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CHILDREN’S RIGHTS 

My Future Today: a Guide for Youth

Introduction
Definition of Children
Violations of children’s rights in Botswana
Quality of Education
Convention on the Rights of the Child
Legislation – Common Law
Customary Law
Links

 

Introduction

Traditionally in Botswana society, children are not viewed as rights holders.  They are expected to obey their parents and other adults without question.  Under Customary Law children are not allowed to speak in Kgotla meetings (community gatherings and consultations).

The majority of Batswana misunderstand ‘children’s rights’ for freedoms which are perceived as a threat to cultural and customary law principles, such as respect for elders and parents. 

In combination, these traditions and attitudes result in a lack of participation by children in decisions affecting them, a failure to understand and appreciate children’s rights, and increased opportunities to abuse children’s rights.

DITSHWANELO believes that children’s rights are not a threat to the culture of respect or the cohesion of society, nor is the concept foreign, as often believed.  We believe that by ensuring that children learn their responsibilities and the rights of others, as well as their own rights that Botswana can develop a culture where children’s rights are protected and the children grow into responsible, respectful and rights-oriented adults.

This section includes further information about:

Definition of “children”

The term “children’s rights” is widely used, but the definition of children in Botswana varies.  DITSHWANELO’s Programme covers children and young people.

Botswana is developing the second phase of its National Programme of Action for the Children of Botswana which will run until 2013 and which looks at the needs of particularly vulnerable children including those on the streets, working children, children with disabilities and orphans.

Violations of children’s rights in Botswana

This is a summary of the violations children’s rights which our research has identified in Botswana.  Issues related to education are addressed separately.

  • As noted in the introduction, children are expected to obey their parents and other adults without question and are actually not allowed to participate in community decision-making.  Consequently, there is a lack of participation by children in decisions affecting them.

  • An increasing number of child abuse cases are being reported.

  • The ultimate abuse is murder and young people are those most affected by the much reported increase in so-called ‘passion killings’.  There were 46 reported passion killings in Botswana in 2003, 54 in 2004 and 62 during 2005.

  • HIV/AIDS is having a major impact on the ability of families to provide effective care for their children, affecting school attendance, creating many orphans (estimated to be 112,000, care of whom is disproportionately in female-headed households ), resulting in child-headed households (officially accounting for 2%, about 8,660, households in the 2001) and extended families / grandparents forced to look after orphans.  The epidemic also affects children and young people directly, with many babies born HIV+ or being infected through their mother’s milk.  With the availability of treatment, these children can survive and enjoy a normal childhood – if they receive special care, which many do not.  In older groups, early sexual activity spreads the disease, with girls being most easily infected and therefore most at risk.

  • Concerns have been raised about the lack of positive recreational facilities for young people, especially in rural areas, encouraging drinking due to lack of alternatives.  There are reports that where recreational and educational activities for young people have been introduced they have cause a significant reduction in local youth crime.

  • The children of minority ethnic groups, including but not limited to the Basarwa/San, are ridiculed and insulted, including by teachers.

  • Children with disabilities are discriminated against and not adequately integrated or receiving adequate access to social services.

  • Many cultural and traditional practices reinforce gender inequality and discrimination when inheritance decisions are made, typically depriving children and young people of their inheritance rights.

  • Many children support their families with labour on the land or the house, but some are forced into child labour which denies them their education and childhood.  For example, a Kuru survey in 2000 found that 37% of farm workers aged 7-20 years in the Ghanzi District had never attended school. One of the key difficulties is that these farms are private property and it is very difficult for anyone, including the government, to gain access to identify that is happening.  In addition, as HIV/AIDS has increased child-headed households, children are often economically forced to work.

  • Refugee teenagers and young people are particularly susceptible to abuse, exploitation, violence and xenophobia. In addition to the trauma they are likely to have experienced due to armed conflict, they are often separated from their families and some have to fend for themselves. They experience hardships due to poverty, insufficient food, health care and inadequate shelter, and removal from their social, economic and cultural environment affects them emotionally.

  • Children of undocumented migrants often do not attend school and may well be forced into work.

  • Given the discrimination and illegality of homosexual acts in Botswana, children and young people who have questions about their own sexuality are highly unlikely to find support and those identified as homosexual will face discrimination and possible punishment.

  • There are reports of forced marriages of children, which is allowed under Customary Law.  The “Scoping Study on Child Labour in Botswana”, 2003, says that “among the RAD [remote area dweller] communities, notably the Basarwa, girl children can and do get married off at the age of 10 years. Such children are expected to bear and raise children”.

Further information is available in the UN’s “Violence against Children in the Eastern and Southern Africa Region: The problem, actions taken and challenges outstanding”, 2005. [www.violencestudy.org/IMG/doc/EasternSouthernAfrica_report_JK_FINAL_12_June.doc]

Quality of education

DITSHWANELO believes that education should be a basic right for all children and young people and that a high quality education should be a priority for the country.  Our research has, however, identified the following issues regarding education in Botswana, which are detailed below:

Education is not compulsory and it is not a right in Botswana: it is not provided as a right in the Constitution, and this fact has been demonstrated by the introduction of school fees from January 2006, as well as by the fact that only citizens enjoyed free education to date, excluding foreigners and refugees.  With the introduction of fees in January 2006, we concur with view of the United Nations (UN) Special Rapporteur on the Right to Education thatthere is likely to be an increase in school drop out rates, reduction in  Botswana’s educational achievements, and increased discrimination and bullying of those students identified as being poor (i.e. exempted from the school fees).

Attendance is a problem at some levels.  It has been reported that around 92% of children attend primary school, but only 45% proceed to junior secondary school and 20% of these continue into senior secondary school [Botswana Multiple Indicator Survey End of Decade Review on the World Summit for Children Goals Set for 2000 UNICEF and CSO 2000.  Also other, quite different, statistics have also been reported].  This high drop-out rate is due partly to schooling not being compulsory and largely to poverty, as well as a range of other issues, such as teenage pregnancy.  Given the rising number of orphans in Botswana, this drop-out rate is likely to increase due to poverty, especially with the introduction of school fees in secondary schools.

Schools infrastructure is relatively well developed in Botswana, with classrooms, furniture, books and, in most schools, electricity, although there are reports of schools becoming dilapidated.

Opportunities for early childhood stimulation and learning are limited with only 9% of children in that age group having access to pre-school education, which is provided through the private sector and non-governmental organisations (NGOs), with some local authorities also providing very limited early childhood care and education.  The national policy on early childhood education and care limits the Government’s participation to creating an enabling environment, ensuring standards and monitoring.  Early childhood services are limited mainly to urban centres and to those children whose parents can afford to pay the fees.

Botswana’s National Action Plan for Youth 2001-2010 recognises that the provision of vocational training is very limited, with (at 2001) only 6.7% of primary school leavers likely to have access to vocational training.  It is reported that the Government plans to improve vocational education over the next three years.

Schools teach only in English and Setswana, denying the other 24 language groups education in their mother tongue, as well as the opportunity to develop high-level language skills.  Not learning in mother tongue is particularly difficult at the early ages when children are first learning to read and write. 

There have also been reports that even Setswana is not taught to a high standard, resulting in declines in the quality of written Setswana, as evidenced by the 2005 Junior Certificate examination results.  In some schools, it is reported, students are being forbidden to speak in Setswana in the playground.  This situation has raised concerns that important aspects of the Botswana culture will be lost.

The quality of teaching could be improved, as in any country, with press reporting of poor morale among teachers.  It has also been reported that there is a huge gap between primary and secondary education standards.  Teacher unions claim that the government’s un-consulted increase in the number of students in senior secondary classes in 2006 from 35 to 40 students – designed to allow more students into senior school, will reduce the quality of teaching and individual student support they can provide.

Newspaper coverage demonstrates major concerns about the proposed introduction of a double shift of teaching in 2007 and its plan to create an increased student population by the inclusion of students who previously didn’t meet the required academic standards. Other concerns include the impact of afternoon heat on students’ concentration and quality of teaching; the government’s suggestion that afternoon students will not be provided with a mid-day meal; queries about whether there are sufficient teachers for the increased number of classes; forecasts that the system will have a negative impact on extra-curricula activities; limited accommodation and staffing in boarding schools; and worries that the system will push students into loitering and other misbehaviour.  Some parents have been reported as saying they would withdraw their children from schools introducing the double shift and they, as well as teachers, criticised the lack of consultation by the government.

It is reported that orphans are all considered to be AIDS orphans and are stigmatised and bullied at school by other students.

Corporal punishment is normal in state schools, although not private schools. The ways in which it should be administered are governed by the Education Act (Corporal Punishment) Regulations 1968.  These Regulations state that corporal punishment is only to be administered for a serious or repeated offences.  In practice, however, it is frequently administered as punishment for backwardness, lateness, absenteeism, failing a test or assignment, or not speaking up in class; none of which are endorsed by the system.  The Regulations state that it is to be administered by the school head or a teacher in the presence of the head; that a light cane shall be used to administer not more than five strokes; no male teacher may inflict corporal punishment on a girl whom he believes to be over 10 years of age; the skin is not meant to break; and girls should only be hit on the calves or palms, not on the head, arms, back or buttocks.  A record of the offence, the number of strokes administered, the date of the punishment and the name of the person administering the punishment must be kept.  In practice, there are regular media reports of abuses, such as a girl being hit in the head with a belt buckle, and these reports are likely to be only the tip of the iceberg.  Even parents who support corporal punishment as being traditional, are often quoted in the press as being against beatings as carried out in schools because teachers are too aggressive.

Although the legislation regarding pregnant teenagers has changed, in practice girls who have children frequently do not return to school

The children of Remote Area Dwellers (RAD), especially Basarwa / San, are often forced to live in hostels a long way from their homes.  The hostels which are inadequately staffed, poorly maintained, overcrowded and inadequately supplied with clothing, lighting and other necessities. [BEST Report – RADS Education Summative Evaluation, page 86]

There are only limited schools, teachers and rehabilitation centres for children with disabilities.  Facilities which do exist are predominantly owned by NGOs.

Dukwi Camp for refugees has a primary and secondary school, but the children still face difficulty in gaining a good education because of the number of languages and difficulty of teaching in their mother tongue. 

Convention on the Rights of the Child

The United Nations’ 1989 Convention on the Rights of the Child, was ratified by the Government of Botswana in 1995, with a reservation on Article 1.  It provides details of the internationally agreed rights of the child, summarised below.

  • Children’s right to life and to protection from abuse, neglect and exploitation

  • The centrality of the “best interest of the child” in all decision-making

  • That no child should be discriminated against on the basis of gender, race, religion, etc.

  • The right to grow up in an atmosphere of happiness, love and understanding

  • The right to maintain contact with both parents where separated from one or both of them

  • The right to freedom of expression and for his or her opinion to be taken into account in any matter or procedure affecting him/her

  • The right of access to appropriate information

  • That the State is obliged to provide special protection for children deprived for a family environment, for disabled children, and for refugee children

  • The highest standards of health and medical care attainable

  • The right to a standard of living adequate for his or her physical, mental, spiritual, moral and social development

  • The right to education, with that education aiming to develop the child’s personality, talents and mental and physical abilities to the fullest extent

  • Children of minority communities have the right to enjoy their own culture and to practise their own religion and language

  • The right to protection from work that threatens his or her health, education or development

  • The prohibition of capital punishment and life imprisonment without the possibility of release for children below 18 years

  • Children in conflict with the law have the right to treatment which promotes their sense of dignity and which aims at their reintegration into society

Legislation – Common Law

Legislative change is necessary, but not sufficient.  As the summary of issues below demonstrates, there are many examples of non-discriminatory legislation which is based on the best interests of the child, which is not being applied under customary law or common practice.

Various laws relating to children have been modified over recent years and previous areas of discrimination have largely been removed from legislation.  However, there remain many issues which need to be addressed if Botswana legislation is to be in accordance with the Convention on the Rights of the Child

Having recognised that laws and cultural and institutional arrangements have not been focused on achieving children’s well being, the Government of Botswana commissioned a legislative review run and funded jointly by the Ministry of Local Government and UNICEF and involving a Reference Group, including DITSHWANELO

After a review taking several years, the Reference Group reported in 2004, making 107 detailed recommendations for change.  Since then, we have not heard about the government’s response to the recommendations and urge the rapid acceptance of the recommendations and revision of legislation.

DITSHWANELO independently reviewed the following pieces of Botswana legislation:

    • Administration of Estates, Act No.20 of 1972

    • Adoption of Children Act

    • Affiliation Proceedings Act

    • Birth and Death Registration Act

    • Botswana Constitution

    • Children’s Act

    • Citizenship Act

    • Deserted Wives and Children’s Protection Act

    • Employment Act

    • Education Act, including the Corporal Punishment Regulations 1968

    • Marriage Act (amended 2000)

    • Matrimonial Causes Act

    • Penal Code

    • Succession Act

Our review revealed the following.
  • The Constitution allows discrimination through its exceptions and because there is no right to non-discrimination on the basis of disability.  In practice, Basarwa / San children are ridiculed and insulted, including by teachers, and children with disabilities are discriminated against and not adequately integrated or receiving adequate access to social services.

  • Education is not recognised as a child’s right in Botswana in as much as education is not compulsory and the government is not required to provide it.  The implications are demonstrated by the fact that after choosing to provide free education more than 20 years, the government has just reintroduced fees at secondary school level. 

  • Corporal punishment in schools is permitted, which is in violation of the CRC.  Furthermore, its use is frequently abused.

  • There have been amendments to a number of laws which have reduced the discrimination between those born in and out of wedlock; however, there are still distinctions (in a country in which it has been found that over 86% of couples living together were not married – 2001, Central Statistical Office, Population Census).

  • The Acts do not take into account the views or other participation of the child.  The Constitution does not specifically give children the right to be listened to.  There is a Youth Parliament and opportunities for it to publish its views, but this provides very limited opportunity for children and young people’s participation.

  • There are no provisions for visitation rights of non-custodial parents in the case of children born outside marriage – typically the father, although the father is responsible for maintenance payments.  Where a child is born in wedlock, custody is traditionally granted to the father’s family, with the mother only having the right to visit.  In neither situation does the child receive his/her right to be cared for by both parents.  The Act doesn’t take account of the child’s views, although the courts have ruled that they should take account of teenagers’ views.

  • In the case of children born out of wedlock, the Birth and Death Registration Act does not require registration of the father.

  • Although the Marriage Age states that no person below the age of 18 years may marry, under customary law a child can be married off below 18 and girls can be forced into marrying someone against their will.  When they marry, they are forced to leave school.

  • Adoption law is based on the best interests of the child.  However, many people are unaware of the Act and follow customary practices of giving their child to another family, typically a relative, without necessarily making decisions in the best interests of the child.  Where at least one of the child’s parents is foreign, this can lead to the young person becoming an illegal immigrant if the child does not register for Botswana citizenship at the age of 18.

  • The Employment Act sets conditions for employment under and over the age of 14.  The Act is in accordance with the CRC and the African Charter on the Rights and Welfare of the Child (ACRWC), other than the minimum wages issues in the ACRWC.  However, there is evidence that this law is not being adhered to, especially in remote area farmers were there are significant reports of child labour.  As HIV/AIDS has increased child-headed households, children are often economically forced to work. 

  • We agree with the Committee on the Rights of the Child that Botswana has set too low an age for responsibility, being 8 years.

Customary Law

The majority of Batswana (the people of Botswana) place greater confidence in the traditional structures than in centralised legal systems.  Therefore, any efforts to change attitudes towards children’s rights and to reduce violations such as forced child marriages need to build on positive attributes of Botswana culture, such as participation and courteousness.

In Botswana, 90% of civil and 85% of criminal law is delivered through Customary Courts (the rule of the Chief).  Customary Law therefore varies in different parts of the country depending on different groups’ cultures and practices, and on the attitudes of the ChiefThe areas of conflict between Common Law and Customary Law or common practice therefore present a considerable challenge.

For this reason, concurrently with the legislative review, the Government of Botswana and UNICEF undertook a review of “The Convention on the Rights of the Child, Legislative Reform and Customary Law” in Botswana, which reported in November 2004.  DITSHWANELO was also involved in this multi-sectoral Reference Group.

The Reference Group, aware that many people in Botswana are concerned that children’s rights are “foreign concepts intended to be imposed on people who have their own systems of law”, recognised the importance of establishing the concept of children’s rights within Botswana’s cultural norms.  It reached the following conclusions:

  • The focus of change must not be merely on the law.

  • People will place much greater confidence in the structures of authority and processes of customary law than in centralised legal systems and Parliament.  Children’s rights must, therefore, be presented as consistent with these customs.  The attributes of customary law which the review recognised as most compatible with children’s rights are:

    • The importance of social cohesion, as opposed to individualism

    • Mediation and reconciliation

    • Participation

    • Courteousness

    • Self discipline

  • Customary law is not static, it is refined and changed through mechanisms such as Kgotla (village meeting place) discussions, repeat assessments, analysis and actions – which can be stimulated by law reform.

  • Children’s rights must be presented as consistent with Botswana’s strong sense of the need to discourage irresponsibleness, by placing an equal stress on correlative duties and responsible enjoyment of human rights – captured in the Setswana term ‘botho’.

  • All proposals must be developed and implemented through a truly consultative process, including with children.

For example, some of the misunderstanding of the CRC appears to be due to partial quoting or quoting it out of context, particularly the exclusion of Article 5 which specifies the “responsibilities, rights and duties of parents [and carers] … to provide … appropriate direction and guidance in the exercise by the child of [his/her] rights”.

Solutions

This section will continue to be updated as DITSHWANELO works – in partnership with other organisations such as UNICEF and Childline – to develop ways in which to reconcile “children’s rights” and Botswana’s culture.

Solutions are likely to include:

  • Legislative reform – as detailed above.

  • Improving the media’s coverage of children’s rights issues

  • Encouraging organisations working with children, in particular, to become more child-centred in their approach and their materials – and our research found that many of them are not. 

  • Producing resources specifically for children, of which there are very few in Botswana and those imported from other countries are only in English.  There is clearly a major shortage of information available to children or those trying to assist them (e.g. teachers) regarding their rights, means of support, etc.

  • Improving the quality of teaching in schools about all aspects of human rights, including children’s own responsibilities.  To do this, it is likely to be necessary to improve teachers’ own understanding and support for children’s rights or wider human rights.  There is clearly considerable variation in the quality of teaching about these issues and it appears that teachers’ personal views play a significant role in what children and young people are taught.  There appears to be a shortage of teaching resources. 

  • Improving children and young people’s access to counselling, legal advice and other sources of support, in such a way that even those in remote parts of the country have access.

For further information about DITSHWANELO’s work in children’s rights, see our Children & Human Rights Programme. 

Links

The UN’s “Violence against Children in the Eastern and Southern Africa Region: The problem, actions taken and challenges outstanding”, 2005, can be found at [www.violencestudy.org/IMG/doc/EasternSouthernAfrica_report_JK_FINAL_12_June.doc]

Education International is a worldwide trade union organisation of education personnel working in all sectors of education.

The following organisations have human rights education resources for teachers and/or students:

Excellent booklets full of resources for teachers of human rights, at all school ages, are available from the UN Teachers Kit

Amnesty International has a Human Rights Education team which provides a number of teacher resources online, including Includes Siniko, which is a manual specifically for teachers and educators in the Africa region who work with young people both in the formal and non-formal educational environments who want to introduce human rights in their teaching practices.  This can be downloaded as a pdf.  The USA Amnesty Education site also appears to have some resources which may be relevant.

Anti-Slavery International includes resources for use in schools and youth centres, such as assembly ideas and classroom activities related to slavery.

Association mondiale pour l’ecole instrument de paix (World Association for the School as an Instrument of Peace) EIP publishes materials for use in schools, including in English.  These can be accessed online & include 100 and 1 Terms for Human Rights Education which literally explains 101 human rights terms.

Human Rights Education Associates – HREA provides extensive resources for educators, including an online resource centre for human rights education.  It also provides a section on International Days, with resources for each one.
 
Human Rights Network International – HRNI is a comprehensive database of resources on human rights systems and laws; on specific rights and freedoms and the institutions and jurisdictions which provide protection and guarantees of these rights; and on a number of specific rights related matters such as corporate responsibility and civil society.  Under each issue it provide information about the specific and general instruments protecting the right, together with links to articles, websites, reports and other publications relating to the specific right.  It also provides a summary of and link to further information about case law on the subject, including relevant case law websites.  And it provides information and links to human rights actors in the relevant field.

Institute for Democracy in South Africa – IDASA produces teaching materials which appear to be mainly South African, but include some regional issues.

Oxfam International provides some useful resources, including within their Policy & Analysis documents.

Peace Child International is a network of more than 500 secondary school student groups in 120 countries, run by young people in partnership with adult professionals.  The network is intended to empower young people to take responsibility for peace, human rights and the environment through education, leadership development and direct participation in the events that shape our world community. The site includes  some downloads for young people.

People’s Movement for Human Rights Education – PDHRE is a site dedicated to human rights learning and provides many online resources.  It provides information about the basis of rights under a wide range of categories, such as the elderly, disabled, migrant workers, women, children, refugees, etc.

Save the Children has an International Alliance website which includes international publications and resources, such as ‘Protecting children from sexual abuse and exploitation’ and various publications about children’s participation.  Most of the resources are studies about the situation facing children or policy documents, rather than resources for teaching children.

United Nations Children Fund UNICEF provides a range of information about the organisation and has several publications which could be of use in the classroom.  Its site for teachers provides a whole range of materials.

Universal Declaration of Human Rights – UDHR: includes the declaration and an index of a wide range of information and resources about the Declaration, in a wide range of languages.

World Federation of United Nations Associations – WFUNA is a people’s movement for the UN which includes youth membership and a youth newsletter.


 

 

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