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BOTSWANA CONTEXT

INTRODUCTION
Geography & socio-economic growth
Political system & democracy in Botswana
            Democracy in practice
Botswanas legal system
            ‘Received’ law
            Customary law
Human rights in Botswana
Constitution of Botswana
Vision 2016
International & regional instruments
            International instruments ratified by Botswana
Poverty & affordable legal advice
Access to justice in Botswana
Poverty in Botswana:  UNDP report 2005

 

Botswana, an arid, land-locked country in the middle of Southern African, has achieved strong economic growth and development since its Independence from Britain in 1966, after being a British protectorate since 1885.  It has much to be proud of in its human rights achievements, but there is also considerable room for improvement, from the need to revise the Constitution to protection of the rights of minorities ranging from children to sexual minorities.

This section provides:

DITSHWANELO’s responses to many of the issues raised in this section are detailed in specific sections of Human Rights Issues.  Other ways in which we are addressing these issues are:

  • Advocacy activities to encourage the government to:

    • Commission a comprehensive review of the Constitution of Botswana

    • Improve the quality of democracy in Botswana 

    • Sign or ratify those international and regional instruments to which Botswana has not yet committed herself for review for possible action; those instruments which have been signed with reservations about specific articles; to domesticate the provision of the instruments already signed into Botswana law; and to institute transparent consultative and participatory process in signing and domestication of instruments, to enable Parliament, civil society and the public to be constructively engaged.

    • Apply the principles and standards of these international instruments by developing a rights-based approach to development and poverty alleviation, by abolishing the death penalty as well as corporal punishment in schools and prisons, by making the changes recommended by the review of the Children’s Act , reviewing the Chieftainship Act, Tribal Territories Act and other laws which discriminate against ethnic minorities, de-criminalising homosexual acts as detailed in gay rights, and the many other modifications identified and detailed in Human Rights Issues.

  • Work with the government and the legal profession to identify affordable and feasible ways to improve access to justice in Botswana.

  • Meanwhile, we provide a paralegal service to provide advice to those earning less than the minimum wage.

  • Support the work towards the achievement of Vision 2016.

Some useful sites providing information about the history and development of Botswana include:

GEOGRAPHY & SOCIO-ECONOMIC GROWTH

map

Geography: The Republic of Botswana is landlocked and straddles the Tropic of Capricorn in the centre of the Southern African Plateau, at a mean altitude of 1,000 metres above sea level. The total land area is 581,730 square kilometres, about the size of France.  National Parks and Reserves comprise 17% of the total land area in Botswana, one of the highest in the world, with a further 11% of the land declared as Wildlife Management Areas.

With a human population of only some 1.7 million, Botswana is the third least densely populated non-maritime nation in the world; only Mongolia and Namibia are less so.  The urban population accounts for about 50% of the total population and the majority of the population lives along the eastern corridor in some of the largest traditional towns in Southern Africa.  Over 50% of the population lives within 100 kilometres of the capital, Gaborone.  The rest of the country is sparsely populated.  For example, the western region, comprising the Gantsi and Kgalagadi Districts, where the majority of the Basarwa or San live, has only some 7% of the human population, yet it makes up 40% of the land area.

The population contains significant diversity in language and culture. Approximately 60% of the people are of Tswana heritage, 3-4% of the population comprises the Basarwa or San peoples, other groups include the Herero, Kalanga, Mbukushu and Yei peoples.

The capital, Gaborone, is in the southeast, only some 15 kilometres from the South African border.  Kasane, the location of DITSHWANELO’s Outreach Office, is in the extreme north-east where the borders of Namibia, Zambia, Zimbabwe and Botswana converge.  

Socio-economic growth:  Botswana’s real GDP growth rate averaged 9.2% per annum over the three decades 1966-96, which was the highest sustained growth rate in the world and has been matched only by China’s performance in the 1990s.  The country has advanced from being one of the ten poorest countries at independence in 1966, to being one of only four upper middle income countries in continental Sub-Saharan Africa, according to the World Bank, July 2005.  However, this growth rate has been reduced by the cost of combating HIV/AIDS.  Furthermore, the growth has been driven by mining without successfully diversifying the economy, making Botswana highly vulnerable to its diamond supply and the world market for diamonds. The exploitation of diamond resources was realised through the pragmatic, open market financial and economic policies of the government through investing the non renewable proceeds of mineral extraction in both infrastructural and, more importantly, human resources development.  Nevertheless, the

mining has generated little employment (only 5% of Botswana’s total employment) and has provided little direct contribution to poverty reduction.

For most years from the mid-1970s to the early 1990s Botswana was the recipient of more development aid per capita than any other developing country. However, on attaining "middle income" IBRD/OECD status, virtually all bi-lateral donors and most multi-lateral funding agencies phased out direct programmes of aid to the Government of Botswana (GOB), although continuing reduced funding through regional agencies such as SADC. Many NGOs in Botswana, have seen a dramatic decrease in bi-lateral external funding without any increase in multi-lateral regional funding.

Despite having attained ‘middle income’ status, there continues to be a high level of Poverty in Botswana, as detailed in our summary of the United Nations Development Programme’s Botswana Human Development Report 2005 .

POLITICAL SYSTEM & DEMOCRACY IN BOTSWANA

Some of the following summary is taken from the National Integrity Systems, Country Study Report – Botswana, 2001, by Professor Kwame Frimpong, University of Botswana.

At Independence, it was decided that Botswana would be established as a unitary state, rather than a federation of Tribal kingdoms.  The written Constitution provides for separation of powers between the executive, legislature and the judiciary.  Elections are held on regular basis, every five years and the Office of Independent Electoral Commission (IEC) exists to ensure free and fair elections. The Constitution guarantees the independence of the judiciary and individuals are able, in practice as well as law, to sue the government or officials of government.

The Executive consists of:

    • The President 

    • The Cabinet

    • Ministries and Departments

    • The Police

    • The Botswana Defence Force; and
    • Parastatals

The President is both the Head of State and Head of Government. He operates with the assistance of his Vice-President. The President is ex officio a member of the National Assembly. All bills from the National Assembly have to go to the President for assent in order to become law.

DITSHWANELO shares the concern that the power of the President is greater than that of Parliament. This is for instance illustrated in the deportation case of Australian Professor Ken Good on 31 May 2005.
In this case it was  unfortunate that the issue of the reliability of the source upon which the President relied in declaring Good a prohibited immigrant could not be challenged. DITSHWANELO therefore would like to urge the Government to review the process for declaring persons prohibited immigrants. At present, the President's sole discretion in making such a declaration and his not being required to provide any reasons for his determination undermines the fundamental rules of natural justice and human rights. Anyone accused of an offence has the right to present his or her side of the story (audi alterem partem rule). In addition the Government of Botswana should also be urged to implement its international treaty obligations by domesticating their provisions into domestic law. Botswana is a party to the International Covenant on Civil and Political Rights (ICCPR), which requires a hearing before a person is declared a prohibited immigrant. Because the Government has yet to create domestic laws which are in line with the ICCPR provisions, something it is required to do after committing itself to the covenant, the Court was not obliged to give the ICCPR provisions any significant weight.
Since 1997 presidents have been limited to two terms in office, which the current president shows no signs of challenging.  A key concern which DITSHWANELO has, however, is the automatic succession of the Vice President to Presidency following the resignation or death of the President.  DITSHWANELO calls for a review of this practice while it provides certainty in terms of continuity of governance practices, it weakens the validity of a president whose position was obtained by turn of events and not by specific choice of events.

There is one Police Force for the country. The Police Department is divided into three divisions, namely North, South Central and South. The divisions are headed by Divisional Commander. The Police services are divided into eight branches namely; General Duties, Criminal Investigation Department, Special Support Group, Special Branch, Traffic, Telecommunications and Transport, Police College and Departmental Management.

The Legislature is made up of the President and the National Assembly, constituting Parliament. The National Assembly consists of the following:

  • The current National Assembly, formed following elections held on 30 October 2004, has a total of 63 members.
  • 57 members are directly elected in single member constituencies using the simple-majority (or First-past-the-post) system for a term of five years.
  • Four members are co-opted while the remaining two (the President and Attorney-general) are ex-officio.
  • The Speaker of the National Assembly, where the person elected to that Office was not a member of the National Assembly at the time s/he was elected the Speaker. The current Speaker is not an Elected Member of the National Assembly.

As an ex officio member of National Assembly, the President is entitled to speak and vote “in all proceedings before the National Assembly”. This aspect blurs the whole concept of separation of powers. However, in debates of bills the practice which has evolved is to make it the function of the National Assembly.

Cabinet Ministers are also members of the legislature, which reduces separation of powers and makes the executive more powerful than the Legislative and the Judicial powers.

The National Assembly operates as a Single Chamber. There is, however, a provision for a House of Chiefs.  Since the Constitutional Amendment Bill (2005) this House has become known as the ‘Ntlo ya Dikgosi’, which is Setswana for ‘House of Chiefs’, the name change being an attempt to remove the negative connotations of the English word ‘chief’. 

The House of Chiefs is composed of fifteen (15) members as provided in the constitution as follows: Eight ex-official members who are the chiefs from eight tribes

  • Four elected members, and these are elected every five years or when a vacancy occurs. They are elected from within the four districts namely, North East, Chobe, Kgalagadi and Gantsi.
  • Three specially elected members are elected by both the ex-officio and the elected members in the House of Chiefs.

The role of the Ntlo ya Dikgosi is purely advisory. However, any Bill which has the effect of amending the Constitution or affecting the powers of Chiefs cannot be proceeded before the National Assembly unless it has been referred to the Ntlo ya Dikgosi after it was introduced before the National Assembly (section 88(2) of the Constitution). The Dikgosi have complained, however, that they are presented with bills which have already been agreed. 

For details of DITSHWANELO’s concerns about the continuing ethnic bias in the proposed Ntlo ya Dikgosi, see The Constitutional (Amendment) Act 2005

Democracy in practice

Currently there are 7 political parties:

table
Source: Wikipedia Sept 2007

The BDP has been the ruling party since independence in 1966 and has dominated the Botswana political landscape since then. The BNF has been in opposition since independence.  In the 2004 elections it offered credible opposition, winning 12 out of the 40 Parliamentary seats.

There is currently a First-Past-the-Post (FPTP) electoral system a voting system in which a single winner is chosen in a given constituency by having the most votes, regardless of whether or not he or she has a majority of votes. There have been calls for electoral reform, including a motion tabled by the opposition early in 2006, which have been rejected by the ruling Party who fear that they will lose power under such a system.  President Mogae, himself, is on record as supporting PR as a more inclusive system. 

The Legislature is supposed to be separate from the Executive, but because the same ruling party has constantly controlled the Legislature in the 40 years since Independence, it has become virtually the wing of the Executive.  Its effectiveness is therefore weakened.   

There are, however, some key areas in which, because of the constitutional requirements or the strength of the opposition, Parliament still wields sufficient power to control any possible excesses by the Executive.  For instance, Parliament has to approve the national budget which has to be presented to the National Assembly by the Minister of Finance and Development Planning (s.119 of Constitution). Even if it is a matter of mere formality the National Assembly does debate the budget and offers criticisms and makes concrete suggestions. 

The opposition has also been forceful in compelling the government to take some concrete measures. It is even not uncommon for the government’s own backbenchers to side with the opposition to defeat government’s proposal.  As an example, when the government proposed to privatise state-owned businesses, a large number of members of parliament from the ruling party sided with the opposition to win concessions on the government proposal.

Parliament has on some occasions challenged the actions of Ministers and forced investigations by Commissions of Inquiry.  An example is the Report of the Judicial Commission of Inquiry into State Land Allocations in Gaborone published on Friday 13 August 2004. In some instances, the Directorate of Corruption and Economic Crime is already engaged in investigations, while in others, the Commission recommends that further investigations into land allocations already made, be conducted.
DITSHWANELO, however remain deeply concerned that in those cases in which the Commission has found no evidence of irregular action by the applicants who have nevertheless benefited from the irregular action of officials, no meaningful sanction may be possible.

The Parliament has also had some victories over Cabinet, for example in stalling the proposed liquor trade regulations.

BOTSWANA’S LEGAL SYSTEM

Some of the following summary is taken from the National Integrity Systems, Country Study Report – Botswana, 2001, by Professor Kwame Frimpong, University of Botswana.

 

As noted under Political System & Democracy Botswana’s constitution provides for a separation of powers between the executive, legislature and the judiciary.  The Constitution guarantees the independence of the judiciary and individuals are able, in practice as well as law, to sue the government or officials of government.

The legal system of Botswana is a mixture of Romano-Dutch and English common law principles. There are also local systems of 'tribal' law and custom in rural district, which govern everyday disputes and property relations but are subordinate to statutory law.

The civil legal code of Botswana dates back to 1890, when the Laws of the Cape Colony were adopted by the colonial state. The Cape code being Romano-Dutch as modified by English common law. The civil code has itself been modified by cases and precdents since 1890, as well as by legislation. Tswana customary law, as represented by the laws and precedents of the eight recognised "tribes", is also recognised in matters of property, inheritance and personal dispute arbitration in rural areas (Source: Botswana History Page)

The superior courts in Botswana are:

    • The Court of Appeal

    • The High Court

    • The Industrial Court

The inferior courts consist of:

    • Magistrates’ Courts

    • Customary Courts

The superior courts and the Magistrates Courts constitute the ‘Received’ law system.

‘Received’ Law

The President appoints the Judicial Officers, based on recommendations from the Judicial Services commission. Once appointed, the judges enjoy security of tenure.  In practice, however, security of tenure is only enjoyed by judges who are citizens, foreigners are employed on contract without tenure.  This system has raised concerns that the need for contracts to be renewed introduces motivations to be less independent of government. The Court of Appeal, for instance, is made up entirely of eminent judges from the Commonwealth countries, who sit twice in a year, June and December.

There have been accusations that the process of appointing judicial officers is not fully transparent in that the public and legal profession are not made aware of who the potential candidates were and the basis for the selection.  There have also been accusations that the appointments are, at least at times, politically based, for example Justice Kirby being appointed a High Court Judge after having been Attorney General.

However, on the whole the Judiciary has been independent and dispensed justice without fear or favour. Executive interference in the functions of the judiciary has not arisen.  There are many instances that individuals have sued the government or officials of government and won in court.  For example, in the case of Dow v. Attorney-General [1992 BLR 119] a female citizen challenged the constitutionality of the Citizenship Act on the grounds that it discriminated against women by not allowing a Motswana mother to pass on Botswana citizenship to her children by a foreign father, although a Motswana father could pass on his citizenship where the mother of his child was foreign.  She won the case and the Court of Appeal ruled that the law was unconstitutional.  The Act has since been amended, although it took some years for this to be done.

All persons and institutions are subject to the laws of the country.  In practice, however, access to justice operates with some constraints: it can be expensive and out of reach of many citizens and it can be slow.

DITSHWANELO also has concerns about the potential power of the Attorney General.  Under both the Constitution (s.51 (3)(c) and the Criminal Procedure and Evidence Act (s.10), the Attorney General has the power and the discretion to stop the prosecution of any offence before conviction; this is referred to as nolle prosequi.  S/he does not have to give any reason for stopping or discontinuing any prosecution and no authority can question her/his decision.  As private prosecution is allowed under the Criminal Procedure and Evidence Act, in theory – and exercised in practice on a number of occasions – the AG can step in to stop a prosecution or to intervene at any time to conduct the prosecution on behalf of the state. Nolle prosequi is not, however, a bar to the accused being charged again for the same offence.

DITSHWANELO believes the power of the AG not to prosecute cases seems to be too wide and can therefore be subject to abuse, especially since it cannot be questioned.

Customary Law

In the past tribesmen could bring almost any sort of legal issue to their Customary Court. The cases were presided over by the Kgosi (chief) in the Kgotla (village court). Nowadays anybody can use the Customary Courts and cases are also presided over by officials who are not necessarily Kgosi. Customary Courts have limited jurisdiction and can not hear matters such as rape, murder, divorce, common law marriages, maintenance issues and matters under common law.

There are over 500 customary courts spread across the country. Customary Laws have never been documented and there is no generally applicable customary law.  Rather, laws are unique to particular tribes or communities and applied to those who are part of those communities.  Knowledge of the law and its application is passed from Kgosi to Kgosi and to members of a particular community.  As such, Customary Law is a living and developing system which does adapt to changes in accepted practices or customs.

There has been debate about the value of codifying Customary Law to create greater understanding and consistency.  Currently, when High Court Judges are called upon to apply Customary Law, they are assisted by assessors (elders from the particular tribe who confirm what is considered correct practice in the tribe).

Customary Law is premised on the aim to find the truth.  A strong reason for continuing to dis-allow legal representation is therefore to reduce the likelihood of offenders getting off on a legal technicality.

A disadvantage of the Customary Law system is that it is administered by non-legally-trained individuals, without a codified guide.  Therefore, it is more likely to reflect discriminatory perceptions – such as the second-rate place of women in society.  This is demonstrated by the Ntlo ya Dikgosi (House of Chiefs) response to changes in Common Law, such as the Abolition of Marital Power Act, which they considered to be in conflict with Customary Law. 

The Customary Courts are more accessible to citizens than the Received Courts because they are free since lawyers are not allowed to appear in court; trials are often conducted in the local tongue. Courts are based in and reflect the traditions and attitudes of the local community; and they often produce quicker judgments because the cases are heard by the local chief or the presiding officer, whereas the Common Law system is limited by the availability of judges.  The approach of seeking the truth, rather than legal confrontation, also makes the Courts more attune to public attitudes and approaches. 

Consequently, at least 80% of cases are handled in customary courts”, according to IRIN, 3 September 2003[“BOTSWANA: First female paramount chief welcomed,” available at], with the proportion estimated to be as high as 90% of civil cases and 85% of criminal cases (according to “National Development Plan”, Para. 20.6, Government Printing Office, Gaborone, Botswana).

Where parties to the case wish to have legal representation, or the case involves a ‘serious’ crime or constitutional issue, it will be transferred to a Magistrate’s Court or more senior court in the ‘Received’ Court system.  Citizens also have the right to appeal a customary court decision to a higher customary court or, on a restricted basis, to the High Court.  Below you find an overview of the court structures in the rural areas and in urban areas:

Court structure in rural areas                                Court structure in urban areas

tables

Most cases start in the Lower Customary Courts and if a person is not satisfied with the decision then they appeal to the Higher Customary Court. The next Court of Appeal is then the Customary Court of Appeal. In very small villages there are “mediation” courts. These courts only deal with civil disputes between family members. In these courts the presiding officers do not write down any of the information shared. If a person is not happy with a decision of this court they then go to the Lower Customary Court.

HUMAN RIGHTS IN BOTSWANA

Botswana has been lauded as a shining example of democracy in Africa due to its relatively effective democracy and inclusion of civil and political rights in its Constitution, its relative lack of corruption, and the government’s responsible use of the country’s diamond wealth for the development and benefit of the people of Botswana.  The Government and people of Botswana are also very proud of the widely shared vision of what the country should look like in 2016, Vision 2016, which encompasses many (although not all) of the human rights objectives held by DITSHWANELO.

Like most countries, there is room for improvement in the extent to which the Government is representative and democratic, and a need to keep constant guard to avoid the rise of corruption.

DITSHWANELO’s key areas of concern are as summarised below.

  • The Constitution of Botswana does not incorporate social, economic, cultural, development and environmental rights.  This is a product of its time (1965) and only recognises civil and political rights. This means that the social, economic, cultural, developmental and environmental rights are not officially recognised.

  • As detailed under our Human Rights Issues section, the Government of Botswana does not apply a rights-based and consultative approach to development, which has led to the violation of the rights of those without access to decision-making processes.  For example, between 1998 and 2002 the negotiation between the Government and the Basarwa / San residents of the CKGR was a genuine attempt to involve this group of people in their own development.  However, the process was curtailed in 2002 with the enforcement of the government’s view of development onto the very different culture of the Basarwa / San.  The result has been a long and costly court case (2002-2006) which can not resolve the issue of the appropriate development of this group of people.  DITSHWANELO calls on the Government of Botswana to mainstream human rights in a consistent way across all areas of government, in the same way that the United Nations’ agencies and many other international development organisations are mainstreaming human rights, as detailed by the UN High Commissioner for Human Rights – UNHCHR site [http://www.unhchr.ch/development/approaches.html]  

  • Although Botswana has signed and ratified many international & regional instruments, they have not been incorporated in Botswana law or reflected in the Constitution.  They are therefore not enforceable, but are of mere persuasive value in a Court of Law.

  • Many people do not have access to justice in Botswana – the Rule of Law is applied, but with no form of legal aid or legal information, the poor and uneducated can be incorrectly imprisoned, deported or otherwise disadvantaged. 

  • Botswana still applies the death penalty; 39 people have been executed since Independence in 1966, the most recent being on 1 April 2006.  This is a violation of the right to life, which is enshrined in the Constitution.

  • Other legally-oriented human rights violations in Botswana include:

    • Many of the rights protected by Common Law are not protected by Customary Law, which is the law applied in over 90% of cases in Botswana.  This affects very large proportions of Botswana society, for example, under Customary Law, women are still effectively under the guardianship of their husbands, fathers or uncles.

    • The legal system fails to protect children’s rights, ranging from a young person not being allowed to request an HIV test without permission of their parents – resulting in many remaining unaware of their status and therefore increasing the risk spreading the disease; to the legality and active practice of corporal punishment in schools.

    • Corporal punishment is also allowed and practiced in prisons as a form of legally sanctioned punishment.

    • A number of laws, such as the Tribal Territories Act, discriminate against all ethnic groups other than the eight major Tswana groups.  This has an impact on the quality of democracy and in practice, results in discrimination against ethnic minorities in issues ranging from the allocation of land to the involvement of minorities groups in issues which affect their ‘development’. 

    • Homosexual practice is illegal and punishable by prison terms of up to seven years.

    • The President has the potentially vast power to declare a non-Motswana a prohibited immigrant with no explanation or proof.


  • In addition to legal inequalities, there are several groups in society whose rights are violated through discrimination and lack of understanding; these groups include  women, children, the elderly, those who are HIV positive, the disabled, ethnic minorities and indigenous people, immigrants and refugees, and gays and lesbians.

  • Many of these groups are also particularly vulnerable to abuse and discrimination by the police, the Botswana Defence Force and prison officials.

Of these issues, DITSHWANELO focuses most proactively on those matters which are least addressed by other organisations within Botswana, such as indigenous people and the death penalty.  DITSHWANELO also has a proactive focus on children and human rights because of the critical importance of ensuring that children learn about human rights.  Finally, because of our commitment to the indivisible nature of human rights, working in solidarity with regional civil society organisations, for example in Zimbabwe, is a further key priority.

For information about how the United Nations is supporting the achievement of human rights in Botswana see UN in Botswana.

CONSTITUTION OF BOTSWANA

As the supreme law in the country, the Constitution is the ultimate protector of human rights.  If any other law is found to be in conflict with the Constitution, it is over-ridden and must be repealed.

The Constitution of Botswana came into effect in 1965 and includes an elaborate Bill of Rights contained in Chapter 2, as shown in the Contents of the Constitution.  Reflecting its protection of most of the internationally recognised first generation – civil and political – rights, Botswana has been hailed as a shining example of democracy in Africa.

Botswana’s Constitution, like every Constitution, has ‘claw back’ clauses which remove the absolute protection of rights.  For example:

  • Chapter 2 provides protection of the right to life, but Section 4 provides that a sentence of death passed by a court of law is an exception to the protection of life. 

  • The Constitution does not guarantee the right to legal representation, other than in the case of crimes for which the sentence could be death.  Consequently, those who can not afford lawyers risk not receiving justice. 
  • Article 12(1) guarantees freedom of expression but Section 12(2) places limitations on this freedom by stating that any law that seeks to put the interest of the nation above that of individuals in terms of defence, security, or common good does not limit the freedoms provided in section 12(1). 

In addition, unlike recent Constitutions such as South Africa’s, Botswana’s Constitution does not specifically protect the rights of every group, such as sexual minorities.

DITSHWANELO believes that it is time that there is a major review of the extent to which Botswana’s Constitution does enshrine all the human rights to which Botswana is committed.  We will be seeking to encourage the government to undertake such a review and to seek ways to have a Constitution which has human rights as its basis.

CONTENTS OF THE CONSTITUTION OF BOTSWANA

CHAPTER I:  THE REPUBLIC

CHAPTER II:  PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

    • Fundamental rights and freedoms of the individual

    • Protection of right to life

    • Protection of right to personal liberty

    • Protection from slavery and forced labour

    • Protection from inhuman treatment

    • Protection from deprivation of property

    • Protection for privacy of home and other property

    • Provisions to secure protection of law

    • Protection of freedom of conscience

    • Protection of freedom of expression

    • Protection of freedom of assembly and association

    • Protection of freedom of movement

    • Protection from discrimination on the grounds of race, etc.

    • Derogation from fundamental rights and freedoms

    • Declarations relating to emergencies

    • Enforcement of protective provisions

    • Interpretation and savings

CHAPTER III:  CITIZENSHIP
Repealed and are incorporated in Cap. 01:01.

CHAPTER IV:  THE EXECUTIVE

PART I President and the Vice-President:  covering issues such as election of the President and circumstances such as vacancies in the office of president, the role of the office of the President, discharge of functions of President during absence, illness, etc.; the salary and allowances of President and protection of President in respect of legal proceedings.

PART II Cabinet: tenure of office of Ministers and Assistant Ministers, oaths to be taken by Ministers and Assistant Ministers, etc.

PART III Executive Functions: functions of President, Vice-President, Cabinet Ministers and Assistant Ministers, Attorney-General, Permanent Secretaries. Prerogative of Mercy and the role of the Advisory Committee on Prerogative of Mercy. Constitution of offices.

CHAPTER V:  PARLIAMENT

PART I Composition: of Parliament and the National Assembly, including qualifications for election, constituencies, supervisor of elections, and tenure of office of members.

PART II General Provisions Relating to Procedure in National Assembly; including oaths to be taken by Speaker and Members, voting, and regulation of procedure.

PART III The House of Chiefs: including composition, Ex-officio Members, Elected and Specially Elected Members of House of Chiefs, oath of allegiance, tenure of office, rules of Procedure and functions.

PART IV Powers of Parliament, including legislative powers, mode of exercising legislative powers, introduction of Bills and alteration of Constitution.

PART V Summoning, Prorogation and Dissolution: sessions of Parliament, prorogation and dissolution of Parliament, vote of no confidence in the Government and sittings of the National Assembly.

PART VI Interpretation

CHAPTER VI:  THE JUDICATURE

PART I High Court: jurisdiction and composition, appointment of judges, tenure of office, and oaths to be taken.

PART II Court of Appeal: jurisdiction and composition, appointment of judges, tenure of office, and oaths to be taken.

PART III Judicial Service Commission: composition, appointment and procedure.

PART IV Interpretation of the Constitution: including the role of the High Court and Court of Appeal.

CHAPTER VII: THE PUBLIC SERVICE
Covers power to specify qualifications for certain offices, the Public Service Commission, appointment of public officers, appeals to the President and powers of the President, tenure of office of the Attorney-General and the Auditor-General, pensions laws and protection of pensions rights, and power of Commissions in relation to pensions, etc.

CHAPTER VIII:  FINANCE
Sets out procedures regarding the Consolidated Fund and other public funds, authorization of expenditure, use of Contingencies Fund, remuneration of certain officers, issues regarding public debt and the Auditor-General.

CHAPTER IX: MISCELLANEOUS

Covers resignations, reappointments and concurrent appointments and interpretation.

VISION 2016

In 1996 a Presidential Task Group produced a booklet entitled "A Framework for a Long Term Vision for Botswana" which has become a national manifesto for the people of Botswana.  This “Vision 2016” expressly adds a fifth principle national principle, to the existing ones of democracy, development, self-reliance and unity.  This principle is Botho (Setswana word for respect, good manners and/or humaneness). Vision 2016 says botho must permeate every aspect of our lives, so that no Motswana will rest easy knowing that another is in need.  As detailed on the Vision 2016 website, Botswana’s vision for 2016 includes:

  • Being an educated and informed nation, with no student being disadvantaged by ethnic origin, gender, language or remoteness of settlement. Information about the operations of Government or other organisations will be freely available to all citizens.

  • Having sustainable development, with all Batswana having the opportunity of paid employment and access to good quality housing.

  • Being a compassionate and caring nation, withincome distributed equitably, good quality health services, sanitation and nutrition, and reversal of the negative impact of the HIV/AIDS epidemic.

  • Being an open, democratic and accountable nation, with civil society playing a full part in the development of the country, and with freedom of expression and press freedom being fully protected.

  • Being a moral and tolerant nation, with high standards of personal morality, and tolerant social attitudes towards people of different cultures, ethnic traditions, religions or disabilities.

Vision 2016 addresses many, although not all, of DITSHWANELO’s human rights objectives and already has the support of the government, the people and organisations across the country.  It is, however, a high level vision and its implementation is dependent on the incorporation of its principles in the activities of every part of society.  Central funding to support its achievement will not be sufficient alone.

DITSHWANELO has been involved in two Vision 2016 Sector groups intended to support implementation of the Vision – aiming at an open democratic and accountable nation and a compassionate and caring nation.

Our aims are to:

  • Raise public understanding of the acceptability and benefits of human rights by demonstrating the link between human rights and the widely supported Vision 2016.
  • Demonstrate that we are not working against the Government of Botswana.
  • Encourage civil society and all organisations with whom we are working in partnership, including politicians and local authorities, to work according to the principles of the Vision.
  • Demonstrate to the public and decision-makers that Vision 2016 is necessary but not sufficient, that its general principles should be applied more widely, such as to sexual minorities and refugees, who are not currently covered by the Vision.

In addition, we will develop a campaign to demonstrate that Vision 2016 can only be achieved effectively if the Constitution is reformed comprehensively as detailed on our section on Constitution of Botswana.

INTERNATIONAL & REGIONAL INSTRUMENTS

International and regional conventions, covenants and treaties provide internationally accepted principles and standards of human rights which Governments are strongly encouraged to apply. 

There are seven core international human rights treaties. Each of these treaties has established a committee of experts to monitor implementation of the treaty provisions by its States parties. Some of the treaties are supplemented by optional protocols dealing with specific concerns.  In addition to the International Bill of Rights and the core human rights treaties, there are many other universal instruments relating to human rights, for example, in relation to indigenous peoples, older persons, persons with disabilities, marriage, health, slavery and much more.  

The legal status of these instruments varies.  Declarations, principles, guidelines, standard rules and recommendations have no binding legal effect, but do have an undeniable moral force and provide practical guidance to States in their conduct.  Covenants, statutes, protocols and conventions are legally-binding for those States that ratify or accede to them. In the case of Botswana for these to be legally binding, they need to be domesticated or incorporated into national law. Without domestication, they remain of mere persuasive value in the Courts.

The United Nations system for the promotion and protection of human rights consists of two main types of body: bodies created under the UN Charter, including the Commission on Human Rights, and bodies created under the international human rights treaties.  Of the seven human rights treaty bodies which monitor implementation of the core international human rights treaties, four of the Committees (HRC (The Human Rights Committee), CERD (the Committee on the Convention on the Elimination of Racial Discrimination), CAT (The Convention against Torture and Other Forms of Degrading Punishment) and CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) can, under certain conditions, receive petitions from individuals who claim that their rights under the treaties have been violated.

There are several other important United Nations bodies which are concerned with the promotion and protection of human rights, including the United Nations General Assembly and the International Court of Justice.

Links

The Office of the High Commissioner for Human Rights (OHCHR) provides details and links about all UN human rights processes on the OHCHR websit.

The Human Rights Network International – HRNI provides an extremely comprehensive database of resources relating to an extensive range of human rights.

The People’s Movement for Human Rights Education – PDHRE also provides a comprehensive overview of the provisions of international human rights law which guarantee rights and the commitments governments have made to ensure the realisation of human rights.

Another good source of information about legal rights is the International Commission of Jurists – ICJ, site which includes a Legal Resource Centre which is a searchable database of press releases, reports, legal documents and other legal materials.

Universal Declaration of Human Rights (UDHR) was signed in 1948, but it is not a legally binding document, although certain other conventions, covenants and treaties which were modelled on the UDHR are legally binding on the states which ratify them.  For more information, see UN Rights.

There continues to be great debate about the enforcement of international human rights standards. 

In 1986, the Organisation for African Unity (OAU)’s African Charter on Human and Peoples’ Rights came into force, modelled on the UDHR.  Botswana ratified unlike many other international human rights instruments, the African Charter includes all three generations of rights and details the responsibilities of individuals, communities and nations in protecting those rights.  The African Commission on Human and Peoples’ Rights, based in The Gambia, was established as a regional body to enforce the Charter.  However, enforcement remains a problem as the Charter has no mechanisms to make it truly accessible to many African citizens or mechanisms to ensure compliance by States.  However, the establishment of the African Court on Human and People’s Rights will go a long way in ensuring compliance.  The Commission’s website includes the Charter and other information.

Many countries have developed a Constitutional Bill of Rights to give domestic legal effect to international human rights provisions.  Botswana has an elaborate Bill of Rights in its Constitution which protects most of the internationally recognised first generation – civil and political – rights. 

The main international instruments signed, ratified, or acceded to by Botswana are listed below, with links to the instruments. As this table shows, many of these instruments have been signed with reservations.  This means that the Government made exceptions to the section of the instrument to which it wished to be committed.

There is no transparent, consultative and participatory process followed which includes the civil society sector or the private sector before the Government of Botswana commits herself to international instruments. There is also need for actual domestication into national law before the international instrument becomes binding.

Consequently, although Botswana has signed, ratified or acceded to many international and regional instruments, these principles are frequently not enshrined in legislation and therefore not legally binding. 

The Government of Botswana also has a poor reporting record in regard to many of the international treaties or conventions to which it is a party. Specifically, Botswana has a history of failing to file reports in a timely manner to the treaty bodies which monitor the Convention Against Torture, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. Additionally, Botswana has never submitted a report to the African Commission. 

There has been some improvement in Botswana’s reporting record in recent years; for instance the government has submitted two reports to the Committee for the Elimination of Racial Discrimination (CERD) for consideration in 2002 and in May 2006. 

International Instruments Ratified by Botswana

The Government of the Republic of Botswana Treaty Register, “Multilateral Treaties and Agreements To Which Botswana is a Party,”

The following international treaties have not yet been signed or acceded to by the Government of Botswana:

    • International Covenant on Economic, Social, and Cultural Rights

    • Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

    • Convention on the Reduction of Statelessness

    • Convention on the Prevention and Punishment of the Crime of Genocide

    • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

    • Indigenous and Tribal Peoples’ Convention (ILO 169), 1989

The key implications of not having signed or acceded to these instruments are:

  • The rights recognised in the instruments are not recognised by the Government of Botswana.

  • The rights contained in the instruments are not even of persuasive value.

POVERTY AND AFFORDABLE LEGAL ASSISTANCE

Introduction & DITSHWANELO’s response
Access to justice in Botswana 
Poverty in Botswana:  UNDP Report 2005 

In spite of impressive gains in economic and social development, Botswana continues to face great challenges in terms of sustainable human development and poverty reduction.  To detail this we provide excerpts about poverty in Botswana from the United Nations Development Programme’s Botswana Human Development Report 2005”.  This report provides the latest information about the level and causes of poverty in Botswana.

Poverty in the Botswana context is defined in terms of the Poverty Datum Line (PDL). In September, 2000 the income value of the PDL "basket of goods" for a single adult male in the central rural area of the country was about P120 per month. This corresponds to between US$25 to US$30 per month, thus corresponding very closely to the international benchmark definition of poverty as having to survive on less than US$1 per day. The food component of the PDL is based on 1,750 calories per day and is defined as the "minimum caloric value necessary to maintain health." In 1993/94, those living in extreme poverty totalled 30% of the population. "Extreme poverty" is defined as surviving on less than the food component of the PDL.

There is a direct link between poverty and access to justice. Poor people are often unable to afford adequate legal services. The consequences of not having access to proper legal counsel can be the denial of access to justice and the violation of the right to equal protection under the law.

In the absence of any form of legal aid, as detailed in Access to justice, DITSHWANELO provides paralegal services to those earning less than the minimum wage, P600/month.  Other legal, paralegal and counselling services are provided by the following organisations:

  • Botshabelo Rehabilitation Crisis Centre (BORECC) – women and children

  • Botswana Council of Churches

  • Childline – children and their parents

  • Emang Basadi Women’s Association – mainly women

  • Lifeline

  • Women’s Shelter – mainly women (and children)

  • Student Representative Council at the University of Botswana

  • Women Against Rape (WAR) - Provides legal support for women and children survivors of abuse.

Access to justice in Botswana  

At least 80% of legal cases in Botswana are heard in the Customary Courts (for further background about this system see Customary Law).  These Courts are free and often considered to be more accessible to the public.  To the extent that cases are eligible to be held in a Customary Court and that they deliver justice, Batswana do have access to justice.  However, there are some concerns about the system, such as its tendency to perpetuate discriminatory attitudes (e.g. the low status of women and children).  It also remains dependent on the ability of the accused person to be able to represent him- or herself in the Court.

Moreover, for crimes of a more serious nature, or where the case relates to Common Law (e.g. divorce proceedings for a couple married under Common Law), the case must be heard in a Magistrate’s or other ‘Received’ Court.

For example, the [Live]Stock Act of 1996 provides for a mandatory five year sentence of stock theft of even one sheep. As a result, 38% of the entire male prison population in 1998 was incarcerated for stock theft. In one case, a 65 year old woman and her 39 year old daughter were sentenced by a customary court to five years in prison for stealing one sheep from the brother of the woman – reflecting the tendency of poverty to lead to crime.
                                        
DITSHWANELO therefore believes that ensuring access to justice for all means that citizens must have access to affordable legal advice / support when required.  Our belief is supported by the African Charter on Human and Peoples’ Rights, to which Botswana is committed, and the country’s Vision 2016, which aims for the attainment of a “compassionate, just and caring nation”. 

However, although Botswana is committed to the African Charter, she has not yet committed herself to the African Court, which was established on the basis of a 1998 Protocol which provides for free legal representation where required in the interests of justice.  Botswana provides no clear right to legal representation in her Constitution and continues to have no State-funded legal assistance for those unable to afford legal fees.  Botswana does have a system of in forma pauperis, under which the Registrar will provide a lawyer for a litigant in the High Court who has no money – defined as total assets of less than P50.  But even the Registrar has said that there is no one in Botswana with total assets of less than P50.

The government does provide legal assistance for those charged with capital offences, although, due largely to the low fees paid to lawyers, the quality of the legal support provided is typically poor.  According to the Judge presiding over the Maauwe and Motswetla death penalty case, Judge Reynolds:  “There was evidence in the DITSHWANELO / Maauwe / Motswetla case which revealed that the pro deo counsel did not consult with the accused persons, nor did they do the necessary research commensurate with the gravity of the matter, i.e. the accused persons’ life or death.”

Beyond pro deo (‘for God’) representation, there is no support for the many cases in which individuals face lengthy sentences.  Similarly, there is no support for the large number of circumstances in which individuals can not afford justice.  With 47% [SEE UNDP REPORT] of the population living below the poverty line and legal representation unaffordable for many above it, there are many individuals who suffer injustice, whether being unable to defend themselves or unable to fight against violations of their rights.

In addition to affordability, many people find it difficult to seek justice outside the Customary Courts due to geographical isolation, lack of access to information, and inefficiencies and delays in the administration of Common Law justice.  Lack of information is a critical issue, as ignorance of the law is not accepted as an excuse to justify not acting in accordance with the law.

DITSHWANELO believes that it is the duty of the State to provide free legal services for those who are in need of legal representation but are unable to afford it. However, there are countries within the region in which the legal aid system has collapsed due to a myriad of problems, particularly financial. DITSHWANELO is working with the Government and legal system to undertake research and analyse these systems so as to be able to formulate proposals for a viable legal aid system in Botswana.

Poverty in Botswana:  UNDP Report 2005

The following is a summary of Chapter 2 of the United Nations Development Programme’s “Botswana Human Development Report 2005”; Chapter 2 being entitled “Botswana: Thirty-Eight Years of Progress and The Tragedy of HIV/AIDS”.  The full report is available on the UN’s Botswana website.

At the time of independence in 1966, Botswana was one of the ten poorest countries in the world. In 1993 prices, its per capita GDP amounted to only P1, 6821, the equivalent of $656 or $1.80 per day. The economy was predominantly agrarian (40% of GDP came from agriculture), the population largely semi-literate, and the known natural resource base very poor. Institutional and physical infrastructure was at best very rudimentary: an administrative capital did not exist and there were only 7 kilometres of tarred road in the whole country and no other communications infrastructure or services of note. Batswana were thus a people profoundly separated by physical space in their 582,000 kilometres of land.

[Due to] good economic and political governance [there were strong economic developments] in the period from the time of independence to 1999, that is the period before HIV/AIDS began to reverse the earlier developmental gains.

  • Life expectancy at birth rose from 46 years in 1966 to 67.5 years in 1999, thanks to an accelerated programme of expanding access to public health services and improvements in incomes and nutrition.

  • The under-five child mortality rate fell from 151 deaths per thousand live births in 1981 to 49 in 1997 for the above stated reasons.

  • Adult literacy rose from 34% in 1981 to 75% in 1999.

  • The net [school] enrolment rate rose from 42% in 1971 to 98.4% in 1997.

  • The rate of income poverty fell from 59% of the population in 1985 to 47% in 1993.

  • The Human Development Index rose from 0.63 in 1991 to 0.72 in 1997.

Physical infrastructure [develop was also] impressive. By 2002, Botswana had bituminised 6,872 kilometres of the national road network, up from 7 kilometres in 1966. From a zero base in 1966, Botswana has developed a fully digital telecommunications infrastructure, deployed along a circular central transportation corridor linking the country’s major population centres, and with spurs connecting these to rural centres off the central corridor.  Virtually all major population centres now have electricity, thanks to an aggressive rural electrification programme. Equally spectacular results were achieved in the provision of water and the development of health and education infrastructure. The driving force behind these developments was a successful economy and an accountable and conscientious leadership.

[As a result] Botswana’s economy is one of the strongest and best managed in the developing world. It exhibits strong fundamentals - fiscal solvency, monetary stability, a healthy external balance, robust growth, and a good sovereign credit rating.

But Botswana is essentially a mineral economy; this has several implications for human development. Mining accounts for more than a third of GDP, about 80% of export receipts and about 50% of government revenue.  Driven by mining, Botswana’s real GDP growth rate averaged 9.2% per annum over the period 1966-96, the highest sustained growth rate in the world and matched only by China’s performance in the 1990s. The growth was however defective, especially in relation to employment creation and poverty reduction. Despite its large GDP share, mining accounts for less than 5% of total formal sector employment and its direct linkages with other sectors of the economy are weak.

The GoB receives more than 60% of all mining profits in dividend income (based on its 50% share in DEBSWANA, the diamond mining company) and tax income. The Government thus provides the single most important medium for transforming diamond revenues into benefits for other sectors of the economy. The Government has a deliberate policy of using mineral revenue for investment in incremental productive capacity outside mining. [In addition,] an important but seldom acknowledged function played by mining in Botswana is skills development and inward transfer and diffusion of skills and technology.

[But] Botswana’s rapid economic and human development has not been perfect. Apart from a slow pace of diversification five other problems, all related to the structure of the economy have dogged Botswana’s development. These are, in no particular order, inequality, unemployment, poverty, excessive dependence on the state, and a slow pace of citizen economic empowerment.

Botswana has always had an unequal society. Ownership of the main resource in pre-mining Botswana, cattle, has always been highly concentrated, [with] a gender dimension to the inequality in cattle ownership that is rooted firmly in a tradition and culture that ascribes ownership and control of livestock and related assets – farms, boreholes etc. - to men.

The modern mineral economy has not produced equitable economic development either. Even as it changed the structure of the economy profoundly, mining created new divides. It disproportionately benefited those employed in mining, government and relatively skilled and technology intensive sectors. It has also intensified rural-urban income differentials.

According to the 1993/94 Household Income and Expenditure Survey (HIES), the poorest 40% of the population received 12% of national income in 1993/94. The next 40% received 29% whilst the richest 20% received 59%. Inequality has an urban dimension as well.

Botswana’s spectacular growth performance in the first three decades after independence did not translate well in terms of employment creation. Thus, unemployment and poverty are serious problems for Botswana despite decent rates of economic growth. More than one in six job seekers could not find a job in 2000.  Botswana’s unemployment problem is a diversification problem. Mining contributes less than five percent of formal sector employment even though its contribution to GDP amounts to nearly 40%. The Government sector accounted for 38% of formal sector employment in 2002. There is therefore an urgent need to generate growth in high job content sectors other than government and hence the Government’s heavy emphasis on diversification as an objective.

The relatively low impact of economic growth on poverty is also straining Botswana’s development. Most countries with per capita GDP comparable to Botswana’s, e.g. Tunisia and Algeria, have income poverty rates of less than 10%. Yet, for Botswana, nearly half the population subsists below the poverty line. This surmise is based on Botswana Institute of Development Policy Analysis (BIDPA), 1997 analysis of the 1985/86 and 1993/94 Household Income and Expenditure Surveys. These surveys suggest that the incidence of poverty declined by only 12 percentage points from 59% to 47% between 1985/86 and 1993/94. But these measures do not account adequately for public provisioning for basic needs – education, health, sanitation etc. and so underestimate the degree of success in poverty reduction from a basic needs perspective. It is precisely because of public provisioning for basic needs that Botswana’s indicators of wellbeing improved markedly between 1966 and 1996.

Consensus has emerged that Botswana’s problems of poverty and unemployment are ultimately structural. Some of the frequently citied factors are that:

  • Outside mining, Botswana’s resource endowment is actually very poor. In particular, the climate and the soils are not well suited to the low-tech small-scale arable farming of the type Batswana are used to and people, as a resource, are too few;

  • The market is, at 1.7 million people, too small to support employment creation on the scale required to make rapid progress against poverty and unemployment. It limits the nature and size of firms setting up in Botswana and so influences Foreign Direct Investment (FDI) inflows, technology transfer and growth;

  • Botswana is landlocked, which creates high export and import costs because road haulage and air transport are considerably more expensive than shipping and;

  • The size of the country and sparse distribution of the population make service provision to this fragmented market costly and difficult.

[In addition] the battle against poverty will be made somewhat more difficult by the toll HIV/AIDS takes on the population’s health and the viability of the country’s institutions, especially public institutions. Indications are that HIV/AIDS could very easily generate governance failures of catastrophic proportions. Although less dramatic than over crowded hospitals and a high incidence of death, failing education and stunted emotional and intellectual development of children will count amongst the greatest tragedies of this epidemic.

In a 2002 review of anti poverty initiatives in Botswana, stakeholders are reported as having cited “welfare policies that promote a culture of dependency” among the causes of poverty in
Botswana. In the specific cases of drought relief and Accelerated Rainfed Arable Development Programme, the Report observes: “Whilst poor people were unanimous in their view of drought relief as a useful programme, many of the relatively well-off respondents, including civil servants, expressed concern about the extent to which the programme distorted incentives and choices (e.g. drought relief vis-à-vis arable farming) and engendered a culture of inefficiency.  Thus policy may not only fail to reduce poverty but may in fact exacerbate or cause it.”  The malaise of dependency also afflicts the well-off and investors. For instance… in the business community, lobbying for generous subsidy support diverts government attention from more serious constraints on entrepreneurship development, for instance, skill and technology deficiencies.

Press Releases

 

28 April 2005

37th Session of the African Commission of Human and People's Rights

27 February 2004

The Criminal Justice System in Botswana

Stiffer Penalties Not the Answer

13 December 2002

Access to Justice in Botswana

Legal Representation is Not Accessible to Many Batswana

 

Links

BIDPA Botswana Institute for Development Policy Analysis
SALAN - Southern African Legal Assistance Network
SARPN - Southern African Regional Poverty Network:  To provide a facility for raising the level and quality of public debate on poverty across the Southern African Development Community - SADC.

 

 



 

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