints of
human rights violations especially from prisoners.
Although not specifically stated in the Act, the Ombudsman adopts measures
such as arbitration, conciliation and reconciliation in dealing with complaints.
The Ombudsman noted that there had been very little complaints of human rights
violation submitted to him and attributed this to the good human rights record of
the country.
He informed the delegation that he had been encouraging the Government to
establish a NHRI or give the Ombudsman express powers to deal with human
rights matters.
On the question of the death penalty, the Ombudsman informed the delegation
that a Commission was set up to collect public views on the issue and there was
overwhelming support for the retention of the death penalty. He noted however
that there was always a danger of subjecting such sensitive issues as the death
penalty to public opinion because the public might not appreciate the new human
rights thinking. The Ombudsman informed the delegation that the death penalty
was reserved only for the most heinous crimes.
The Commissioner requested the Ombudsman to explain his mandate with
respect to the right to freedom of association, in particular trade union rights. The
Ombudsman noted that any complaint brought against a public institution or
government department can be handled by his office.
The Commissioner also wanted to know how the Ombudsman measures the
degree of compliance with his recommendations. The Ombudsman informed the
Commissioner that most of the complaints were resolved amicably and that there
was about 95% compliance with the outcome of the amicable settlement.
However, where the parties couldn’t agree, an investigation was instituted and
recommendations made to the relevant Government Department.
The Ombudsman presents an Annual Report to the President and this is tabled
in Parliament through the Minister of Presidential Affairs in Parliament. The Act
does not however, compel the Minister to table the Report to Parliament.
The Ombudsman is appointed for a renewable four year term by the President in
consultation with the Leader of Opposition but not ratified by Parliament. The
Ombudsman is funded by the Government. This has led to criticisms that the
Ombudsman cannot be independent.
According to the Ombudsman, in order to allay fears of lack of impartiality, the
security of tenure should be amended. He suggested that the Ombudsman
should be appointed for a fixed term of 7 or 8 years. He thought a four year
tenure was too short and argued that the appointment should be made by
Executive and should only be confirmed by Parliament.
The Ombudsman had a staff strength of 35 amongst whom were nine
investigative officers. According to the Ombudsman, the institution was not well
known even though it had been involved in public awareness campaigns in
prisons and through the radio.
Meeting with NGOs at Ditshwanelo
On 15 February 2005, the delegation met with the NGO community at the
premises of the Botswana Centre for Human Rights, (Ditshwanelo). The African
Commission appreciates the initiative of Ditshwanelo who brought together these
NGOs to this meeting.
The Commissioner briefed the NGOs on the purpose of the mission and noted
that as the foot soldiers on the ground and key partners in the realization of the
mandate of the African Commission, it was necessary to meet with them to
exchange views and learn from them on the human rights situation in the
country. The Commissioner also noted that NGOs are the main sources of
information on the human rights situation in any country.
The Commissioner encouraged the NGOs to lobby the Government to ratify the
protocols on the human rights court and on the rights for women in Africa, and
with regards to the former, suggested that NGOs should also ensure that the
Government makes the Declaration under Article 34(6).
The Commissioner explained why the African Court on Human and Peoples’
Rights had not been established in spite the entry into force of the protocol. He
noted that the AU decision of July 2004 to merge the Court on Human and
Peoples’ Rights and the Court of Justice, NGOs should lobby for the ratification
of both the protocol on the Human Rights Court and the protocol on the Court of
Justice, so that should July 2004 decision stand, both courts could be
established without delay.
The Commissioner also urged those NGOs that had not already done so to apply
for observer status with the African Commission, adding that the status had
added significance when it comes to the submission of communications/cases to
the court on human rights as the protocol provides under Article 5 (c) that “the
Court may entitle relevant Non Governmental Organizations (NGOs) with
observer status before the Commission, and individuals to institute cases directly
before it, in accordance with article 34 (6) of this Protocol”.
The Commissioner also informed the NGOs that as part of the promotional
mission, the delegation would be facilitating a two day workshop on State
Reporting. This, he added, was at the request of the Government. The
Commissioner informed the NGOs that State Reporting was one of the ways in
which the Commission engages states in constructive dialogue on the human
rights situation in their countries.
He noted that Botswana ratified the African Charter in 1986 and in terms of
Article 62 of the Charter, was supposed to have submitted at least nine reports to
the Commission. The non submission of the reports, the Commissioner noted,
did not mean the Government was disrespecting the African Commission but
rather it had been observed that failure to submit was due to several constraints.
The Commissioner noted that the government had initiated the process and
hoped that this would lead to a continuous process of reporting on the part of the
State and strengthen the cooperation between Botswana and the African
Commission in the promotion and protection of human rights in the country.
The Commissioner urged the NGOs to be involved in the State Reporting
process so that it did not only reflect the views of the Government but the state
as a whole. He also noted that apart from taking part in the preparation of State
Reports, NGOs could also prepare and submit Shadow Reports to the African
Commission.
The Commissioner also explained the protective mandate of the African
Commission and in particular the communication procedure noting that one way
in which NGOs can contribute to the work of the Commission was by bringing
communications to the Commission in accordance with the provisions of the
Charter.
In their response, the NGOs raised a number of issues regarding the preparation
of the State Report, freedom of expression, HIV/AIDS, refugees and asylum
seekers, the communication procedure, access to justice, and the human rights
situation in Zimbabwe.
Ditshwanelo wanted to know whether it was proper for the African Commission’s
delegation to be meeting other stakeholders such as NGOs in the presence of
Government officials.
In his response, the Commissioner differentiated between a promotional mission
which is interactive and exchange of opinion and a fact-finding mission on
allegations of human rights violations which are more sensitive. He said
generally, in the latter, state officials were not allowed to sit in the meetings of the
Commission since it was an investigative mission and there was need to
preserve the security of those who appeared before the Commission and to allow
people to speak freely without fear of victimization.
With regards to promotional missions there was no hard rule regarding the
presence of Government officials in meetings. Where however, parties did not
want state officials to be present, they were at liberty to request that they leave
and the Commission will accordingly request that they do.
On the issue of State Reporting, NGOs said that the Government had been
consulting civil society in the preparation of its State Reports as evidenced during
the preparation of the Report to the Committee on the Elimination of Racial
Discrimination (CERD) in 2002. NGOs hoped this consultation would continue
with the preparation of the Report to the African Commission and subsequent
Reports.
The NGOs expressed the view that for the Report to be called a State Report,
and not a Government Report, consultations should not be limited to Government
and NGOs, opposition political parties and other interest and pressure groups
should also take part.
On freedom of expression and the press, the Botswana Journalist Association
(BOJA) decried the near monopoly that the state media enjoyed in view of the
resources they had. According to the BOJA, private media organizations found it
difficult to operate due to resource constraints while state-funded media operated
without difficulties. BOJA wanted to know how the Commission could intervene to
ensure the Government distanced itself from public media.
The Commissioner indicated that the Commission was guided by the African
Charter and Government policies and activities were measured against the
provisions of the Charter to see whether by virtue of those policies the provisions
of the Charter had been violated. In this case the Commission would like to
determine whether by exercising monopoly over the media, government was
impeding the enjoyment of the right to information or freedom of the press.
The Commissioner informed the NGOs that at its 36th Ordinary Session that took
place from 23rd November to 7th December 2004 in Dakar, Senegal, the African
Commission appointed one of its Members as Special Rapporteur on Freedom of
Expression in Africa. He noted that the Special Rapporteur would study such and
related issues and make appropriate recommendations to the Commission for
necessary action. He encouraged the NGOs to establish contact with the Special
Rapporteur on this and other matters they perceived was hampering the effective
enjoyment of the right to freedom of expression in Botswana.
On HIV/AIDS, the Botswana National AIDS Organisation (BONASO) wanted to
know whether the Commission had developed guidelines or policies to guide
states on their policies to curb the pandemic. The Commissioner noted that the
Commission had adopted a number of recommendations, resolutions and
declarations dealing with various thematic issues including HIV/AIDS, torture, fair
trial, prisons, etc. He said the African Union had held a special session on
HIV/AIDS.
On the question of illegal immigrants and refugees, the Botswana Council of
Churches (BCC) said that the Government was reluctant to recognize the fact
that most Zimbabweans, especially journalists who had fled into Botswana were
genuinely fleeing from persecution.
The Commissioner noted that the African Commission is guided in this regard by
Article 12 of the African Charter and the 1969 OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa which compliments the 1951 UN
Convention on Refugees. He noted that the key principle was the determination
of the status of refugees which is done by the state. In determining the status,
there has to be fear of persecution. The international community does not
recognize economic migrants as refugees even if their rights were violated in the
host state.
On the question of access to justice, Ditshwanelo informed the delegation about
the lack of Legal Aid. The organization noted that about 30% of the people in
Botswana live below the poverty line, as such many people did not have the
means to recruit legal counsel. The state provided legal representation only for
pro duo cases, but since renumeration was very little, qualified lawyers were
usually not interested to represent suspects.
On Zimbabwe, the NGOs wanted to know what the African Commission was
doing with the human rights situation in the country. They claimed that the effects
of the situation in Zimbabwe was already being felt in Botswana. Many
Zimbabweans had fled their country into Botswana.
The Commissioner informed the NGOs that the Commission undertook a factfinding mission to Zimbabwe in 2002 to investigate allegations of human rights
violations in the country. The Report of the mission could not be adopted by the
AU Assembly at its Third Summit in July 2004 because the Heads of State and
Government felt the Government of Zimbabwe had not made its observations on
the Report. Zimbabwe submitted its observations in November 2004 and they
were incorporated into the Commission’s 17th Annual Activity Report submitted to
the 4th AU Summit in Abuja, Nigeria in January 2005. The AU Assembly adopted
the Report and authorized its publication.
The Commissioner informed the NGOs further that the Commission was seized
with a number of communications against Zimbabwe from NGOs and individuals
and it was still considering them.
Meeting with the Ministry of Labour and Home Affairs (15th February 2005)
The delegation met with authorities from the Ministry of Labour and Home Affairs
on 15 February 2005.
After introducing the delegation of the Commission, the Commissioner briefed
the officials on the objectives of the mission to Botswana. He also briefed them
on the mandate of the Commission.
He said the delegation would like to know how the Ministry has mainstreamed
the promotion and protection of human rights in its mandate, in particular to
understand the enjoyment of the right to collective bargaining especially following
the Debswana Case.
The Commissioner also urged the officials to discuss the ratification of the
Protocol on the establishment of the African Court on Human and Peoples’
Rights and the Protocol on the Rights of Women in Africa.
In his response, the DPS informed the Commissioner that the Ministry of Labour
and Home Affairs was one of the biggest Ministries in the country with three main
departments:
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Department of Labour and Social Security;
Department of Prisons; and
Department of Gender.
The Director of Labour and Social Security informed the delegation that the
Department administered labour laws and provided labour administrative
services through the main pieces of legislation, namely:
- the Employment Act Cap. 47 of 2001 which provides for basic conditions of
employment;
- Employment (Amendment) Act, 2003 – Act. 14 of 2004;
- the Trade Unions and Employers’ Organisation Act, Cap 48 of 2001 which
regulates the registration and de-registration of these organizations. This Act also
regulates industrial actions such as strikes and lockouts;
- Trade Union and Employers’ Organisation (Amendment) Act, 2003 – Act No. 16
of 2004; and
- Trade Disputes Act, 2003 - Act No. 15 of 2004.
He informed the delegation that strikes were not outlawed but must be
undertaken after the fulfillment of certain requirements. He also noted that
industrial disputes were dealt with by the Industrial Court. (IC). If the Court
declared a strike illegal, the employer was at liberty to take any action he/she
deemed necessary including dismissal. The decision of the IC could be appealed
to the Court of Appeal (CA).
On the Debswana Case, the Director noted that the matter was taken to the IC
by the employer and the Court declared the strike illegal. The decision of the IC
was appealed to the CA and the latter upheld the decision. He also indicated that
the IC had the same status as the High Court.
The Commissioner of Prisons on his part informed the delegation that there were
23 prisons in the country with an original capacity of 3910 but were holding 6146
inmates. He noted that there were only two prisons operating below capacity due
to shortage of water. Inmates were taught skills such as carpentry, bricklaying,
agriculture, character moulding, moral instructions, etc.
The Director of the Department of Gender informed the delegation that Botswana
had made great strides in enhancing the enjoyment of the rights of women. She
said a number of laws had been amended to bring them in line with international
standards including the Citizenship Amendment Act (1995), the De-registration
Amendment Act (1996), the Public Service Act (2001), and the Marital Power
Act.
She noted that Botswana had ratified the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) but was yet to ratify the
protocol thereto. She noted further that Botswana had signed the SADC
Declaration on the Equality of Women and Men and was taking measures to deal
with passion killings and was also at the initial stages of developing a law on
Domestic Violence.
Meeting at the Ministry of Foreign Affairs and International Cooperation –
15th February 2005.
The delegation of the African Commission met with senior officials from the
Ministry of Foreign Affairs and International Cooperation on 15/02/05 at the
premises of the Ministry. Among the officials present were the Director of Political
Affairs and the Permanent Representative of Botswana to the African Union.
After introducing the delegation, the Commissioner apologized for not being able
to undertake the mission on two previous occasions in March and August 2004.
He indicated that the Commission was grateful that the Government still
accepted the mission in spite the two postponements.
He informed the Permanent Secretary of the Ministry, Mr. E.S Mpofu, who
presided over the meeting that the promotional mission was to engage in
dialogue with the Government and other stakeholders in the promotion and the
protection of human rights in the country. He said one area of dialogue was on
the State’s obligation under Article 62 of the African Charter requiring States to
submit periodic reports to the African Commission.
The Commissioner noted that at the 36th Ordinary Session of the Commission
the Botswana delegate to the session indicated that the government was in the
process of preparing its report to the Commission. The Commissioner said the
Commission was pleased to be associated with the process through facilitating in
a workshop to that effect.
Commissioner Nyanduga also urged the Permanent Secretary on the need for
the Botswana Government to ratify the Protocols on the African Human Rights
Court, and on the Rights of Women in Africa. He also informed the PS, that in
view of the AU decision to merge the African Human Rights Court with the
African Court of Justice, it would be prudent to ensure the ratification of both
protocols establishing the two courts. With respect to the Protocol on the African
Human Rights Court, the Commissioner urged the PS that in ratifying it, the
Government should also made the declaration under Article 34 (6).
Commissioner Nyanduga informed the PS that the promotional mission was an
experience sharing exercise. That the Commission wanted to learn from the
Government the extent to which human rights, especially those enshrined in the
African Charter are observed in Botswana. He said the Commission was also
keen to understand the problem associated with the much publicized relocation
of the Basarwa community. He noted that since the matter was in court the PS
might not want to discuss the merits, but the Commission was interested in
understanding the issue.
The Commissioner also informed the PS that the Commission had received two
complaints against Botswana on the question of the death penalty and would like
to draw the attention of the Government to the Commission’s resolution urging
Member States of the African Union to observe a moratorium on the death
penalty. He said the African Commission was discussing the death penalty in a
broader scale and its position would be made known to all Member States.
In his response, the PS thanked the Commission for the mission and noted that it
was part of the Government way of cooperating with African institutions.
He said with regards to the death penalty that a Commission had been
established that went throughout the country to get the opinion of the public on
the matter. The result was that an overwhelming majority of the people wanted
the death penalty to be retained. He said if a Commission were to be established
on the question of corporal punishment, he was sure the result would be the
same.
The Commissioner noted that maybe there should be public awareness on the
human rights implication of the death penalty and that if the public were informed,
peoples’ thinking on the death penalty could change. The PS noted in reply that
the people who should start with the attitudinal change must be the leaders, the
politicians. He said if politicians make public declarations in support of the death
penalty it impacts a lot on the thinking of the general public.
Regarding the relocation of the Basarwa from the CKGR, the PS informed the
delegation that the Basarwa were not coerced to move. He said that the
Government persuaded them, and the majority of the people moved voluntarily
because of the incentives provided by Government. He said out of a population
of 4,000, only about 17 – 57 people were resisting relocation and this was being
perpetrated by misconception orchestrated by foreign organizations. He said that
the problem involved only those who had squandered the compensation the
Government had given them and then started claiming that life was tough where
they were relocated to.
He noted that it was wrong to say that they had been denied the benefits from
the Game Reserve, adding that people who were nearer to areas of natural
resources benefit more from those resources. According to the PS, it was not
correct to claim there were people indigenous to Africa whereas all Africans are
indigenous.
The Commissioner explained that the terminology has been accepted at the
United Nations and represents communities of hunter gatherers and
pastoralists…
The PS concluded by saying that the Government is open minded and welcomed
anyone who could render whatever assistance to look for a just solution to the
matter. He advised the delegation to pursue the issue when it meets the Ministry
in charge of Tribal Administration and the Remote Area Development
Programme. He said further that the Government did not agree with those who
wanted to retain the Basarwa in primitive conditions for the benefit of the curiosity
of tourists or social anthropologists. He said the Basarwas deserve the benefits
of social and economic development just like any other Mswana and suggested
that many Batswana had lived under similar destitute conditions before
independence and before the discovery of diamond. The Government had a duty
to uplist the Basarwa from such conditions.
Meeting at the Ministry of Local Government
After welcoming the delegation, the Deputy Permanent Secretary of the Ministry,
Mrs. Kodise A Selotlegrng apologized for the unavoidable absence of the
Permanent Secretary. She introduced the other officials who included the
Director of Tribal Administration, Mrs. Katsile D Rathedi, the Coordinator of the
Remote Area Development Programme (RADP), Mrs. Galaletsang Maakwe and
the Deputy Commissioner in the Department of Social Services, Mrs.
Khutsafalo O Mogotsi. She then invited each of them to brief the delegation on
the activities of their respective Departments and measures put in place to
ensure promotion and protection of human rights.
The Director of Tribal Administration informed the delegation that tribal
administration procedures vary from one tribe or region to the other. However,
they must all be consistent with the basic law of the land- the constitution.
The Local Administration was made up of the Local Chief, Customary Courts and
Local Police. Each Customary Court dealt with cases in terms of the customs of
that tribe or region. An accused person however had the option to be tried by the
Customary Court or by a Magistrate Court.
The jurisdiction of a Customary Court extends to all residents in the region
irrespective of whether the accused is a citizen or resident from that region. The
Customary Court is presided over by a Paramount Chief assisted by advisers.
Decisions of the Customary Court could be appealed to the Customary Court of
Appeal presided over by the President of the Customary Court of Appeal.
According to Mrs. Katsile D Rathedi, corporal punishment was usually
administered at the Customary Court level. The Director indicated further that
there was a cultural belief that corporal punishment was more effective than
imprisonment. She noted further that corporal punishment was preferred to
imprisonment by most offenders because instead of depriving a person of their
liberty and ability to work they were lashed and released immediately so they
could continue with their daily activities. She also indicated that corporal
punishment served to reduce congestion in prison. It was also pointed out that
many people opted for corporal punishment than go to prison because of the
stigma usually associated with imprisonment.
Corporal punishment was administered by the Local Police in the Office of the
Local Chief and not in public. It was applied on the buttocks and only to men
between the ages of 16 and 40. It was not applied on women, although there was
debate going on in the country that it should be extended to women, because
women are imprisoned instead of being whipped.
The Commissioner wanted to know why Community Service was not preferred
instead of corporal punishment if the aim was not to deprive the offender of their
liberty and means of livelihood or congest the prisons. The Commissioner stated
further that in a communication from Sudan, the Commission had declared
corporal punishment as inhuman and degrading punishment. The Director
indicated that Community Service had been tried before and there weren’t
enough officials to supervise offenders under the Community Service Scheme.
She noted that the last time Community Service was adopted offenders failed to
honor their obligations and did not complete their sentences.
The Deputy Commissioner of the Department of Social Services indicated that
the Government had ratified the Convention on the Rights of the Child (CRC) in
1998 and in 2004, submitted its first report to the Committee on the Rights of the
Child. She noted that even though the Government was still waiting for the
Concluding Observations of the Committee there weren’t many issues raised
during the presentation and consideration of the report.
Mrs. Khutsafalo O Mogotsi said that Botswana had also ratified the African
Charter on the Rights and Welfare of the Child of 1991 but was yet to submit a
report to the Committee of Experts. She indicated that the Botswana 1981 Child
Rights Act was under review to bring it in line with international standards. With
the assistance from the United Nations Children Fund (UNICEF), a human rights
perspective had been injected into the revision of the Act.
Other social services included the establishment in 2002 of the School of
Industry for the rehabilitation of young offenders. There were about 100 young
offenders in the School of industry. The School provided the young offenders
with basic skills such as carpentry and bricklaying. The offenders were allowed
home visits regularly under supervision by social workers.
Other institutions established to protect the rights of children included the
Children’s Court for Young Offenders and the SOS Children’s Village to assist
children in need of care. Due to the large number of children orphaned by the
HIV/AIDS pandemic, the SOS Children’s Village was full and the Department of
Social Services had opened another institution to receive children in need of
assistance.
The Department also provided children with the opportunity to participate in the
development of laws affecting their welfare. Apart from encouraging their
participation in the commemoration of International Children Days, and the Day
of the African Child (16th June), the Department had established the Children’s
Forum to look at new legislation on the rights of the child. There was also the
Youth Parliament and the National Children’s Council which discussed issues
affecting children.
The Department also had a social assistance programme for the poor called The
Food Basket. Under this programme, persons in need of help including orphans
up to the age of 18 were given basket of food items and financial assistance for a
specific period of time.
Social security in the form of old age pension was also provided to persons
above the age of 65. The sum of 161 pula (an equivalent of US $ 40) per month
was paid as pension benefit. Financial assistance was also given to World War
Veterans on a monthly basis. Where the Veteran has died, the surviving spouse
and children below the age of 21 would receive the benefit.
The Department of Social Services also operated a Community Home-based
Care which rendered assistance to people who were terminally ill. The terminally
ill were given the food basket and financial assistance and their children were
also taken care of if they were in need of assistance.
The Ministry of Local Government also had a Department responsible for a
programme called the Remote Area Development Programme (RADP). This
programme was to assist persons who lived outside areas not reached by
Government assistance services.
The programme started in the 1970s as the Basarwa Development Programme.
With the discovery of more underprivileged groups, the programme was
extended to cover all under privileged communities.
Under Botswana law, a group of 500 people qualified to be settled under the
RADP but this number was reduced to 250 to bring social services closer to the
people.
With specific reference to the Basarwa community relocated from the Central
Kalahari Game Reserve (CKGR) the Commissioner wanted to know why they
were relocated, how effective the relocation programme had been and why some
of them were resisting relocation while others were returning to the game
reserve.
The Coordinator of the RADP, Mrs. Galaletsang Maakwe, traced the history of
the Basarwa in the CKGR and informed the delegation of the African
Commission that the CKGR was not the original home of the Basarwa people.
She indicated that the Basarwa were removed from the Ghanzi Farm in the
1960s and forced to settle in the CKGR by the colonial administration. She noted
further that there were about 64 Basarwa RADPs across the country.
The objective of the relocation she said was to integrate the Basarwa Community
into the entire society and treat them as equal citizens. She said that the
Government was concerned about the high rate of illiteracy, poverty,
landlessness and the nomadic lifestyle associated with the Basarwas. To
empower them economically, the Government had to relocate them to an area
where social services could be provided.
The Government therefore provided them with certain incentives including free
education, free health care and accommodation. They were also given livestock
and taught how to take care of them. They were given a sum of 12,000 pula each
(an equivalent of 3000 US dollars).
Mrs. Galaletsang Maakwe noted that the Government wanted them to be part of
the development programmes that affected their lives and as such was
encouraging them to have their own representatives at local and national levels.
Commissioner Nyanduga thanked Mrs. Galaletsang Maakwe for the briefing on
the Basarwa question and noted that since the matter was still in the Courts of
Botswana, it would be prejudicial to discuss it in substance. He informed officials
of the Ministry that the African Commission had undertaken a study on the issue
of indigenous peoples and communities in Africa and adopted a concept
framework paper on the same. He further informed the authorities that the paper
will be widely circulated to Member States of the African Union and other
stakeholders for their input, and that the African Commission’s Working Group on
Indigenous Populations and Communities in Africa would be visiting African
countries to conduct further studies on these and related phenomena.
Meeting with the Coordinator of the National Aids Coordinating Agency
(NACA) 16th February 2005
The delegation met with the Coordinator of NACA on 16 February 2005. After
introducing the delegation, Commissioner Nyanduga explained the process
leading to the adoption of the African Charter, it’s entry into force and the
establishment of the African Commission. He further explained the mandate of
the Commission emphasizing on its promotional mandate, in the context of the
mission to Botswana.
In this regard, he noted that the eleven members of the Commission have been
allocated African countries in which they are required to undertake human rights
promotion, promotion of understanding of the African Charter and the activities of
the African Commission. He said that with particular reference to the visit to
NACA, the Commission was of the view that HIV/AIDS apart from being a health
issue, and affecting development, also had human rights issues associated with
it, such as discrimination against people living with AIDS, the problem of the girl
child having to drop out of school (the right to education), sometimes to take care
of the sick parents or siblings the problem of children orphaned by the pandemic,
stigmatization, access to anti-retroviral medicines, etc. Based on this, the
Commissioner noted that it was important to visit the Agency dealing with this
scourge, and in particular to learn how the Agency is dealing with AIDS in
general and the human rights issues arising there from.
In response, the Coordinator of NACA, Mr. Batho Chris Molomo agreed that
HIV/AIDS had very serious human rights implications. He noted that structures
had been put in place to curb the pandemic and to ensure the protection of the
rights of those infected and affected. He cited in particular the National AIDS
Council which is a policy making body chaired by the President of the Republic.
Representation at the Council was from the public and private sector, including
NGOs and Chief Executive Officers (CEOs) of parastatals and other companies.
He noted that the Council was divided into sectors and one important sector is
the sector dealing with ethics, law and human rights. This sector served as an
advisory arm of the Council on issues of law and human rights vis-à-vis persons
living with AIDS.
He noted further that the Government was encouraging voluntary testing to
enable people to know their status. However, he indicated that this approach had
some human rights implications because not everyone had access to testing. He
said there was a programme called “Tebelopele” which means “Looking forward”
in Tswana. He said that under this programme, everyone who went for testing
was counseled before and after the test, and those who tested positive were
referred for treatment.
He observed that many people were not going for treatment because they did not
know their status. As a result, the government had instituted routine testing
based on the symptomatic signs identified by doctors in hospitals. Even under
this routine testing, the patient had to consent whether in writing or orally. The
age of consent had not been settled, but there was a policy decision that it
should be fixed at 16.
The position governing voluntary testing had also not been legislated. However,
the ethics, law and human rights sector of the National AIDS Council had been
mandated to look at all legislation dealing with health issues and advise on
issues related to HIV/AIDS.
On discrimination and stigmatization, the Coordinator of NACA informed the
delegation that apart from the Constitution that deals with discrimination, there
was no specific legislation dealing with discrimination against people living with
HIV/AIDS. He however, noted that the Department of Labour was looking at
legislation to ensure that nobody was victimized because of their status.
On stigmatization he said that because it is a moral issue, the matter was being
dealt with through sensitization and education, and not through legislation.
On the treatment available to persons living with HIV/AIDS, Mr. Batho Chris
Molomo said that the government had introduced free antiretroviral therapy. In
this regard, anybody with a CD count of less than 200 was eligible for treatment.
This however was limited to Botswana citizens and did not extend to nonnationals resident in Botswana. Non nationals could access this therapy if they
had the resources, or through their medical aid schemes.
On care and support for people dealing with HIV/AIDS, the Coordinator indicated
that the Ministry of Local Government offered assistance to children orphaned by
HIV/AIDS and other diseases. This was because there was a thinking that the
majority of orphans were due to HIV/AIDS. Government provided transport
assistance to care givers to ensure they took proper care of terminally ill persons.
He admitted that there was no specific programme for widows. However, there
was a programme for destitutes. There was a traditional support system which
discourages wife or property grabbing, and noted that one could also seek
recourse through the courts. He noted further that communities were encouraged
to come together through what is called community mobilization to address
issues of discrimination, stigmatization and care and support to people infected
or affected by HIV/AIDS. There were also NGOs funded by the Government to
provide care and other services.
The Commissioner wanted to know the extent to which people were coming
forward for voluntary testing. The Coordinator indicated that testing was free of
charge and many people were coming forward. That the Government was
encouraging people to be open about their status, as this was one way to destigmatize the issue. This notwithstanding, he noted that confidentiality remained
a key issue. A health worker or an employer must not divulge the status of an
employee without his or her consent.
The Commissioner also wanted to know whether persons tested positive were
required to bring their partner(s) for testing. The Coordinator indicated that there
was no legislation on this and that there was no obligation to bring one’s partner.
He noted however that couples were being encouraged to come for counseling
together so that they could be counseled and tested together.
He informed the delegation that children under 16 needed to get consent from
their parents before being tested. In this regard he noted that there was a
problem in that, children below 16 who might be willing to take the test would be
afraid to go and ask their parents for consent as this would imply they were
sexually active or had started having sex. Another related problem had to do with
the situation of children who had been orphaned. The problem here was whose
consent they would seek.
The Coordinator observed that there wasn’t much difference between the
urban/rural prevalence rate. He indicated, however that transit route towns and
mining towns, especially those that were male dominated, had a higher
prevalence rate. In terms of age, the rate was higher between the ages of 25 to
39, and there was a prevalence rate of 6% between the ages of 15 to 19.
In terms of voluntary testing, more females came forward for voluntary testing
than males. Men were therefore a challenge and were being targeted. Some men
also stopped their wives from enrolling into certain programmes because of the
stigma associated therewith.
The Commissioner also wanted to know the strategies that had been put in place
in schools to combat the pandemic. The Coordinator indicated that the Ministry of
Education had developed a programme in its curriculum called Programme for
Life which encouraged abstinence. Condom use was also encouraged. He
explained that with regards to prisons, there was no policy to distribute condoms
in prisons and there had not been any policy to deal with HIV/AIDS problems of
prisoners apart from encouraging them to go for testing.
Meeting with the Botswana Police Service
The delegation met with the Botswana Police Service (BPS) on 16 February 2005
at its Headquarters in Gaborone. After introducing the delegation, Commissioner
Nyanduga gave an overview of the African Charter and the establishment of the
African Commission. He informed the police officials that the mission of the
delegation was to promote awareness of the African Charter and the activities of
the African Commission. He indicated that as part of the promotional mandate of
the Commission, the latter seeks to engage States in dialogue on best ways to
enhance the promotion and protection of human rights. In doing so, the
Commission engages not only government officials, but other stakeholders
involved in the promotion and protection of human rights.
The Commissioner further indicated that the visit to the police was to understand
the way the BPS as an institution, participates in the promotion and protection of
human rights in Botswana. The Commissioner further emphasized the
indispensable role the police play in the protection of people and their property.
To this end, the delegation wanted to know the extent to which officials of the
Botswana Police had been trained in human rights, and the kind of human rights
problems they encountered in the course of duty.
In response, the Commissioner of Police, Mr. Edwin Jenamiso Batshu informed
the delegation that the Botswana was governed by a democratic constitution and
the action of each official within the police service must conform to the spirit of
that constitution. He noted further that the Mission Statement and the Values of
the Botswana Police Service had all been inspired by the same constitution.
On the question of police training, he indicated that the police invest a lot in
human resource development to enable its officials comply with its Mission
Statements and Values. He however, admitted that human rights is not taught as
a specific module at the police training college, but rather a component of human
rights is always brought in during the training, especially on criminal procedure
matters. He noted further that there were three trainers who had been trained on
human rights.
The Police Commissioner further informed the delegation that in 1995 the BPS
together with the police in other SADC countries established the Southern
African Regional Police Organisation (SARPO) to amongst other things, fight
cross-border crimes and other related offences, especially motor car theft. At the
first meeting of SARPO it was realized that the standards of the police service
were different from country to country, especially in the manner in which they
discharge their duties. He noted that police officers from other countries adopted
rougher or unprofessional tactics in dealing with suspects. The SARPO Code
was based on the BPS Code of Conduct.
It was therefore suggested that a code of conduct for SARPO be adopted to
guide the activities of all police officers in the region. This code of conduct was
adopted in 2001 and signed in 2002 in Zimbabwe. A training committee was set
up to train all police officers in the region.
The Police Commissioner indicated that together with the Association for the
Prevention of Torture (APT) 264 officers in the Botswana Police had been
trained, 136 of whom are senior officers including station commanders. He also
informed the delegation that the BPS took part in the drafting of the Robben
Island Guidelines on the Prevention and Prohibition of Torture adopted by the
African Commission at its 32nd Ordinary Session in October 2002.
Commissioner Nyanduga indicated that he was impressed by the way the BPS
seemed to be discharging its duties and working with other police officers in the
region to ensure that their activities conform to basic international standards. He
however raised concerns about the fact that human rights training was not a
specific module in the police training curriculum.
Commissioner Nyanduga also wanted to know the impact of community policing
and the difference between the BPS and the Local Police of the Tribal
Administration.
In response to the issues raised by Commissioner Nyanduga, the Police
Commissioner informed the delegation that the police was developing a human
rights curriculum for the training of its officials.
On the difference between the BPS and the Local Police, the Police
Commissioner indicated that they were two different entities. He noted that while
the Botswana Police Service dealt with national issues including serious crimes,
the Local Police was at local level, dealing with customary law issues and petty
crimes. He admitted that there were cases of overlaps, and as a result, the
government was trying to merge the two institutions.
With regards to community policing, the Police Commissioner indicated that the
only way to measure success has been by working closely with the communities
through programmes like Community Forums or Crime Prevention or
Neighborhood Watches. He indicated that in schools, Crime Prevention Clubs
have been established. As at December 2004, over 534 Crime Prevention
Committees had been established all over the country. Every station commander
reported on a quarterly basis on the activities of the Committees in his or her
region. At the end of the year, the Commissioner of Police reports to government
on the activities of the Committees through out the country.
Meeting with the Director of the Directorate of Corruption and Economic
Crimes (DCEC)
The meeting with the Director of the DCEC, Mr. Tymon M Katlholo, took place
on 16 February 2005. Commissioner Nyanduga informed the Director of the
DCEC that the delegation was on a promotional mission to the Republic of
Botswana to engage the stakeholders on how to enhance the promotion and
protection of human rights in the country.
He indicated that the visit by the delegation to the DCEC is to enable the African
Commission understand the work of the DCEC and how it impacts on the
enjoyment of human rights in Botswana.
Mr. Tymon M Katlholo thanked the delegation for having made time to visit the
institution and noted that it was an indication that human rights cover every
sphere of human activity.
He indicated that corruption by its nature undermines democracy, the rule of law,
diverts resources from their legitimate goals, undermines the economy and
inevitably undermines the enjoyment of human rights.
Regarding the role of the Directorate in the human rights sphere, he indicated
that the Directorate operates like a law enforcement agency and as such
observes the rules of justice and fairness. He indicated that the Directorate had
the power of arrest and sometimes without a warrant. That it also had the power
to detain suspects for up to 48 hours. In the exercise of its powers, the
directorate complies with basic human rights norms.
The Director said that if allegations were made against any persons, the
Directorate had to prove the case beyond reasonable doubt. He however noted
that certain Sections of the Corruption and Economic Crime Act of 1994 had
raised controversy especially with regards to their human rights applications. In
this regard, he referred to Section 34 of the Act which required that any one who
had amassed wealth and could not explain how they got their wealth would be
forced to explain. He said this was controversial because the person was being
forced to provide evidence to incriminate him/herself.
The Commissioner wanted to know the extent to which Section 34 had been
used and how effective it had been in curbing corruption. The Director indicated
that only one case had been taken to court under Section 34 of the Act.
He also made mention of sections 7 and 8 which empowers the Directorate to
demand information from anyone and if they failed to provide information within a
specified period of time they are guilty of an offence.
Regarding the right to seek information, he indicated that Section 44 prohibits the
Directorate from disclosing information about an ongoing investigation without
reasonable cause He noted that the Press has complained about this provision
claiming that it violated the right to receive and impart information.
To address the situation, the Director informed the delegation that, he addressed
the press regularly on a case under investigation without providing details about
the investigation itself.
Commissioner Nyanduga wanted to know the professional and technical capacity
of the investigators. The Director indicated that the investigators are drawn from
a wide range of professions including lawyers, accountants, engineers, and the
Directorate can outsource any investigation to any competent agency if the
required skill was not available at the Directorate.
Meeting with the Chief Justice
The delegation met with the Chief Justice (CJ) on 17 February 2005. After giving
an overview of the African Charter and the activities of the African Commission,
Commissioner Nyanduga informed the Chief Justice of the purpose of the
mission of the African Commission to the Republic of Botswana. He indicated
that in terms of Article 26 of the African Charter, the judiciary is recognized as a
guarantor of the rights enshrined in the Charter, and also noted that the African
Commission has adopted a resolution on the Independence of the Judiciary, and
Principles of Fair Trial in Africa.
The Commissioner noted that the Judiciary being an important institution in the
protection of human rights, it was only fitting that the delegation of the African
Commission in a promotional mission pays a courtesy call to the CJ to learn how
the Judiciary in the country was ensuring that citizens enjoy their rights.
He said the delegation would in particular like to know the jurisdiction of the
different courts and in particular how the local courts administer customary law
especially to persons who are not indigenes of that particular custom/region. The
Commissioner also said that the delegation would like to know the role of the CJ
in the electoral process, and the extent to which human rights as a discipline of
law had been exposed to lawyers and judges.
In his response, the CJ thanked the delegation for having found time to come
and visit him. He said that most judges are aware of the African Charter and the
activities of the African Commission through readings and seminars and noted
that it is important that from time to time, the Commission should make visits to
publicise itself.
He said the African Charter seemed to be more advanced than the constitution of
Botswana especially as it incorporates economic, social and cultural rights, which
were not part of the constitution of Botswana.
On the training of judges on human rights, the CJ noted that there was no
specific human rights training for judges. However, judges were regularly sent to
attend seminars and training courses on human rights, and this had led to the
changing of several laws including the Marital Powers Act.
He said that judges are extremely vigorous on human rights litigation and that the
judiciary is trying to urge Government to examine all the treaties it had ratified
and see how to domesticate them. He noted further that even though there had
been no domestication, the judiciary still invoked international human rights
treaties.
He informed the delegation that the Botswana judiciary is part of the Association
of Judges of the Southern African Development Community (SADC) countries
which meets regularly to discuss various issues including recent developments
on human rights. The judges also attend seminars and training courses with
other Commonwealth judges. These meetings enable the judges to exchange
ideas and information on various issues including human rights.
The CJ noted that there was no interference in the affairs of the judiciary by any
State organ or individual, and that Botswana has a very litigious population which
had resulted in many cases coming to court resulting to a lot of delays in the
disposal of cases.
The CJ said that there was scope for improvement in then judiciary in his view
because it did not have sufficient capacity such as court buildings and trained
judges to keep up with the growing demand.
He said the motto of the Judiciary was to bring justice to the people, and in
keeping with this motto, Magistrate Courts were being built in localities nearer to
the people. He noted that if the Judiciary wanted to provide justice for all, people
must have access, including physical access to justice. He admitted that access
to justice was difficult for the poor as they could not afford good lawyers while the
Legal Aid was rudimentary and did not adequately assist the poor.
On sentencing, the CJ noted that some years ago, politicians thought judges
were lenient in their sentencing of criminals and as such Parliament imposed
mandatory minimum sentences for certain offences. This resulted in many
people being condemned long term prison sentences resulting to overcrowding in
prisons. The law has recently been revised to give judges some discretion in
deciding sentences.
On the administration of Customary Law by the Customary Courts, the CJ noted
that most Botswana customs are fairly homogenous and as such any person
could be tried under customary courts throughout the country. He noted however
that individulas were at liberty to choose where they wanted to be tried.
Foreigners in particular always opted to be tried in the subordinate courts rather
than in the customary courts.
He said Customary Courts administered Customary Laws and after the last
appeal process from the Customary Court, a dissatisfied party could still appeal
to the High Court. He noted that the main attraction of the Customary Court was
that it is easily accessible and the process is quick and straightforward, while
many people found the process of the common law courts to be cumbersome.
Regarding his role in the electoral process, the CJ noted that prior to the
establishment of the Independent Electoral Commission (IEC) in 1998, the
constitution provided in respect of registering for the position of the President that
political parties register with the Chief Justice of the High Court. The IEC
conducts all the other elections and proclaims the results while the President is
elected through Parliament .
When a candidate wants to stand or register to become an MP, he/she must also
indicate his or her choice for President. After the MPs have been elected, the IEC
then tallies the results and presents them to the Chief Justice who certifies them
and announces the results. The candidate attracting support from the highest
number of MPs is declared by the CJ as President. The President is not elected
from Parliament. In other words, the President is elected by only 40 MPs.
On corporal punishment, the Chief Justice indicated that the judges in the Court
of Appeal are very human rights conscious and had in respect of motor car theft
declared corporal punishment unconstitutional.
The Commissioner wanted to know whether it wasn’t time for the judiciary to start
thinking of adopting the inquisitorial system of justice so as to ensure that those
who were less fortunate to secure a lawyer are also protected. He also wanted to
know whether the judiciary had explored the possibility of Alternative Dispute
Resolution (ADR)
In response, the CJ noted that rules are made for the courts and not the courts
for the rules and the judiciary tries to ensure that the rules do not stand in the
way of justice. He indicated that if a rule stands in the way of justice, the judge
was at liberty to waive the rule without prejudice to the other party. He said the
judiciary tries to explain all the legal rights to the parties so as to enable the
parties know their rights. He said that the judges ensured that a rule does not
interfere with a fundamental law of justice.
The Chief Justice added that the judiciary was thinking about the inquisitorial
system and had plans of starting a small claims court to reduce the time spent in
court and the cost. He also indicated that the judiciary had undertaken a study on
the ADR but was yet to implement it.
Visit to Gaborone Prison
There are four prisons in Gaborone, the capital. They include the Boys Prison,
the Women’s Prison, the First Offenders Prison and the Central Prison.
The delegation visited two prisons – the Boys Prison and the Women’s Prison.
The delegation also visited the Sick Bay (Clinic).
The Gaborone’s Boys Prison.
This was the only Boys Prison in the country. The prison was meant to hold 120
inmates but at the time of the visit had 277 inmates that could be broken down as
follows:
- Local remandees
19
- Foreign remandees
- Foreign convicts
- Botswana convicts
- High Court remands
08
33
206
11
The prison had 25 staff members, 24 male and 1 female. There were 3 social
workers – 2 male and one female. The prison held persons of 21 years and
below and had six cells of the same sizes – 14m x 4.5m.
The prisoners were given basic skills such as carpentry, agriculture and brick
laying. Inmates were also taken for literacy classes. The delegation observed
that the cells were overcrowded. Prisoners did not sleep on beds. The authorities
explained that the inmates were not supplied with beds due to lack of space and
as such they slept on mattresses spread on the floor. He mattresses were worn
out sponge. The level of cleanliness and hygiene was fairly good, even though
toilet and bathroom facilities require upgrading. Tiles were broken or peeling off.
They were allowed visits for 15 minutes per month and had recreational facilities
such as football, cards, and darts. They were fed three times a day – breakfast,
lunch and supper. The authorities informed the delegation that another prison fro
young offenders was being built.
The Women’s Prison
The women inmates were separated from the male inmates. They had only
female guards. At the time of the visit, there were 62 inmates plus 4 kids. They
included 23 remands - 15 locals, 8 foreigners (Zimbabweans), 2 of them
Batswana and 2 Zimbabwean who had small children, 10 High Court remands
and 12 local court remands. The Women Prison had a staff strength of 23. At the
time of the visit, 4 were on leave.
The inmates were taught basic skills in agriculture, sewing and mat making.
There were six cells and a dining hall which was also used as a workshop. Due
to congestion and usually during the hot season, some inmates are allowed to
sleep in the dining hall. Each cell of 3m x 5m holding 7 inmates. Five of the
inmates sleep on beds while the other two sleep on mattresses. Congestion was
a major problem. Some Prisoners slept in the main hall which is also used as
dining hall. The inmates produced vegetables for their meals and any surplus
was sold to the public and the money given to the government.
According to Botswana law, children can stay in prison with their mothers up to
the weaning stage, but there is no specific age. The children could then be taken
by the Social Welfare Department to the SOS Children Village or to other
charitable institutions.
For unknown reasons, authorization to visit the Central Prison, which is also the
maximum security prison was not granted.
The Sick Bay (Clinic)
The four prisons in Gaborone had a small clinic called the Sick Bay. The clinic
had three nurses with no doctor. It also had a small dispensary. The clinic had 2
wards – one with six beds and another, the isolation ward, with 3 beds.
Briefing meeting with the Permanent Secretary – Political Affairs in the
Office of the President
After visiting all the different stakeholders, the delegation paid another visit to the
Office of the President to brief the Permanent Secretary for Political Affairs on the
preliminary observations of the mission.
Commissioner Nyanduga informed the Permanent Secretary that the delegation
had met with a cross section of human rights stakeholders in the country,
including the Chief Justice, the Ombudsman, the Commissioner for Prison, the
Police Commissioner, the Coordinator of the National AIDS Coordinating
Agency, the Director of DCEC, the Permanent Secretary and Deputy Permanent
Secretary of the Ministry of Local Government and the Ministry of Labour and
Home Affairs, officials of the Ministry of Foreign Affairs, and Members of the Civil
Society.
He indicated that in his discussion with this cross-section of people, the
delegation had learned a lot about the human rights situation in the country and
greatly appreciated the manner in which the different officials responded to the
different human rights issues that were raised.
The Commissioner informed the Permanent Secretary that as the main office
responsible for coordinating human rights in the country, there were certain
issues that the delegation was particularly interested in raising with her office.
These included the following:
-
the ratification of the Protocol on the Human Rights Court and the Protocol
on the Rights of Women in Africa;
Botswana’s State Reporting obligation under Article 62 of the African
Charter; and
the measures Botswana has taken to implement the African Commission’s
recommendations on the John Modise case.
The Commissioner also informed the PS that there was currently a case against
Botswana before the African Commission dealing with the question of the death
penalty, and that since the matter was still being considered by the African
Commission he wouldn’t want to discuss the substance but would like to draw
her attention to the fact that the African Commission had adopted a resolution on
a moratorium on the death penalty and was currently looking at the question of
the death penalty on a broader scale across the continent.
He also informed the PS that the Commission had initiated a study on the
phenomenon of indigenous populations, and to this end had adopted a
conceptual framework paper on the rights of indigenous populations and
communities in Africa. He informed the PS that the African Commission’s
Working Group on Indigenous Populations would be visiting Botswana in the
near future to discuss this phenomenon.
Regarding the question of illegal immigrants, especially Zimbabweans, the
Commissioner noted that the delegation had learnt that corporal punishment was
not applied only to illegal immigrants but was part of the legal system of the
country. The Commissioner wanted to know whether Community Service could
not be used as an alternative to corporal punishment.
On the police, the Commissioner expressed the need to increase human rights
training of the police and noted that human rights should form part of the module
or curriculum in police training. He informed the PS that by and large he
appreciated the human rights thinking and activities of the Botswana Police.
On the media, the Commissioner expressed the concern raised by some media
practitioners that the media in Botswana did not seem to enjoy freedom of
expression and of the press because of the monopoly of the government in this
regard. The media practitioners had also complained about the prohibition of
government advertisement in some sections of the private media.
Lastly, the Commissioner wanted to know whether the government was not
considering establishing a national human rights commission or upgrading the
office of the Ombudsman into one.
In her response, the PS thanked the delegation of the African Commission for the
visit and said that she hoped the visit will assist government to improve on its
human rights activities.
On the ratification of the protocols she said that the government was working on
the ratification of the protocol on the rights of women and indicated that Mrs.
Gracia Machel Mandela had visited the President on the same matter.
Regarding the ratification of the protocol on the African Court on Human and
People’s Rights, the PS informed the delegation that the matter was being
handled by the Attorney General’s office.
On the question of state reporting, the PS admitted that Botswana had not
submitted any report to the African Commission and noted that that should not be
interpreted as disrespect on the part of Botswana to the Commission. She said
the problem had been lack of capacity. She informed the delegation that to solve
this problem, the Ministry of Foreign Affairs had established an inter ministerial
committee on conventions that would deal with all state reporting obligations of
Botswana. She noted that she was particularly grateful that the Commission
accepted to facilitate a workshop on state reporting.
On the Modise case, the PS informed the delegation that Modise had been
granted citizenship by registration which he had accepted and the only problem
in implementing the Commission’s recommendations was quantifying the
compensation to be paid to Modise. She noted that the government had offered a
settlement package to Mr. Modise but the matter was still being discussed with
his lawyers.
On the question of indigenous populations, the PS said that her Government
would be interested to receive the African Commission’s Conceptual Framework
Paper and that the African Commission’s Working Group on Indigenous
populations was welcome to visit the country.
On the question of the death penalty, the PS informed the Commissioner that the
Botswana public believed very strongly on the death penalty and that before the
death penalty was actually administered on a person, it had to go through an
elaborate process of adjudication thus eliminating any possibility of error. On
corporal punishment, the PS noted that among other things, it was applied to
decongest prisons and to ensure that people didn’t lose their jobs. She noted that
corporal punishment was originally meant for young offenders and petty
offenses, but very recently, it was extended to include persons up to the age of
40.
On the question of the private media, the PS noted that there was complete
freedom of expression in Botswana. She said the media should rather be talking
about inadequate resources to operate their business.
Regarding the establishment of a national human rights commission, the PS said
that it was a decision that could only be taken by government and noted further
that the mandate of the Ombudsman extended to human rights issues.
The Workshop on State Reporting: 17 – 18 February 2005
When the government of Botswana accepted the request of the African
Commission for a promotional mission to be undertaken to the country, it also
requested the Commission to facilitate a two days workshop on State Reporting
to train authorities dealing with the country’s reporting obligations. Following this
request, the Commission proposed to extend the mission to end of 20 February
so that the Workshop should take place on 19 and 20 February. However, in
view of another workshop on a similar subject organized by the United Nations
scheduled to begin on 21 February, the government requested the Commission
to instead use the first three days of its mission – 14 – 16 to meet with
stakeholders and the remaining two days 17 – 18 to facilitate the workshop so as
the give participants time to prepare for the UN organized workshop. The
Commission obliged.
The workshop was aimed at training Botswana authorities responsible for the
preparation of the state report of Botswana for submission to the African
Commission. The workshop was attended by more than 35 participants drawn
from different sectors of the economy and was opened by the Permanent
Secretary for Political Affairs in the Office of the President, Mrs. Tuelonyana
Ditlhabi Oliphant.
In her opening address, Mrs. Oliphant said that she was delighted that the
African Commission was able to accept the Government’s request to facilitate a
Workshop on State Reporting on the African Charter. She said Botswana was
not proud of its record of non Reporting to the African Commission and added
that the Commission should be assured that the Government was treating the
Workshop with utmost importance. She said the non fulfillment of its state
reporting obligation to the African Commission was not due to negligence and
disrespect for the Commission but rather due to capacity constraints beyond the
control of the Government.
She said that the Government had over the years made concerted efforts to build
capacity to meet the reporting obligations of Botswana. In this regard she said
Botswana had received support from the United Nations Development
Programme (UNDP) and some NGOs who had sponsored workshops on
reporting to certain human rights bodies.
She said the Workshop was another milestone in building capacity across
Government institutions, NGOs and civil society and said that was the beginning
of a collaborative working relationship with the Commission as far as reporting
was concerned.
She said further that the Government had invited participants from a cross
section of the society so as to accommodate different opinions in the report
writing exercise. She urged participants to utilize the workshop opportunity to
appreciate the requirements of the African Charter and to actively participate in
the deliberations. She also informed the participants that the workshop was the
beginning of a series of workshops that will eventually culminate into a report to
be submitted to the African Commission.
In response, Commissioner Nyanduga thanked the PS and said the African
Commission was pleased to have been given the opportunity first to undertake
the mission and secondly to facilitate the Workshop.
Conduct of the Workshop
The Workshop took place for two days in the Tlotlo Recreational Centre. It was
divided into two parts. The first part dealt with three issues, namely,
•
•
•
an introduction to the African Charter: a broad overview and interactive
discussion;
substantive discussion of the provisions of the African Charter; and
the content and structure of a State Report.
The second part of the Workshop dealt with practical exercises in which the
participants were broken up into groups to prepare reports on the following
subjects:
-
Issues of concern from an NGO perspective;
Introduction (Back Ground information) of the Report, including civil and
political rights
Economic, Social and Cultural Rights;
Group Rights; and
Shadow Reports and Concluding observations and recommendations.
Each group appointed a Rapporteur that was to present the report before “the
African Commission”. The Rapporteurs came together to constitute the State
delegation to the Commission.
Some of the participants were selected to sit as “the African Commission”. A
“Commissioner Rapporteur” was also selected from amongst the
“Commissioners”. The reporting session was Chaired by Commissioner
Nyanduga.
The “State delegation” presented the report and the “Commissioner Rapporteur”
responsible for Botswana was given the floor to comment on the report. There
after other “Commissioners” were invited to ask questions.
The session was very interactive and very thought provoking questions were
asked to the State delegation.
The Commissioner then gave the floor to other participants to ask questions and
make comments on the exercise. Participants made very instructive comments
and contributions. From the exercise it could be said the participants fully
understood the exercise.
Closing of the Workshop
The Workshop was officially closed by the Deputy Permanent Secretary in the
Ministry of Foreign Affairs and International Cooperation on 18 February 2005.
The DPS thanks the participants and the African Commission and said he hoped
the participants found the exercise very useful. He said the Government would
be waiting for the findings of the African Commission’s mission to enable it deal
with lapses if any.
He reiterated that the Workshop was the beginning of a long process in the
preparation of the country’s State report to the African Commission and said that
the preparation of the report was the duty of all Batswana. He said that the
Ministry is simply a facilitator and promised that the Government will do all it
could to ensure that a report is submitted to the Commission before the end of
2005.
Conclusions and Remarks
On arrival in Botswana, the delegation discussed with the authorities of the
necessity to include other personalities in the programme, notably, the leader of
the Opposition and the Speaker of the national Assembly. Despite frantic efforts
made by the organizers, it was not possible to meet either of them as Parliament
was in session.
The delegation was also not able to meet with the Attorney General as was
originally scheduled due to other pressing engagements. The meeting with the
Botswana Defence Force was cancelled due to lack of time and the meeting with
the Botswana Red Cross took place during the workshop. The Botswana Red
Cross explained their work, particularly at the Refugees Centre in Francistown. It
also noted that one of the major problems facing refugees is lack of access to
HIV/AIDS treatment in Botswana. This notwithstanding, the programme went on
very well.
The delegation noted with concern the very strong feeling at government level
and even among the other stake holders consulted that the death penalty and
corporal punishment should be retained. During the workshop attended by
participants from a cross section of the society, the same strong sentiments were
expressed. These are two areas where the Commission shall continue to engage
the Botswana Government.
On indigenous populations, and in particular on the Basarwa matter regarding
their relocation to the CKGR, the government position is based on the State’s
duty to ensure a better standard of living for all citizens and the Basarwa, while
on the other hand, the Basarwa representatives regard the relocation as
dispossession of their land. At the time of the visit, the matter was in the High
Court of Botswana.
Notwithstanding its failure to submit its state reports, it was evident that the
Government was keen to enhancing its cooperation with the African Commission.
The delegation was informed that the African Commission’s recommendations on
communication 97/93 – John Modise/Botswana had been partially
implemented and the only problem with its full implementation was assessing the
quantum of compensation, which we hope the parties will resolve amicably. On
the recommendation to grant John Modise citizenship by birth, the Government
argues that Mr. Modise has not been denied any right as a citizen of Botswana.
The institutions responsible for the promotion and protection of human rights in
Botswana were relatively active. The police, the judiciary, prisons were meeting
the international standards in the performance of their duties. There was concern
though that the BPS did not have a human rights module in its training
curriculum. The introduction of this module would greatly enhance its efficiency
vis-à-vis the respect for human rights. The prisons visited had very few facilities
for rehabilitation and recreation. The cells were congested and the sleeping
conditions, especially in the Boys prison needed some improvement. Like with
the Police, prison officials did not undergo any specific human rights module in
their training.
The NGO community in Botswana is very vibrant and there seemed to be
cooperation between the Government and NGOs.
Recommendations
Three days were not enough to meet all the relevant human rights stakeholders
in the country. However, the individuals, institutions and authorities consulted
during the mission gave the delegation of the African Commission a fair picture of
the human rights situation in the country on which the Commission can rely and
make an informed opinion to propose relevant recommendations on how to
enhance the human rights situation in the country.
The African Commission makes the following recommendations:
On the Police:
The Government should introduce human rights as a module in the training of the
police
Indigenous populations – the Basarwa community
The Government should engage the indigenous Basarwa communities in further
dialogue and explore ways of communicating with them. Assistance given to
them should be accompanied with training and support mechanisms, uplift their
social wellbeing without prejudicing their culture and traditions.
On the Death penalty
The Government should adopt a moratorium on the question of the death penalty
and undertake extensive studies on the human rights implications of the death
penalty. Subjecting the question of the death penalty to public opinion, especially
if the public has not been sensitized on the human rights implications, will not
produce a fair result.
On Corporal punishment
The Government should explore an alternative to corporal punishment because it
has been found to be a degrading and inhuman punishment. In the case of
Botswana, it can also be said to be discriminatory as it is administered only to
men, and only to men of a certain age bracket. Alternatives such as community
service could be adopted.
On the Ombudsman
The Government should explore the possibility of establishing a National Human
Rights Commission in conformity with the Paris Principles or elevate the
Ombudsman to that status.
To allay criticisms regarding the independence of the Ombudsman, its budget
should be voted by Parliament and the Ombudsman should be appointed by
Parliament and confirmed by the Executive.
State Reporting
The African Commission welcomes the efforts by the Government to submit its
overdue state reports. The Government should redouble its efforts towards
meeting its State Reporting obligations as contained in Article 62 of the African
Charter.
Ratification of Protocols
The Government of the Republic of Botswana should take the necessary steps to
ratify the Protocol on the establishment of the African Court on Human and
Peoples’ Rights and the Protocol on the Rights of Women in Africa.
In view of the fact that the African Union has decided to merge the African Court
on Human and Peoples’ Rights and the African Court of Justice, the Government
of the Republic of Botswana should also take the necessary steps to ratify the
protocol on the African Court of Justice.
NGOs
The African Commission would like to see more Botswana NGOs apply for
observer status and take part in the sessions of the African Commission.
The Presidency
Botswana is one of the most stable democratic states in Africa based on a long
tradition of multiparty politics, a vibrant and prudentially managed economy.
Botswana has since 1969 regularly held popular general elections for its
members of parliament, during which time the President of the Republic is
elected.
Bearing in mind that the Head of State of Botswana is an executive President,
with wide ranging powers, the African Commission recommends that Botswana
Government explore the possibility of constitutional reforms to allow for the
election of the President by adult universal suffrage, in accordance with Artilce 13
of the African Charter on Human and Peoples’ Rights.