AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
Commission Africaine des Droits de l’Homme & des
Peuples
African Commission on Human & Peoples’
Rights
48, Kairaba Avenue, P. O. Box 673, Banjul, The Gambia Tel: (220) 4392 962; Fax: (220) 4390 764
E-mail: achpr@achpr.org; Web www.achpr.org
REPORT
OF THE
FACT-FINDING MISSION
TO
THE REPUBLIC OF BOTSWANA
11 – 15 August, 2008
1
I. INTRODUCTION
Map of Botswana
The Republic of Botswana
Geography
1. The Republic of Botswana is a landlocked country in Southern Africa with an area of about
(581,700 sq km (224,000 sq miles). The capital is Gaborone. She has a total population of
about 1,639,833 people (2006), Botswana is composed of the following ethnic groups Tswana (or Setswana) 79%, Kalanga 11%, Basarwa 3%, others, including Kgalagadi and
white 7%.
Administration
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2. 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.
Constitutional system
The constitutional system is an adaptation of the Westminster model. The Constitution
provides for a non-racial democracy and an elaborate and justiciable Bill of Rights which
guarantees fundamental rights. It provides for separation of powers between the executive,
legislature and the judiciary. The President is not elected directly by popular vote but by the
party which has majority support in Parliament.
3. Constitutional power is shared between the President and the National Assembly. 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.
Legal System
4. The legal system of Botswana is a mixture of Romano-Dutch and English common law
principles. Tribal law and custom continues to be applied in rural areas subordinate to statutory
law.
5. The Botswana civil legal code 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 tradition and customs of
the eight recognised tribes, is also recognised in matters of property, inheritance and personal
dispute arbitration.
Politics
6. The ruling, the Botswana Democratic Party (BDP) was first elected and formed government in
1965 and re-elected at five-yearly intervals since then. 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.
System of Government
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7. Botswana is a unitary state with a multi-party parliamentary system, an executive presidency,
and executive branch composed of 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 and the judiciary, respect for human rights and the rule of
law, and the social and economic transformation through rational resource allocation by
government.
Executive branch:
8. The President is both the head of state and head of government, and appoints cabinet
members. The 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.
9. Mr. Seretse Khama Ian Khama - the son of Sir Seretse Khama, first President of Botswana,
and former head of the Botswana Defence Forces, is the president of Botswana, having served
as Vice President, he took over in April 2008 after Former President Festus Mogae stepped
down mid term.
Legislature:
10. The legislature is made up of bicameral chambers 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 sub-chiefs, and an additional three members elected by the other 12 members.
Judiciary:
11. The Judiciary is made up of the Court of Appeal, High Court; and Magistrates' Courts - one in
each district. The Customary Court operates at local level. The Chief Justice presides over the
High Court and the Court of Appeal. The Court of Appeal is made up of judges, some
expatriate, constituted on a part-time basis.
The Economy
12. 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.
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13. On the downside, the government must deal with high rates of unemployment and poverty.
Unemployment is estimated to stand at 21%, but unofficial estimates place it closer to 40%.
HIV/AIDS infection rates are among 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
14. The Republic of Botswana 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.
15. Botswana is a state party to the African Charter on Human and Peoples Rights. It ratified the
African Charter on 17 July 1986. However, Botswana has never submitted a state report under
Article 62 of the Charter. The Government of Botswana has indicated its readiness to submit
its initial and cumulative state report, but cites lack of capacity and the need for training its
stakeholders who prepare the report, as critical constraints. Training on State reporting has
been proposed and will be carried out in due course.
16. Botswana is party to other regional and international human rights instruments, namely: The
1969 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, 1 st
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.
Human Rights Non-Governmental Organisations in Botswana
17. A number of human rights civil society organizations operate in the country. Some of them
enjoy observer status with the African Commission. These include;
1) First People of Kalahari
2) RETENG (The Multicultural Coalition of Botswana)
3) BOCONGO (Botswana Council of Non-governmental Organisations)
4) MISA (Media Institute of Southern Africa) Botswana
5) Law Society Botswana
6) DITSHWANELO
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BACKGROUND TO FACT FINDING MISSION TO BOTSWANA
18. The fact finding mission to Botswana was undertaken by Commissioner Bahame Tom
Nyanduga, The Special Rapporteur on Refugees, Asylum Seekers, IDPs and Migrants in
Africa, under the terms of Article 46 of the Charter, and pursuant to resolutions of the African
Commission establishing the mandate of the Special Rapporteur which allow the African
Commission to investigate violations of human and peoples’ rights in Africa1.
19. During a number of sessions prior to the 42nd Session held in Brazzaville, the Republic of the
Congo, November 2007, and through other sources of information reaching the African
Commission and the Special Rapporteur, it had become evident that the Republic of Botswana
was experiencing human rights challenges arising from the influx of asylum seekers from
Zimbabwe, due to the deteriorating political and economic situation in Zimbabwe. The
challenges posed by the influx included allegations that the human rights of the asylum
seekers, were allegedly violated by the Botswana Government in many respects, including
allegations of denial of asylum, arbitrary arrests, unlawful repatriation, administration of
corporal punishment to Zimbabwe migrants for violating Botswana laws.
20. Due to the serious economic and political crisis in Zimbabwe which has escalated in the past
three years, resulting in poverty, unemployment and political strife, thousands of
Zimbabweans, (various media institutions say that several million Zimbabweans) including
professionals have fled the country to neighbouring countries, especially to South Africa,
Botswana and Zambia in search of better conditions of living,.
NEGATIVE PERCEPTION ABOUT MIGRANTS
21. There is a perception within host countries that the presence of migrant African foreigners
contributes to crime, and increase pressure in the labour market. A section of the population in
the host countries have resorted to attacking migrants. The treatment of Zimbabwean citizens
and other people within the region, who migrate legally and illegally, is often cited as reason for
the increase in xenophobia.
22. Recently, there were reports that a customary court in Botswana, ordered the flogging of some
illegal migrants from Zimbabwe, there has also been reports that more than 2,500 illegal
migrants are repatriated monthly. It is alleged further that Botswana has built electric fences
along its northern border to stop the flow of thousands of Zimbabweans fleeing into Botswana
to find work and escape political persecution.
23. Article 12 (1) of the African Charter provides for the right to freedom of movement and
residence within the borders of a State, provided that the individual abides by the law. Article
12(3) further provides that every individual when persecuted shall have the right to seek
asylum in other countries in accordance with the laws of those countries and international
conventions.
1
The resolution for the establishment of the special mechanism for refugees was passed during the 34 th
Ordinary Session of the African Commission. During the 35th Ordinary Session, in June 2004,
Commissioner Nyanduga was appointed Special Rapporteur for the Mechanism.
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24. The number of Zimbabwean asylum seekers in Botswana, is unduly low. The main reason is
Botswana’s policy of denying refugee status to asylum seekers who enter Botswana as a third
country after transiting states considered to be “safe”, i.e.; “the first country of asylum
principle”. Secondly, Botswana, places asylum seekers in detention facilities while processing
their application, and then placing them in the Dukwe Refugee camp once asylum application
has been granted. This policy which is based on the reservation Botswana entered to the 1951
Refugee Convention deprives asylum seekers the right to work, and keeps them isolated from
the rest of society.
Preparations for the Mission
25. The Secretariat of the African Commission wrote to the Government of Botswana, on 14 th
March 2008, requesting authorization for the Commission’s delegation to undertake the factfinding mission from 18-21 July 2008. During the 43rd Ordinary Session held in Ezulwini,
Swaziland, in May 2008, Commissioner Nyanduga held consultations with the Botswana
delegation on a number of human rights issues, in his capacity as Commissioner responsible
for promotion of human rights in Botswana, including the human rights situation of the
Zimbabwe migrants.
26. Subsequently, through its Embassy in Addis, Botswana sent a reply by a Note Verbale,
informing the Secretariat that, the request for a fact finding mission had been accepted, and
suggested that other dates convenient to both sides be proposed on account that the
previously proposed dates fell on a holiday.
27. The Secretariat replied by a Note Verbale on July 17, 2008, proposing 11-15 August 2008. The
Embassy of Botswana in Addis sent a programme of work on the 24th of July 2008.
28. The Secretariat acknowledged receipt of the Note and proposed programme, through Note ref:
ACHPR/LPROM/F-FMISS/GOV/BOTS/2.
Composition of the Delegation
29. The delegation was composed of Commissioner Bahame Tom Mukirya Nyanduga, Special
Rapporteur on refugees, asylum seekers, internally displaced persons and migrants in Africa,
and Mrs. Oluwatosin Nguher, Legal Officer of the Secretariat of the African Commission.
II. TERMS OF REFERENCE FOR THE MISSION
The terms of reference for the fact-finding mission were;
a) To examine the laws, policies and other measures adopted on asylum seekers, refugees
and migrants.
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b) To examine whether the International and Regional instruments on refugees have been
domesticated.
c) To examine the challenges faced by the Republic of Botswana in the implementation of its
obligations under International and Regional instruments and specifically, the African
Charter regarding rights of Zimbabwean asylum seekers and migrants.
d) To make recommendations to the Government of Botswana on measures to be taken to
give effect to the rights of migrants under the African Charter.
THE FACT - FINDING INVESTIGATIONS
30. The delegation arrived in the country on 10th August 2008. During the subsequent five days,
the Delegation met Government ministers, senior civil servants, leaders of the three major
political parties and representatives of civil society. The delegation also visited the Francistown
Detention Centre for illegal migrants, the Dukwe Refugees Camp and spoke to asylum seekers
and refugees. It also held meetings with representatives of the UNHCR and the Botswana Red
Cross Society.
DAY ONE- 11 AUGUST 2008.
MEETING WITH THE MINISTER OF FOREIGN AFFAIRS
31. Commissioner Nyanduga was received by Hon. Phandu Skelemane, M.P. Minister for Foreign
Affairs and International Cooperation of the Republic of Botswana. He welcomed the
Commissioner to Botswana and requested him to explain the purpose of the mission.
32. Commissioner Nyanduga informed the Hon Minister that he was conducting a mission in
Botswana for the second time. He had previously conducted a promotion mission to Botswana
in February 2005. He said that his fact finding mission is based on the protection mandate of
the African Commission. He explained further that unlike the 2005 promotion mission, which
looked at the broad human rights issues in Botswana, the fact finding mission is carried out to
investigate allegations of human rights violations.
33. Commissioner Nyanduga stated that the mission to Botswana was intended to inform the
African Commission about the situation affecting asylum seekers, refugees and migrants in
Botswana. He stated further that during its recent past sessions, the African Commission has
received information concerning the situation of migrants fleeing Zimbabwe, due to the political
and economic situation in that country.
34. He said that the Commission had raised the matter with the Zimbabwean delegation during the
41st Ordinary session held in Accra, Ghana, when it examined the Zimbabwe state report.
35. He explained further that the Commission had observed that the political violence in Zimbabwe
prior to, during, and after the March and June 2008 elections, had exacerbated the flight of
Zimbabwean migrants and asylum seekers to Botswana. He recalled that the Zimbabwean
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migrants had borne the brunt of xenophobic attacks on African migrants in South Africa in May
2008, which was also a matter of grave concern to the African Commission. He said that the
two situations demonstrated once again the need for protection of Zimbabwean migrants. He
distinguished the situation affecting migrants in South Africa, from the situation in Botswana.
36. He told the Minister that his mandate as the Special Rapporteur, derived from the African
Charter and resolutions adopted by the African Commission. He stated that Article 12 of the
African Charter recognizes the right of an individual to seek asylum when persecuted. He
stated that the 1969 OAU Convention had extended the definition and status of a refugee to
include persons fleeing generalized violence. The OAU Convention obliges African states to
find common solutions to refugee problems through cooperation and provided that the grant of
asylum is a humanitarian act.
37. Commissioner Nyanduga explained that migration of African people within and outside the
continent is a phenomenon fraught with many human rights challenges to the individuals, as
well as the states concerned. The Commission therefore was keen to learn about the
challenges facing Botswana, as a transit, and host state. At the end of the investigations the
Commission will make recommendations, to the Botswana Government and the African Union
Assembly.
38. He wanted to know the numbers of refugees and migrants in the country, the budgetary
implications on government, as well as any other challenges emanating from the situation. He
also wanted to know the legal and administrative measures taken by the Government of
Botswana to protect the rights of asylum seekers, refugees and migrants, bearing in mind
Botswana’s obligations under the regional and international human rights instruments.
39. Minister Skelemane stated that he was not in a position to provide specific answers to all the
questions. The line ministries would do so when the Commissioner meets them. He stated that
there was no persecution of asylum seekers or migrants in Botswana. There is legislation in
place to deal with asylum matters and that a Refugee Committee has been established for that
reason. He acknowledged few cases of economic migrants, i.e. from Somalia and other states.
He reaffirmed that Botswana would not send any person back to his/her country where he/she
may face persecution.
40. He said that there are two broad categories of migrants in Botswana. Those who enter
Botswana without travel documents because they cannot afford them. These, he said, come to
seek employment and are constantly avoiding the Botswana security forces and the local
chiefs. The other category is of those who cross gazzetted border posts and are granted a 90
day stay permit. If they wish to seek employment, they must secure work and residence
permits. He said that the first category of migrants from Zimbabwe is repatriated after
processing at holding centers. This involves taking down details about their places of origin so
that they can be repatriated honorably. He said that Botswana had erected a border fence not
to stem the flow of migrants, but to protect its livestock from foot and mouth disease. He said
that the border communities have also raised concerns about crime, such as stock theft. Local
MPs have requested for more border patrols by the Botswana Defence Forces, to avert local
fears. He said that he had to answer questions on the issue in parliament.
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41. He said that genuine asylum seekers and refugees report to the security forces or the chiefs,
and the government does not have any problems with them. He said that government works
closely with the UNHCR to deal with their problems.
42. Regarding the claims that Zimbabwean migrants are subjected to corporal punishment, the
Minister said that corporal punishment is administered on offenders irrespective of nationality,
as provided for under the law. He said that it is efficient, simplest, cost effective, and is
supported by traditional rulers because it helps to maintain the social fabric. He commended
the Commissioner for being concerned with the plight of migrants, asylum seekers and
refugees, and wished him a pleasant stay in Botswana.
MEETING AT THE MINISTRY OF LABOUR AND HOME AFFAIRS
43. The Commissioner met the Deputy Permanent Secretary of the Ministry of Labour and Home
Affairs, who extended apologies on behalf of the Minister, who was attending to other official
functions and could not meet the delegation. The Deputy Director of Immigration and the
Commissioner for Prisons were also present at the meeting.
44. Commissioner Nyanduga explained the background to the mission, which was specifically to
investigate the human rights situation concerning asylum seekers and migrants generally, and
Zimbabwean migrants in Botswana in particular. The Commissioner asked the Deputy
Permanent Secretary and the other officials certain specific questions, about:
a) what legislative or administrative measures are available to protect the rights of the
migrants in accordance with the obligations under the African Charter?
b) what are the challenges faced by the Government in handling the issue of the
Zimbabwean migrants in Botswana?
c) what are the statistics of migrants in Botswana, in order for the Commission to get a clear
picture of the magnitude or otherwise of the influx of migrants into Botswana?
d) how have the local communities reacted to the situation of the inflow of migrants into the
country?
45. The Deputy Permanent Secretary informed the Commissioner that they rarely dealt with or had
any problems with Zimbabweans who entered Botswana legally, prior to the elections, but
since the elections there have been basically two categories of illegal migrants. Those who
come in legally and decide to stay on after the expiry of their period of stay, to look for jobs and
as a result of this, become illegal. The second category of illegal migrants is the border
jumpers, who come in through various illegal non scheduled entry points across the common
border into Botswana.
46. This second category of illegal migrants, are from time to time, rounded up by the authorities
and taken to temporary camps where they are registered and sent back home. This however
turns out to be a vicious circle, because majority of them still find their way back into the
country, within very short intervals.
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47. He said that recently, after the March and June 2008 Zimbabwe elections, 14 adults (3
females) asylum seekers entered Botswana as a result of fear of political persecution. He said
that there is a Refugee Advisory Committee attached to the office of the President, which deals
directly with the asylum seekers. They are in a better position to give more information on the
statistics of asylum seekers and refugees.
48. The Deputy Director of Immigration informed the Commissioner that after refugee status is
granted to the asylum seeker, a special kind of resident permit is issued by the Ministry of
Home Affairs in consultation with the Office of the President. He also stated that the issue of
illegal immigrants is a problem for the Government. When these illegal immigrants are rounded
up, they are interviewed and taken to the centre for illegal immigration, pending the processing
of their deportation papers.
49. As regards facilities available to cater for the immigrants, the officials informed the
Commissioner that there are several centers apart from the one at Francistown, which caters
for the illegal migrants, where documents are processed faster. That the government is also
planning to build more of such centers. At the centers the migrants are screened, processed
and conveyed by purpose- built vehicles to Francistown and then to Zimbabwe. They also
stated that the Francistown centre is the biggest holding centre. It is run jointly by the Prisons
and Immigration departments, and it is not a prison per se. It has a capacity for 504 people.
50. Commissioner Nyanduga asked if there has been collaboration between the Governments of
Botswana and Zimbabwe on how to deal with the issue of migrants in the country. The Deputy
Permanent Secretary answered that the Zimbabwean and Botswana governments collaborate
concerning the Zimbabwean migrants in Botswana. There was also an instance where the
Zimbabwean High Commission was called upon to investigate and verify allegations of
maltreatment of migrants in these centres.
51. The Commissioner also wanted to know how women and children migrants are treated. The
Official informed him that women and children are kept in separate facilities.
52. Commissioner asked why the centres are run by prison officers. The Commissioner for Prisons
stated that the centres are co-run by the prisons and immigration services, this they say is due
to the expertise and knowledge they have in issues of operating detention facilities.
53. Responding to the question about the reaction of the local population and communities, the
officials stated that it was generally sympathetic, and where possible, the migrants are given
menial jobs to sustain themselves.
54. The Deputy Permanent Secretary stated that while it is clear that the law does not allow the
employment of illegal immigrants, there is broad consensus that those who have artisan skills
can be employed. It is felt this would alleviate criminality, which had risen, allegedly due the
influx. Citizens are encouraged to give the migrants menial jobs, christened “peace jobs”, until
when the situation improves in Zimbabwe.
55. The Department of Immigration and Citizenship gave the statistics of illegal immigrants
repatriated from 2003-2007 as follows:
11
YEAR
NUMBER
2003
36 724
2004
57 808
2005
46 580
2006
60 447
2007
48 402
MEETING AT THE ATTORNEY GENERAL’S CHAMBERS
56. On arriving at the Office of the Attorney General, Dr. A. L. Molokomme, the Attorney General,
welcomed the Commissioner and the Legal Officer to her office and asked the Commissioner
to state the purpose of the delegation’s mission to Botswana.
57. The Commissioner thanked the Hon. Attorney General for receiving the delegation and
explained the background of the mission he was undertaking as the Special Rapporteur,
concerning the human rights problems posed by the influx of migrants into Botswana.
Commissioner Nyanduga said that in view of the huge number of Zimbabwe migrants in
Botswana, he wanted to know:
a) the legal and institutional framework obtaining in Botswana to deal with migrants issues in
Botswana?
b) what are the figures of asylum seekers, refugees, and migrants into Botswana, in particular
from Zimbabwe?
c) what is the legal process followed prior to the repatriation of migrants?
d) What measures has Botswana taken to domesticate regional and international human
rights instruments?
e) what are the challenges faced by the government and how has the government responded
to these challenges?
58. The Hon AG stated that there have been a lot of economic and social challenges, due to the
huge inflow of Zimbabweans into the country. She said however that the influx has not caused
any legal challenges yet. She said that there are clear laws concerning immigration in the
country and the regularization of the stay of migrants in the country which is strictly followed to
the letter.
59. She observed that the border jumpers pose a lot of challenges to the government because
even after their deportation, they always find their way back into the country shortly afterwards.
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60. The AG stated that the Government of Botswana takes very seriously, its regional and
international obligations and that it is sometimes surprising when their delegation comes back
from the African Commission sessions, with reports of allegations by civil society about that
Government’s violation of its obligations under the African Charter. She stated that the rule of
law is strictly observed in Botswana and that the laws of Botswana apply to everyone who lives
in the country, be it locals or foreigners. No specific person or group is selected for special
kinds of punishment.
61. Mr. Keborapele Moesi, the Deputy Secretary for International and Commercial services at the
Attorney General’s Chambers, elaborated further, concerning statements made at the African
Commission ordinary sessions. He said that there are a lot of uninformed people, giving false
information to the Commission, which forces Botswana delegation to defend itself against such
information.
62. Another official at the AG’s chambers, Mr Gunda stated that two factors are responsible for the
inflow of the Zimbabwean migrants, which are:
1) The Push factor- which is precipitated by factors like political instability, fear, lack of jobs,
etc;
2) The Pull factor- factors which attract the migrants into Botswana, which include economic
stability, good governance, better living conditions etc.
63. He however, stated that the increasing number of illegal migrants had outstretched the
country’s social and economic facilities, which has led to challenges such as distorted wages,
competition with locals for jobs, disgruntled locals, environmental problems and other
challenges.
64. The Commissioner informed the Hon Attorney General that even though the delegation is not
in Botswana to discuss corporal punishment and the death penalty it would take advantage of
meeting her for the first time to brief her about the Commission’s position on the two issues, He
stated that the Commission has adopted a resolution on the moratorium on the death penalty.
On the issue of corporal punishment, he referred her to a decision on a Communication from
Sudan which declared corporal punishment cruel, inhuman and degrading punishment.
65. Regarding concerns raised about false allegations brought to the attention of the Commission
and the accuracy of the mission report, he assured the AG that the Commission deals with
issues brought to its attention, including those from civil society, by carrying out investigations
on the alleged violations, and thereafter a report and its recommendations are sent to the
Government in question to comment upon it, before it is finally sent to the AU Assembly.
66. On the corporal punishment The Attorney General said that there is a belief in the value
system in Botswana that corporal punishment is meted to both citizens and non-citizens who
fall foul of the law. She did not discuss further the issue of the death penalty since there are
two communications against Botswana pending before the African Commission.
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DAY 2 – 12TH AUGUST 2008
VISIT TO NGOs
DITSHWANELO- BOTSWANA CENTER FOR HUMAN RIGHTS
67. The delegation held a meeting at the DITSHWANELO offices, with Ms. Alice Mogwe, Director
of the Botswana Centre for Human Rights, Ms. Ingrid Melville and Ms. Silibaziso Mtunzi, staff
of the Centre. The Commissioner gave a background to the mission and stated that the
delegation had already held meetings with Government officials, and therefore wanted to get
the perspective other stakeholders. He noted that Botswana is either a transit or a host country
for Zimbabwean migrants. He wanted to know:
1) how has the Government responded regarding its obligation under the OAU and UN
conventions on the rights of refugees?
2) how has the local population responded to the inflow of migrants into
the country?
3) how civil society has responded to t he problems associated with the influx of migrants,
especially from Zibambwe.
68. Ms. Mtunzi, the paralegal and research coordinator for DITSHWANELO gave a brief insight
into their work on refugees. She noted that there has been no significant number of migrants
seeking assistance from DITSHWANELO; she said that this may be as a result of distance
from the places where the migrants live and the city. She however informed the Commissioner
about two cases involving migrants who came for assistance. They were both cases seeking
legal representation in court. DITSHWANELO assisted by giving free legal representation. One
of the cases was still pending, while in the second case the Zimbabwean accused person was
acquitted.
69. She said that there have been cases involving undocumented migrants who are arrested and
detained by the police. In a number of cases, the migrants are released by the police after
intervention by DITSHWANELO. The Commissioner then asked if there are any guarantees
that the migrants would not be rearrested. She said that there are no guarantees; even though
it was evident that there has been a softening of attitudes towards the Zimbabwean migrants
generally.
70. Ms. Mogwe said that the DITSHWANELO started working on Zimbabwe crisis in 2000 when
the “Crisis in Zimbabwe Coalition of NGOs” was formed in Zimbabwe, with which they
cooperate. DITSHWANELO has held seminars and meetings with diplomats in the sub-region
to sensitize them on the Zimbabwe issue, including the commemoration of the Operation
Murambatsvina demolition of settlements. In 2007 they had a joint project to look at the effects
of poverty alleviation in Zimbabwe. She said that Zimbabwe NGOs are working on serious
efforts towards an economic recovery plan for Zimbabwe.
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71. She also stated that the majority of Zimbabwean migrants are economic migrants and not
political refugees. The law however does not recognize economic migrants; it requires them to
acquire proper documents before they can get jobs in Botswana. She noted that the
Government cannot change the laws of Botswana to suit Zimbabweans and their present
situation. She said that there has been a drop in the deportation of illegal Zimbabwean
migrants as a result of softening of attitudes by government towards them. DITSHWANELO
has played a key role in this new trend by sensitizing the local population on the plight of
Zimbabweans especially after the March and June 2008 elections. She said that the level of
violence in Zimbabwe ignited the sympathy of the citizens towards Zimbabweans generally.
72. Concerning pressure on social and economic infrastructure, she said that DITSHWANELO is
disturbed by the non provision of antiretroviral medications to non-Botswana and this has
affected migrants who do not have access to these medications because they cannot afford
them.
73. She also said that the Government has a poor record of domesticating international and
regional human rights instruments to which they are parties.
MEETING WITH RETENG
74. The delegation also held a meeting with two representatives of RETENG in their offices.
RETENG is a multicultural coalition non- profit organisation made up of seventeen cultural
organisations, which work to promote the linguistic and cultural rights of the unrecognized
ethnic groups in Botswana.
75. The Commissioner explained the work of the African Commission and the purpose of the
mission. He said that the African Commission has a working group on Economic, Social and
Cultural Rights, and gave brief explanation about this mechanism.
76. They indicated that they have not been working on Zimbabwean migrant issues but have a fair
knowledge of what has been happening in the country regarding the Zimbabwe migrants. One
of the representatives said that there has been a large influx of migrants into the country and
as a result, citizens complained of jobs being taken by the Zimbabwe migrants. He
acknowledged the fact that Zimbabweans are very hardworking people and are prepared to
take less pay than a Botswana citizen will accept, for more work.
77. The Commissioner wanted to know if the inflow of migrants has influenced an increase in the
crime rate in Botswana and if there is xenophobia towards Zimbabweans. The representative
responded by saying that there is an increase in the crime rate, but this should not be
attributed to the Zimbabweans only, because Botswana citizens also commit crime. However
the presence of more military officers in the country has curbed crime to a large extent, but
was creating a worrisome security situation in the country. He stated further that there have
been situations of hostility towards Zimbabweans in some local communities, especially when
a crime has been committed, which could not be generalized throughout the country.
15
MEETING WITH MISA (Media Institute of Southern Africa) – BOTSWANA
78. The delegation met with some members of the MISA in their office. The Commissioner started
by introducing the African Commission and its mandate to the members present and also
explained the objectives of the mission.
79. One of the representatives observed that the Government of Botswana had taken a different
perspective on the political situation in Zimbabwe, from the “quiet diplomacy” approach
adopted by other SADC states, ( ie; by boycotting the SADC summit due to take place in South
Africa, during the subsequent weekend.) He commended the Government position as “positive
and refreshing.”
80. Talking about the Zimbabwean migrants in the country; he noted that there is a huge influx of
Zimbabweans into the country, which increased noticeably especially after the Zimbabwe
Presidential run-off elections. Botswana is a small country and is overwhelmed by the burden.
A lot of migrants are unqualified and are often found in several parts of the country seeking
jobs. The Government has not changed its immigration laws to accommodate the situation of
the Zimbabweans, the law applies to foreigners in general and it requires that work permit
should be applied for and obtained before any foreigner can work in Botswana. It is not likely
that the law will be changed specifically for Zimbabweans.
81. Describing the history of Botswana immigration policy since the days of the anti-apartheid
struggles in South Africa, he said that the Dukwe refugee camp was built during the crisis
period in South Africa, for South African refugees. This is where most of the Zimbabwean
migrants and refugees are accommodated now. Presently, a lot of Zimbabwean skilled
professionals are able to get jobs in companies and parastatals companies in Botswana.
These skilled migrants are competing for jobs with the locals and this poses a lot of problems.
However there are also a lot of illegal migrants found in most parts of the country. The locals
do not have any problem with them unless there is a perception of crime being committed.
Their approach is generally one of sympathy and acceptance.
82. Zimbabwean artisans (skilled and semi-skilled) are better workers than their Botswana
counterparts and are employed illegally. The Government however recently made
concessions, which allows Zimbabweans to be employed as farm workers, provided that the
employers procured the required work permits. In the northern border communities, the level of
tolerance to Zimbabweans is now low, due to the increased crime rate in those areas.
83. The Commissioner asked if there is awareness creation by the Government and NGOs, to
prevent a wrong perception of migrants by the local population.
84. The representative replied that there is a problem of profiling of criminal acts; a lot of these are
attributed to the Zimbabwean migrants. He cited a number of factors responsible for the
challenges posed by the present situation:
1) The number of migrants in the country now far outnumbers those who were in the country
during the Southern African liberation struggles.
16
2) The Government does not recognise the migrants as refugees and this creates confusion
in the minds of citizens.
3) The needs of the migrants are the same but the circumstances in the current situation are
different.
4) SADC has not helped the situation as it is.
85. He said that the refugees in Dukwe camp prefer to be integrated into the communities. The
Citizenship Act 1982 also restricts access to citizenship. He noted that the NGOs in Botswana
are too weak to make a significant impact. He noted that DISHWANELO is a lone voice and in
spite of doing a lot of work, have not been able to deal with all human rights situations. There is
also a challenge in the way human rights are viewed in Botswana, most citizens do not
understand the concept.
86. The country is also going through a transition period into modernization, a lot of money has
been spent on education and there are a lot of graduates without jobs.
87. The Government has not domesticated the international and regional human rights
conventions. He stated that the new Government must be made aware of the importance of
domestication of these obligations from the beginning and not just to pay lip service to them.
88. Commissioner Nyanduga wondered why there has been no human rights education, since
Botswana is a highly literate society.
89. The representative answered that this is because the civil society has not agitated for human
rights education to be included in the school curriculum, this is mostly because civil society in
Botswana lacks the resources to do a lot of human rights work. However, they have made
positive achievements especially in ensuring the gender neutrality in Botswana, the girl-child is
empowered in Botswana. This has a flip side effect, whereby the boy-child ends up being left
far behind in education compared to the girl-child, leaving the male to depend on brawns
instead of brains.
90. He also attributed the lack of sensitization of the society on human rights education to
politicians, due to the inherent characteristic of politics of retaining power, by not informing the
masses of their rights.
Media practitioner’s Bill
91. The MISA representatives took the opportunity to inform the Commissioner of the Media
Practitioner’s Bill which is about to be passed in parliament, which they say will have some
negative implication to freedom of the press, namely government/political interference in the
media and freedom of expression in Botswana. The Bill gives the Minister the power to set up
the Media Council, Complaint and Appeals Committees, without the involvement of media
practitioners. It does not guarantee the protection of sources and access to public information.
It also provides for registration of media practitioners and criminalization of media work which
places the burden of proof on the accused to establish his innocence and excludes a plea of
public interest.
17
92. The Commissioner stated that he has taken note of the concerns of the NGO and media
practitioners and will inform Commissioner Pansy Tlakula, the Special Rapporteur on Freedom
of Expression in Africa, about this situation, since the matter falls within her mechanism.
DAY 3 – 13TH AUGUST 2008
DISCUSSIONS WITH POLITICAL PARTIES
BCP- Botswana Congress Party
93. The delegation visited the office of the Botswana Congress Party and met with the Deputy
Leader and policy development manager of the party Mr. Kesitegile Gobotswang. After the
welcoming the delegation, the Commissioner was asked to state the purpose of his visit to the
Party. The Commissioner introduced the African Commission to the Deputy Leader and
informed him of the purpose of the mission. He stated that he was keen to hear the views of all
stakeholders on the Zimbabwean migrants’ situation in Botswana
94. The Deputy Leader told the delegation that the Government has adopted a policy of
repatriation of “illegal migrants”, Zimbabweans constitutes a bulk of this population of illegal
migrants in Botswana. They are first taken to Francistown Centre for illegal migrants for
processing before repatriation to Zimbabwe. He said that this is not a solution to the problem
because these migrants once repatriated, find their way back into the country almost
immediately. The Government spends a lot of resources annually to maintain the detention
centre at Francistown and to transport these migrants back to Zimbabwe.
95. These illegal immigrants become so either because they do not possess travel documents or
because they have overstayed in the country. Majority of them enter Botswana to find means
of survival and in order to achieve that they require a prolonged stay in the country. He said
that the immigration authorities usually give them limited number of days to remain in the
country. As a consequence, a lot of Zimbabweans who hold valid travel documents prefer to
come into Botswana through ungazzetted points to avoid immigration restrictions. The
Botswana law does not recognise economic refugees and many of these migrants are in
Botswana to escape the economic collapse and difficulty in their country, but cannot be given
any protection in Botswana, because the Botswana Government only assists those who are
trying to escape from political persecution.
96. The Deputy Leader went on to say that Zimbabweans frequently experience arrests and
appearance before the village Kgotla (village meeting place) where cases are presided over by
a Kgosi (tribal leader of chief). Corporal punishment is often meted out on them as is the case
with the local population. The traditional or Kgotla justice system does not allow legal
representation. The fact that they are considered aliens, unfamiliar with the Botswana tribal
justice system and with no legal representation, puts illegal migrants at a disadvantage. Even if
Zimbabweans were to request that their cases be handled by magistrates rather than the
chiefs, they would still be disadvantaged as legal representation is expensive in Botswana. The
problem of prohibitive legal fees equally affects ordinary Botswana citizens. There is no legal
18
aid fund to assist those who may wish to access the Botswana Courts. The procedures are
complicated and without a lawyer, access to justice is very difficult in Botswana.
97. The Commissioner asked about the rationale for retaining corporal punishment despite the fact
that it is considered to be degrading and inhuman.
98. Mr. Gobotswang replied that this has to do with deep rooted cultural beliefs which is very
difficult to change and which is not understood by people who are not within the culture.
Batswana believed that this culture builds a responsible adult in future. It is generally accepted
from the level of the home, schools and up to the justice system. He however, believes that
there have been gradual changes over the years, formerly the lashing was on the bare back
and now it is done on the buttocks, this may mean that it is gradually on its way out. Women
are not subjected to this form of punishment. A committee composed mostly of traditional and
religious leaders has been constituted to investigate problems of moral decay in society and
report on what must be done to correct the situation.
99. He said that, the result of this report can be guessed at this point due to the composition of the
committee, which it is believed will be disposed towards the retention of corporal punishment.
DITSHWANELO is the only NGO which speaks about the inhumanity of corporal and capital
punishment, seeking for its abolition. The BCP has no position on these issues because as a
political party, the wishes of the people need to be considered.
100. He also spoke about discrimination against Zimbabwean migrants and cited the latest case
in August of a terminally ill Zimbabwean national facing possible deportation because it was
claimed that he refused treatment for the multi drug resistant (MDR) tuberculosis. This is a
clear case of discrimination against a Zimbabwean, because such treatment will not be meted
to a Botswana citizen in similar circumstances.
101. He said that following the run- off presidential elections in Zimbabwe, Botswana has
received an increased number of political refugees. Reception centers were put up along
selected places close to the border with Zimbabwe and repatriation of Zimbabweans was
suspended. The position of the Government on Zimbabwean refugees is now different and it
appears that the relationship between the Batswana and Zimbabweans has improved. The
majority of Batswana are sympathetic to the plight of Zimbabweans although they frequently
complain that they are competing for scarce job opportunities.
MEETING WITH THE BOTSWANA DEMOCRATIC PARTY (BDP)
102. The delegation held talks at the office of the ruling party, Botswana Democratic Party
(BDP), and met Mr. Batlang Comma Serema, Executive Secretary of the party and Fidelis
Molao the Political and Administrative Manager.
103. Commissioner Nyanduga briefed them about the African Commission, its mandate, its
work in Africa and the purpose of the mission.
19
104. The Executive Secretary informed the Commissioner that the political party headquarters
deals mostly with administrative issues and are not directly involved in decision making in the
Government. They leave the executive to govern the state and determine issues of policy. The
party holds monthly committee meetings as and when necessary and the annual congress,
where different policy issues are discussed and dealt with. They recently had one such
committee meeting where recommendations were made to the Government. There has
however been no forum whereby the party and the Government has been advised on the
Zimbabwe issue yet. The party has not come up with a formal position on the Zimbabwean
issue.
105. He went further to talk about the Zimbabwe migrants’ issue. He said that the influx is
overwhelming and majority of these are economic migrants, who end up doing unskilled
work/peace jobs. Most of them do not possess the required work permits and always have to
dodge the law enforcement authorities to avoid being caught. There is always the issue of
crime, like burglary and sometimes rape cases, allegedly perpetrated by Zimbabweans.
106. Commissioner Nyanduga asked if there has been an analysis of the level of crime since
the Zimbabweans came compared to what the crime rate was before.
107. He replied that there has been no formal analysis, but agreed that there has been an
increase in the crime rate. He said however this this cannot be blamed strictly on the
Zimbabwean migrants. Sometimes, crime is committed by Batswana and people hide behind
the Zimbabweans as culprits. He said that recently there has been more police presence on
the streets which has brought more confidence to the people and has reduced the crime rate to
an extent.
108. He also stated that, since the elections in Zimbabwe, there has been a change of attitudes
towards the Zimbabwe migrants. The former (Mogae) Government had adopted the “quiet
diplomacy” attitude as regards the political crisis in Zimbabwe, but the new (Ian Khama)
Government has been unequivocal in expressing its displeasure with the Government of
Zimbabwe and taken steps to sensitize the people. This has created more sympathy for, and
has changed the perception towards Zimbabwean migrants.
109. Formerly, illegal Zimbabwean migrants were ferried across the border and dumped back in
their country, but now this is no longer done. The Government has adopted a policy that allows
them to be employed as farm workers if they have proper work permits and skills.
Zimbabweans are usually hard workers and people prefer to employ them for unskilled labour.
This is a symbiotic relationship because the Botswana benefit from the technical know-how
and hard working characteristic of Zimbabweans while they in turn get refuge from Botswana.
110. There are about six reception centres for processing of refugees. Applications for refugee
status have not been turned down and recently, the Foreign Affairs Minister appealed for
assistance from the United Nations and international organisations to help cater for these
immigrants.
20
111. Commissioner Nyanduga wanted to know how has the population dealt with this issue and
what lessons can be learned to avoid xenophobia?
112. The Executive Secretary responded that the attitude of Botswana is that their neighbour’s
house is on fire and there is need to assist and help them out. The Government’s response
has also helped change the peoples’ attitude and the initial petty crime has been curbed to a
large extent because of the presence of military and police patrols throughout the country.
MEETING WITH BOTSWANA NATIONAL FRONT (BNF)
113. The delegation met with 8 members of the BNF at their party headquarters. The
Commissioner briefed them about the work of the African Commission and the purpose of the
mission.
114. The Executive Secretary, Mr. Olebile Gaborone, stated that there had previously been
cordial relations between the Governments of Botswana and Zimbabwe, However after the
recent election in Zimbabwe, the violence and violation of the rights of the opposition by the
ZANU PF supporters, the Government of Botswana openly condemned the whole process.
115.
The implications of the inflow of Zimbabweans into Botswana are as follows:
1) A strain is caused on the economy. There is competition for jobs. This is causing
economic hardships on Batswana. The party is looking into ways of addressing these
issues at the parliamentary level.
2) There is strain on security of the local population. There is also an increase in the crime
rate; the tendency is to blame it on Zimbabweans even where crime is committed by local
people.
116. In the past, Botswana has provided refuge to refugees from neighbouring countries in their
struggle for liberation. It is however difficult to classify Zimbabwean migrants as refugees
because a lot of them are not seeking refuge, they come into Botswana as economic migrants
to work and earn a living for themselves and their families. There are lots of Zimbabweans in
rural areas and all over the country now.
117. The party had asked the Minister of Foreign Affairs to give information on what is being
done to prevent xenophobia in future. Policemen have been drafted all over the country, but
this has not helped the situation. He proposed that it is better to engage the migrants in
dialogue in order to know what their situation is in order to avoid being xenophobic towards all
the migrants. The situation in Zimbabwe is worrisome, the BNF had been friends with ZANU
PF in the past, but their method of handling the politics of Zimbabwe lately, has been a cause
of great concern to the party.
118. Commissioner Nyanduga asked about the composition of the migrant population,
especially of women and children.
21
119. The reply was that generally, the culture if Botswana is that of welcoming visitors and
outsiders. Initially, it was the males who came in as economic migrants to find means of getting
sustenance for their family in Zimbabwe. Political migrants are accommodated in Dukwe
refugee camp and recently there has been an increase in those seeking refuge. Some of the
women do menial jobs to sustain themselves.
120. A lot of money is spent by the Government of Botswana in repatriating the illegal migrants.
Recently, the immigration authorities have extended the period of stay of visitors to ninety
days. This has economic, cultural and moral implications as 90% of them are Zimbabweans.
121. The party is very much against the way politics is being handled by the ruling party in
Zimbabwe, but they would prefer that caution should be exercised on how to restore the
Zimbabwe’s economy, without any imperialist (American and British) interference whatsoever.
BRIEF MEETING WITH THE MINISTER OF DEFENCE, JUSITICE AND SECURITY
122. The Commissioner held a meeting with Hon. D. Ndelu Seretse, Minister for Defence,
Justice and Security, who is also responsible for human rights, and refugee affairs.
Commissioner Nyanduga informed him that the mission was heading to Francistown and
Dukwe to see the detention centre and the refugee camp. The Commissioner also asked the
Minister the following questions:
1) The legal and institutional frameworks are used by the Government to deal with the
refugee issues?
2) What is the Government doing as regards domestication of conventions in relation to the
OAU and UN obligations?
3) What is the impact of the influx of Zimbabwean migrants into the country?
123. The Honourable Minister stated that the Government is currently working on something to
improve the situation of Zimbabwean economic migrants in Botswana. He however stated that
this is dependent on the political situation in Zimbabwe and has to be addressed by the two
countries and international organisations dealing with migration issues such as the IOM. The
measures which the Government wants to take to improve the situation of Zimbabweans
require the input and cooperation of the Zimbabwean Government as well.
124. On the impact of the influx of Zimbabwean migrants, the Minister stated that it has social,
economic and political impact on Botswana. The resources of the Government keep getting
drained. After the illegal migrants get repatriated, once they get to Zimbabwe, the authorities
fine them and the little money or goods they were able to acquire in Botswana are taken and
they are left with nothing, they have no other option than to find their way back into the country,
this goes on and on.
125. The Government has purchased some new purpose- built vehicles for the repatriation of
the Zimbabweans. Now they will be picked with their luggage to ensure they do not come back,
this is an administrative/operational nightmare for the authorities. The Minister said that
repatriation is now coordinated with IOM and the Zimbabwe Government. The migrants are
22
taken as far as their villages. This ensures that whatever items they would have bought in
Botswana arrives safely at their residences.
126. By and large, the people of Botswana are open, sympathetic and tolerant towards the
Zimbabweans as they understand that their situation is not their making. He asked the
Commissioner to meet him again prior to his departure from the country.
DAY 4 – VISIT TO FRANCISTOWN
Visit to the District Commissioner of Francistown
127. The delegation visited Francistown and met Mr. Richard Oaitse, the District Commissioner
who is also the National Chairperson of the Refugee Advisory Committee (RAC), which
interviews asylum seekers, and makes recommendations to the Government. The composition
of the RAC:
1)
2)
3)
4)
5)
6)
7)
District Commissioner- Chairperson
Regional Immigration Officer
Station Commander – Dukwe Prisons Station
Regional Prisons Commander
Dukwe Refugee Settlement Commandant
Police Officer in Charge of the Dukwe Centre.
Representative of the UNHCR( ex officio)
128. Commissioner Nyanduga briefed the District Commissioner about the African Commission
and the purpose of his mission to Botswana, and Francistown. The District Commissioner gave
a brief outline of the work of the National Refugees Advisory Committee, whose main task is to
consider and review applications for asylum, and advise the Minister responsible for refugee
affairs accordingly. The District Commissioner said further that when the Botswana
Government noticed that the situation in Zimbabwe was deteriorating it prepared a contingency
plan for a worst case scenario of a massive inflow of migrants to Botswana. Botswana shares
a 843 kilometer border with Zimbabwe. It had planned to receive about 40,000 refugees. The
Francistown Centre for Illegal Immigrants was constructed to hold people awaiting deportation,
and refugees awaiting processing pending transfer to Dukwe Refugee camp. The total
numbers of refugees who have been assessed are about 750 and recommendations have
been sent to the Minister.
129. In terms of challenges they face, The District Commissioner said that a lot of resources
have been put into catering for the refugees and illegal migrants at the centers. At first, 200,
000 Pula (approximately USD 33,000) was given by the Government for buying erecting tents
in the camps. Secondly another 200,000 Pula was given for food, toiletries, e.t.c., these funds
have already been exhausted. He was hopeful that the assessed asylum seekers would be
granted refugee status and would be transferred to Dukwe camp before there’s need for more
funds.
23
130. The Commissioner asked about the gender and age distribution among the refugee
population.
131. He replied that most of them are children and youth of secondary school age, the ratio
between the male and female group is almost the same. This is explained by the fact that the
militia in Zimbabwe always rounds up the youth, and takes them to camps where they are
tortured and made to go through all sorts of human rights violations. Most of them came into
Botswana after the run-off elections. Others had crossed into Botswana immediately after
voting in order to avoid being caught and tortured for voting for the opposition party. Most
people in the camp are MDC supporters, they have reports of beatings, torture, killings,
disappearance of their parents and arson. They also reported that camps have been erected in
local communities where suspected MDC supporters are tortured and killed, individuals are
fished from the communities and sent to these camps.
132. Commissioner Nyanduga wanted to know what the refugee population was like in
Botswana before the recent influx of Zimbabwean migrants.
133. The District Commissioner answered that most refugees at the Dukwe Camp were from
DRC, Namibia (Caprivi Strip), Angola, Somalia, Eritrea, Ethiopia and, a few from Burundi,
Kenya and Uganda. Some refugees have been integrated in the communities. Those who
have families in the towns were allowed to go and stay with their relatives.
134. Commissioner Nyanduga wanted to know the rationale of retaining refugees whose
countries enjoy relative peace, i.e. Angola, Namibia, Uganda, etc?
135. The District Commissioner said that a lot of these migrants leave their countries due to
lack of stability and when peace and stability is restored in their countries, they still refuse to go
back. They still hold on to their refugee papers, the Government also does not withdraw
refugee papers from the refugees, unless they commit crime or leave the country without
notifying the relevant authorities. The Government also finds out from the UNHCR office if a
country is safe enough for the refugees to return to, but the Government does not pressurize
the refugees to return to their countries. They could be advised that their country is safe
enough to return to and on some occasions, a few of them are selected to visit their country
and they come back to report to the others on whether the country is safe enough to return to
or not.
136. At the center, refugees are kept separate from the illegal migrants. Concerning the illegal
migrants from Zimbabwe, they are usually ferried back to Zimbabwe after being processed.
However, they always find their way back into the country shortly afterwards. The Government
finds this to be expensive but they think this helps to achieve some form of control on the
number of Zimbabwean migrants in the country at any particular time.
137. The IOM (International Organization for Migration) has established offices at Plum Tree
and Beit-Bridge border posts to document these repatriated migrants, transport them to their
respective villages, counsels them and assist them in starting an economic activity which will
help them financially. This process works out for some of them, but it does not work for others,
24
who still find their way back into Botswana and continuously, they are sent back to Zimbabwe.
The vehicles that transport them are purpose-built, with all required facilities to prevent them
from running off in the process of being repatriated.
VISIT TO THE FRANCISTOWN CENTRE FOR ILLEGAL IMMIGRANTS
138. After the briefing at the District Commissioner’s Office, the mission proceeded to the
Francistown Illegal Immigration Centre. Upon arrival at the Camp, the Officer in Charge briefed
Commissioner Nyanduga about the facility, which is a modern camp run jointly by the Prisons
and Immigrations Departments. It is a modern structure built about 10 kilometers outside
Francistown, surrounded by a 10 meter high security fence. Life within the camp is fairly
relaxed, with the migrants walking around freely. The Officer in Charge explained that among
the facilities available is a library. The migrants are provided with three meals a day and can
receive visitors. On that particular day, a number of Somali refugees were visiting Somali
asylum seekers who were due to undergo an interview before the RAC.
139. The Officer in Charge informed the Commissioner that presently, sixty nine (69) officers
were taking care of the camp and an additional eighty one (81) have been requested for and
were in training to join the camp.
140.
He also gave the statistics of the migrants currently within the camp as follows:
Asylum seekers
Political refugees
illegal detainees
Male
49
19
99
Female
7
5
4
Children
6
10
141. At the time the mission arrived at the Francistown Illegal Immigrants’ Centre, the Refugee
Advisory Committee (RAC) was interviewing a group of asylum seekers. There was a total of
24 individuals being interviewed that day, 7 of whom were below the age of 18 years. Among
them were four females, 4 young children/babies. The rest were males and their average age
ranged between the 20s and early 30s..
142. The Commissioner requested to observes the proceedings, and the request was granted.
Afterwards the Commissioner conducted individual interviews with a number of refugees at the
camp.
Extracts from interview with the asylum seekers/refugees
ASYLUM SEEKER 1- 26 years old
25
143. A young man was being interviewed at the time the mission sat in the RAC meeting. He is
a film lighting technician, producer and director from Zimbabwe. Sometime in May 2008, he
produced a play which was to be shown in the cinema. The day this play was to be shown,
members of the CIO came and stopped it. They then took him to a place where he was badly
beaten and left for dead. He was found by some good Samaritans, who took him to hospital,
he was assisted by a number of people to hide from the CIO for some weeks. Afterwards the
Government agents found out that he was still alive and they started looking for him. They
came to his house several times to ask for his whereabouts from his brother, who denied
knowledge of his whereabouts. His lighting equipment worth USD 8,000 was then seized in a
bid to fish him out of his hiding place.
144. Shortly afterwards, he found his way to Botswana with his older brother. Their mother is
originally from Botswana and they have come for refuge in Botswana. He stated that one of the
police officer who arrested him had confessed that he knew that the young man was innocent
but they were under orders to arrest him. He pleaded with RAC, under great emotion, shedding
tears that he wants his equipment restored. He had worked hard to get his equipment when he
was studying in South Africa, and that his career dreams were now in ruin
ASYLUM SEEKER 2 – 24 years old.
145. He said his father was killed at the end of June 2008 by the ZANU PF youths, because he
was a member of the MDC party campaigning for the party during the elections. After the runoff elections, the father ran into hiding, but when he came back home he was taken away by
the youth and killed. Shortly after, he discovered that the ZANU PF youth were looking for him
too, so he ran away and walked to Botswana. He has come to Botswana for safety.
ASYLUM SEEKER 3– 15years old
146. He said that he is in Form 3. His father was involved in politics, as a member of the MDC
political party. He was contesting for the seat of councilor in Gweru local government. His
opponent who lives in the same area, hired thugs to terrorize and make life miserable for his
father and his supporters. The thugs always came to their house and beat up their father in the
presence of his mother and himself. His father however kept on campaigning despite all this.
The boy was assaulted continuously at school and had to stop going to school after some time.
147. Two days before the results of the June election was to be read, the youths came and took
his father away. His mother pleaded on behalf of his husband to no avail. They waited for
almost one week without knowing the whereabouts of his father. They later discovered he had
been killed, when they identified the remains of his father in hospital. After the results were
read, they discovered that the father lost the elections. His mother left for the village shortly
afterwards and he was left all alone at home. He claimed that his auntie who is a ZANU PF
supporter had refused to take him in. He kept on being beaten and taunted by the youth in his
area, and he later ran away. He loitered around the city without food or shelter before he met a
stranger who walked with him all the way to Botswana and arrived on the 25th of July. He did
not know the whereabouts of his mother. He looked vividly traumatized. You did not need to be
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a psychiatric doctor to see the trauma he had suffered. He spoke without any emotion, while
telling the gruesome things he had experienced.
ASYLUM SEEKER 4
148. The Commissioner interviewed a family of seven, a man, his wife and five children aged
13, 9, 8, 4, and a 1 year old toddler. This was another traumatized group of people, who, even
within the confines of the camp, demanded to know the bona fides of the Commissioner, lest
he be a Zimbabwe state agent.
149. The husband, who was the victim of grave torture waited at a distance until when he was
sure, before he could approach the Commissioner. His wife explained their predicament. She
said that her husband, a cleric, was assaulted, and tortured because he was an MDC
sympathizer. He left Zimbabwe on a stretcher, he could not walk or seat, because his rectum
had been pulled out after a hard object was forced through his anal passage during torture.
She said that they were grateful to Botswana for the sanctuary even before they were granted
asylum. Her husband had received medical treatment upon arrival in Botswana.
150. She said that her husband was previously the bread earner, but was physically
incapacitated, and cannot work. On her part, she has a heart condition and cannot work to
sustain the family of 5 young children. She said that the ration they receive at the camp was
inadequate.
REFUGEE 1
151. The mission met a couple from Zimbabwe, in their mid 40s, who informed the
Commissioner that they had previously been granted refugee status and settled in Dukwe.
Problems arose when their fellow Zimbabwe refugees accused them of being Government
informers. One of them had worked for government prior to fleeing Zimbabwe. When the
allegations reached the camp officials, they were arrested and locked in a maximum security
prison for a month and a half without trial. They protested their innocence to the prison
authorities who sent to them back to the RAC for a review of their status. They brought this
matter to the attention of the Commissioner so that the may intervene on their behalf against
refoulement, because they feared that they might be repatriated to Zimbabwe. The
Commissioner took up the matter with the UNHCR Representative upon arrival in Dukwe, and
proposed that UNHCR intervenes on their behalf so that they may be resettled in a safe third
country.
REFUGEE 2
152. The Commissioner met a male Somali refugee at the Francistown Centre, who was taking
care of relatives, who had yet to receive refugee status. These included two girls aged
between 16 and 18, whose applications were being reviewed after initial rejection. The girls
had arrived unaccompanied in Botswana having gone from Somalia, through Kenya, Tanzania
and Zambia. They claimed that they had been tortured during transit in the three countries by
security agencies, who had taken their money and had even raped them. He was worried that
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the RAC might turn down the application because of suspicion that this was a case of human
trafficking, and secondly that Botswana was not the first country of asylum.
VISIT TO THE DUKWE REFUGEE CAMP
153. After the visit and interviews at Francistown, the mission traveled the 120 kilometer journey
to Dukwe to visit the refugee camp. The mission had briefly met the Dukwe Camp
Commandant during the RAC meeting at Francistown. The Commissioner and the legal officer
paid a visit to the office of the UNHCR at the camp. Upon arrival they were received by Ms.
Marcela Rodriguez Farrelly, Head of the field office.
154. Commissioner Nyanduga briefly explained the mandate of the African Commission on
Human and Peoples’ Rights, and the purpose of the fact finding mission to Botswana. He
inquired about the situation facing refugees generally at the camp, statistics, and the
challenges faced on a daily basis in dealing with the refugee issues.
155. Ms. Rodriguez informed the Commissioner that before the 30 th of April there was a
population of about 1900 refugees in the camp. She said that there were about 2800 refugees
throughout Botswana. The main caseloads by country were Angolans, Namibians, Rwandans,
Burundians, the Democratic Republic of Congo, few from Eritrea and Kenya. There were about
120 Zimbabweans then.
156. Responding specifically on the Zimbabwe refugees, she said that there are 767 newly
arrived Zimbabwean refugees in the camp totaling about eight hundred eighty seven (887)
Zimbabweans. Presently, the statistics are as follows:
767- Newly arrived refugees,
433- Males
334- Females
80- Families
They are mostly comprised of single men and women, 46 unaccompanied minors, mainly
from areas surrounding Blanchie and Bulawayo, and they came between 30th April and 31st July
2008. There have also been cases whereby parents came from Zimbabwe and withdrew their
children’s application for refugee status and returned them to Zimbabwe.
157. She said that the response by the Government on the reception of these immigrants has
been good.
158. She stated further that the camp is run by the Government of Botswana. The UNHCR
provides technical and logistical support only, unlike other countries where refugee camps are
run by the UNHCR.
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159. She explained that the camp has a well developed infrastructure for providing refugees’
needs. There is one primary school in the camp which has four hundred and ninety (490)
pupils. The secondary school has eighty seven (87) students. The teachers are Batswana.
160. The nursery school is run by the Botswana Red Cross Society. It was established by the
UNHCR. There is a clinic which has a permanent resident doctor who was provided by the
Government. The daily intake of patients in the clinic is low, twenty per day. There are no
cases of malnourish.
161. The Botswana Red Cross provides counseling to refugees who have had traumatic
experiences. There is a social worker who is a psychologist and HIV expert, who provides the
counseling. The Red Cross also runs a youth centre where children and youth receive extracurricular activities, teaching is mostly focused on HIV awareness and testing promotion.
162. The UNHCR formed an organisation known as PMV (Professional Management Venture),
which gives vocational training to refugee students who have graduated from the secondary
school. This is to make them self- sufficient, they learn vocations skills, like catering, carpentry,
brick molding etc.
163. The Government of Botswana signed the1951 Geneva Refugee Convention, with two
reservations against freedom of employment and freedom of movement. The Government is
however flexible and has provided work permits to a few of refugees, who are qualified in
certain specialised skills. The Dukwi Refugee camp’s holding capacity is 20,000 people. She
said that 44 Angolans have been naturalized, after living as law abiding individuals in the
country for 10 years, and have been locally integrated in the Dukwe village and have land.
164. There is also a police station in the camp which serves both the camp and the
neighbouring village. The same goes with the schools. Food is provided by the UNHCR to new
arrivals. Food is also given to the home-based patients (terminally ill), the Red Cross takes
care of them.
165. The challenges which the UNHCR faces is the backlog of asylum seekers at the
Francistown detention centre, who were yet to be brought to the refugee camp. However, the
RAC convenes more often (at least once a month), this has reduced the backlog to a large
extent.
166. Another challenge is that there is no appeal mechanism when an application for asylum is
rejected. The RAC sits to review its own decision. It may not be objective. Presently there are
460 cases awaiting review, in respect of both refugees, and rejected asylum seekers who
await repatriation to their countries. However, a few had their cases reviewed by the RAC and
approval for refugee status was granted.
167. She noted that recommendations by the RAC are not prima facie guarantee of grant of
status because the final word rests with the Minister responsible for refugee affairs.
168. The Commissioner asked how juvenile asylum seekers are treated. Ms. Rodriguez replied
that minors are treated favourably, however where there are issues bordering on credibility,
they are left at the camp pending clarification of these issues.
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169. Another challenge is lack of provision of antiretroviral life saving medicines (ARVs) to
refugees, since its Government policy that it does not give free medical treatment to foreigners.
170. This is still the biggest challenge to the UNHCR, that even when it has capacity it cannot
make such medicine available until when a policy direction on the issue is given by
Government. However, the Bishop of Francistown has a programme whereby HIV infected
refugees are given the ARVs. The UNHCR has been lobbying government for inclusion of
serious cases in the programme.
171. The other challenge relates to water supply in the camp for daily domestic use and for
irrigation. A number of refugees tend vegetable gardens. She was happy to note that at the
time of the mission visit, a Government official was on site to discuss details about connecting
an additional water supply pipe, which is a work in progress. The UNHCR provided funding for
water and the Government will implement it. Presently there are 4 water stand pipes which
have to serve 100 people each.
172.
There is also the challenge of shortage of classes in the secondary and primary schools.
173. Commissioner Nyanduga asked if there is an assurance of sufficient security on the camp.
Ms. Rodriguez replied that there was no cause for concern regarding security, because the
police are doing a good job. The only case of a suspected informer is currently being
investigated.
MEETING AT THE FIELD OFFICE OF THE BOTSWANA RED CROSS
174. The delegation met with Executive Secretary, Mrs. Mabel of the Botswana Red Cross
Society, who was also visiting the camp at the same time. Ms. Boltumelo Segwabanyane, the
Red Cross project coordinator, on refugee health and psycho-social support of the Botswana
Red Cross Society, briefed the Commissioner about the work of the Red Cross society on the
camp.
175. She stated that the Botswana Red Cross has been in partnership with the United Nations
since June 2001. Their areas of concentration in the camp are:
1) Preventive health services especially on HIV
2) Support group for people living with HIV/AIDS
3) Psycho-social services
4) Early childhood care- pre-school
5) Youth centre (housed within the pre-school)
6) Care of orphans and vulnerable children (OVCs)- providing life skill development
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7) Home based care services –for terminally ill persons. She said that presently there are 36
to 40 people HIV infected living with AIDS, the majority of cases, 90% of them die due to
lack of provision of the ARVs. The argument they hear from some Government quarters is
that if these ARVs are provided to the refugees, there are no guarantees that the ARVs will
continue to be administered to them upon return to their countries. Secondly it is costly to
Government to cover non citizens. The UN and the United States have promised to assist
in some sort of funding.
176.
She stated that only camp based refugees are getting free medical care.
177. The Commissioner and legal officer were then taken on a tour of the camp by the UNHCR
field officer and Mr. Ross Sanoto, the Director from the Ministry of Defence, Justice and
Security.
Lastly, before leaving the camp, the Commissioner had a brief interview with two refugees, one an
80 year retired Colonel from the Siad Bare regime in Somalia and an engineer from Uganda. The
Somali refugee complained about lack of proper diet, he is diabetic, and is in ill health due old age.
The Ugandan refugee, who has been lived on the camp for the past 7 years, said that the present
challenge is the fact that there is no integration of the refugees into the society. A lot of them are
skilled, but they cannot apply their skills in the camp or elsewhere in Botswana.
DAY 5- 15TH AUGUST 2008
MEETING WITH THE MINISTER OF DEFENCE, JUSTICE AND SECURITY
178. The Commissioner met with the Hon. D. Ndelu Seretse, in his office in the presence of the
Permanent the Secretary for Defence, Justice and Security, the Deputy Permanent Secretary
and the Director Mr. Sanoto.
179. The Commissioner briefed the Minister on the mission to Francistown and Dukwe. He also
mentioned the concerns of the asylum seekers and refugees which were expressed at the two
camps.
180. With regard to the problem about non employment of skilled refugees, the Minister said
that something is being worked on whereby those with skills will be allowed to work, and this
will be done on a case by case basis.
181. As regards the provision of ARVs to refugees, the Minister said that a policy to assist HIV
patients has been approved in cabinet, on the condition that there will be assistance from the
United States. The Ministry of Health has written to the Government of the United States but
has yet to receive a reply. Itis not that the Government is unwilling to provide these ARVs, but
it is the cost implication of doing so that prevents the Government from providing them to
foreigners.
182. On the absence of an appeal mechanism for asylum seekers, the Minister explained to the
Commissioner that granting of refugee status was an executive function not a judicial one. That
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is the reason that the Botswana refugee law does not give room for a higher body to whom an
asylum seeker can appeal.
183. On domestication of International Conventions, the Minister informed the Commissioner
that Botswana does not automatically domesticate conventions just because it is fashionable,
but she looks at how affordable it is to domesticate these conventions and its implications, to
ensure that the country is able to deal with attendant effects of domestication.
184. The Commissioner informed the Hon Minister that it is important for Botswana to adopt
best practices from other countries, such as the need to provide for an appeal process once an
application for asylum is rejected by the RAC. This must include the right for the High Court to
examine the RAC decisions by way of judicial review
SHORT TRAINING ON STATE REPORTING
185. Since the Government of Botswana has promised to submit its initial and periodic report to
the African Commission by the first week of November 2008, the Commissioner decided to
give a short training on state reporting. The Director, Ministry of Defence, Security and Justice,
and three lawyers from the office of the Attorney General attended the short training.
186.
CONCLUSION
The delegation of the African Commission met two senior ministers and a cross section of
Government officials in the Republic of Botswana, and held discussions in a frank and candid
manner, which provided some measure of understanding of the situation of refugees in Botswana
and the particular human rights challenges affecting Zimbabwean migrants in the country, and
Botswana, its government and people. The government was also very cooperative with the
delegation most especially when Commissioner Nyanduga requested that the delegation should
meet with the political parties and NGOs in their respective offices instead of meeting them at the
Ministry of Foreign Affairs as had been scheduled.
The delegation was able to meet with a few civil society organisations in Botswana who also gave
their view on the human rights situation of the Zimbabweans in Botswana. The delegation also
noted the importance which the Government placed on the submission of their periodic report by
the next Ordinary Session.
III. OBSERVATIONS
193. The general observations made by the delegation through meetings and investigation on the
situation of refugees and Zimbabwean migrants in Botswana are as follows:
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I. There is a large influx of Zimbabweans in Botswana due to the political and economic
instability in their Country, more so after the June 2008 run-off elections.
II. There is no xenophobia towards Zimbabwean migrants due to the fact that the
Government has taken a firm position regarding the political situation in Zimbabwe, which
has, as a result, created sympathy for Zimbabwe migrants in Botswana. The Botswana
Government has adopted a humane rather than a legalistic approach towards illegal
Zimbabweans migrants, especially after the run-off elections.
III. The high influx of Zimbabweans has caused a strain on the economy of Botswana and
repatriation of illegal migrants has serious financial implication on the resources of the
Government of Botswana.
IV. There is huge financial pressure on the Government in managing the various centres for
processing and repatriating illegal migrants.
V. Most of the migrants are economic migrants. The Government of Botswana does not
recognise economic migrants, which presents a challenge to both the Government and the
migrants.
VI. There is a perception that there is an increase in the crime rate due to the large number of
Zimbabwean migrants in Botswana. The adoption of tacit policy by the Botswana
government, to encourage the employment of Zimbabwe migrants on menial “peace jobs,”
and the increased presence of police and army patrols, has contained the potential for
xenophobia, thereby enhancing the safety of both the migrants and the population.
Batswana have taken the view that the Zimbabwe political and economic crises, which
cause the flight, are temporary phenomena.
VII. There is a perception that large influx threatens the jobs of Batswana, which sometimes
causes disaffection towards Zimbabweans. On the positive side though there is a general
view that the Zimbabweans are hardworking and skillful.
VIII. The laws of Botswana regarding immigration applies to all foreigners and the Government
cannot change its laws to specifically address the special circumstance of Zimbabwean
migrants who have to secure work and residence permits in order to avoid deportation..
IX. The Government of Botswana has a policy of not providing Anti- Retroviral Vaccines
(ARVs) to foreigners and this affects Zimbabwean migrants living with HIV AIDS.
X. The Government has not domesticated a number of international and regional human
rights conventions to which it is a party, which renders them ineffective in the country.
XI. The majority of the Batswana people do not have a grasp of the concepts of human rights
and hold on to the cultural value system, which affects foreigners who do not understand
this, especially the Zimbabweans.
XII. Access to justice in some cases is difficult due to the fact that foreigners are unable to
afford legal representation before the Courts.
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XIII. The Government’s refugee policy and legislation is restrictive. However, there has been an
improvement in the work of the Refugee Advisory Committee, through an increase in the
frequency of the RAC’s meetings, and the material support given by government to the
refugees through the UNHCR at Dukwi. The process of interviewing asylum seekers,
processing repatriation of illegal migrants is transparent.
XIV. Programmes for integration of refugees into the communities and ways of putting their
skills into use are not available in the Dukwe refugee camp, this causes dissatisfaction and
restlessness of refugees in the camp.
IV. RECOMMENDATIONS
194. The African Commission commends the Government and people of Botswana for the
hospitality granted to the Zimbabwean migrants and ensuring that they are treated in a humane
manner, as a short term solution to their predicament, even though their entry into the country is in
most cases against the immigration laws of Botswana.
The African Commission on Human and Peoples’ Rights therefore recommends to the
Government of Botswana the following:
I. Take measures to domesticate international human rights instruments to which it is a party
especially the African Charter on Human and Peoples’ Rights and to consider removing its
reservations on freedom of movement and employment under the 1951 UN Geneva
Convention on Refugees.
II. Sensitize local communities about the challenges facing migrants, including awareness
creation about the basic human rights of migrants.
III. Ensure that the adoption of law and order measures to deal with the influx of migrants, ie
arrest and repatriation of migrants, are implemented in a humane and non arbitrary
manner, with due regard to due process.
IV. Empower civil society, by enabling it to play a more prominent and active role in the
protection of migrants.
V. Protect migrants against exploitation and violation of their basic labour, and human rights,
due to their vulnerability, by ensuring that the concession granted for “peace jobs” are not
abused by the population.
VI. Undertake measures to educate migrants about their basic rights and fundamental
freedoms.
VII. Concretize and implement policy for the provision of ARVs to refugees, and coordinate
with the international community, i.e. donors and the UNHCR to make ARVs available to
HIV/AIDS infected migrants.
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VIII. Integrate refugees who wish to acquire nationality, and explore ways of allowing refugees
possessing requisite skills to be employed.
IX. Allocate resources, and where possible, seek assistance to provide adequate resources to
the various services at Dukwi, for children, youth, health facilities, and vocational training
to refugees.
To Civil Society
X. Call on civil society organizations, to enhance their role in working on migrants issues.
To the African Union
XI. Convene a pan African conference to discuss the problems of migration.
CONCLUSION
The Commission wishes to thank the Government and people of Botswana for the arrangement,
hospitality and facilities put at the disposal of the delegation, which made the mission possible and
a success. The Commission thanks all the Honourable Ministers, the Attorney General, Permanent
Secretaries, other senior government officials in Gaborone, Francistown, and Dukwi, leaders of the
political parties, members of civil society, media, the asylum seekers, migrants and refugees
enable the mission to meet its objectives.
Special thanks go to the government driver, who capably took the mission to various engagements
including the journey to Francis town and Dukwi and back to Gaborone, without any hitches.
Without their support the mission would not have realized its objectives, and the insight into the
challenges posed by the problems of migrants in Botswana, which is captured n this report, which I
humbly submit to you.
Abuja, Nigeria
November 2008.
Names of asylum seekers and refugees who were interviewed are not included
pursuant to the rule of anonymity. Names can be verified at the Secretariat of the
Commission.
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