HUMAN RIGHTS ISSUES

DITSHWANELO works to protect the rights of all Batswana and speaks out on a wide range of Human Rights issues, although as a small organisation we prioritise our efforts in areas which we believe are not addressed by other organisations in Botswana.

Human Rights in Botswana provides an overview of the key issues of concern in Botswana and is the introduction to the issues covered in Botswana Context, such as the Constitution, access to justice, poverty aspects of democracy and the rule of law in Botswana.

Details are provided in this section about each of the other issues of concern to DITSHWANELO, namely:
Gender equality
Children’s rights
HIV/AIDS and human rights
Ethnic minorities and indigenous peoples
Immigrants & refugees
Land rights
Lesbian, Gay and Bisexual Rights
Domestic workers' rights
Death penalty
Human rights in Zimbabwe

Other human rights concerns summarises other human rights concerns in Botswana, including prisons, torture and media independence.

What are human rights? provides background information and links. While Rights-based approach to development provides a summary of internationally accepted approaches to this issue.

WHAT ARE HUMAN RIGHTS AND HUMAN RIGHTS EDUCATION?

Definitions of human rights include:

“Human rights may be generally defined as those rights which are inherent in our nature and without which we cannot live as human beings.  Human rights and fundamental freedoms allow us to develop fully and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual and other needs.  They are based on humankind’s increasing demand for a life in which the inherent dignity and worth of each human being are accorded respect and protection.  Their denial is not only an individual and personal tragedy, but also creates conditions of social and political unrest, sowing the seeds of violence and conflict within and between societies and nations.”

“Universal moral rights which belong equally to all people simply because they are human.”

“Generally accepted principles of fairness and justice.”

“Human rights are moral codes that transcend all distinctions such as race, culture, sex and apply to everyone at all times.”

“Natural rights that do not have to be earned, bought or inherited.”

“People are equally entitled to them regardless of their sex, race, colour, language, national origin, age, class, religious or political beliefs.”

Human Rights are often broken down into three distinct categories:

Civil and political rights – sometimes referred to as “first generation rights”.  Civil rights include the right to chose and practice a religion, right to a fair trial, the right not to be tortured, the right to equality and non-discrimination before the law.  Political rights include the right to vote, to join any political party, to attend meetings, to be involved in community organisations, etc.
Social and economic rights – sometimes referred to as “second generation rights”, they relate to our right to participate in the social and economic development of the community, including the right to health care, education, food, shelter, work, etc.
Environmental, cultural and development rights – sometimes referred to as “third generation rights”.

Another way of categorising rights is as follows:
Non-derogable rights: such as the right to life, prohibition of torture and of slavery, legality of criminal offences and penalties.
Qualified rights: including the right to liberty and security, to freedom of movement, due legal process and effective remedy, freedom of expression and of association, etc.
Programmatic rights: such as labour rights, the right to social protection, cultural rights and the right to education.
Solidarity rights: including the right to peace and to development, environmental rights and the right of peoples to self-determination.
Rights of special groups: including groups such as indigenous peoples, children, women, refugees, detained persons, etc.

The Human Rights Network International – HRNI provides an extremely comprehensive database of resources relating to each of the above mentioned and many other 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.

The United Nations has created a detailed and internationally accepted definition of a broad range of human rights — including economic, social and cultural, as well as political and civil rights.  It has also established mechanisms with which to promote and protect these rights and to assist governments in carrying out their responsibilities, including a comprehensive body of human rights law and a range of UN bodies, almost every one involved to some degree in the protection of human rights.  For further details and links to publications, see UN Rights.  The Office of the UN High Commissioner for Human Rights – OHCHR site is also a gateway to all the key international human rights instruments, including print-friendly versions of them and details of countries’ ratification of them. 

See International & Regional Instruments for details of those international instruments which have been signed and ratified by Botswana.

Human Rights Education

DITSHWANELO’s Mission is to be an advocacy organisation with a key role in the promotion and protection of human rights … In pursuit of this mission, we seek to educate, research, counsel and mediate on issues of human rights….

As detailed on the UNESCO site , human rights education can be defined as education, training and information aiming at building a universal culture of human rights through the sharing of knowledge, imparting of skills and moulding of attitudes directed to:
The strengthening of respect for human rights and fundamental freedoms
The full development of the human personality and the sense of its dignity
The promotion of understanding, tolerance, gender equality and friendship among all nations, indigenous peoples and racial, national, ethnic, religious and linguistic groups
The enabling of all persons to participate effectively in a free and democratic society governed by the rule of law
The building and maintenance of peace
The promotion of people-centred sustainable development and social justice

RIGHTS-BASED APPROACH TO DEVELOPMENT

The Government of Botswana has invested substantial resources in the development of the country since Independence.  A great deal has been achieved, such as a very extensive network of schools, clinics, roads and other infrastructure.  DITSHWANELO applauds what has been achieved. 

However, we believe that the approach has been based too much on infrastructure, with insufficient participation of communities in their own development and too little focus on ensuring that development consciously promotes and provokes human rights.  Although the Government claims to consult people prior to making development decisions, this process is more akin to informing the people of its own development plans. 

We call on the Government of Botswana and other development-focused institutions to adopt a rights-based approach to development, which is applied consistently across different ministries and agencies of government.

What is a rights-based approach to development?

The following is a summary of UN information about a rights-based approach to development.  For full details, see UNHCHR.

Article 1 of the Declaration on the Right to Development says “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.”

There is no single, universally agreed upon rights-based approach to development.  However, broadly, it is a conceptual framework for the process of human development which is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.

It should integrate the norms, standards and principles of the international human rights system into the plans, policies and processes of a country’s development.  The norms and standards are those contained in the wealth of international treaties and declarations. The principles include equality and equity, accountability, empowerment and participation.

‘Development’ is defined by the Declaration on the Right to Development as a comprehensive economic, social, cultural and political process which should give equal attention and urgent consideration to the implementation of each of these components.  It specifies that the promotion of, respect for and enjoyment of certain human rights and fundamental freedoms cannot justify the denial of other human rights and fundamental freedoms.

A rights-based approach to development recognises that the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development.  It also recognises that development should be sustainable, therefore aiming to eradicate poverty, promote full and productive employment, and foster social integration to achieve stable, safe and just societies for all.

A rights-based approach to development includes the following elements:
Express linkage to rights, i.e. the objectives of development must be defined in terms of legally enforceable entitlements which are comprehensive in their consideration of the full range of indivisible, interdependent and interrelated rights: civil, cultural, economic, political and social. The development framework should include sectors that mirror internationally guaranteed rights, for example, health, education, housing, justice administration, personal security and political participation.
Accountability, based on creation of adequate laws, policies, institutions, administrative procedures and practices, and mechanisms of redress that can deliver on entitlements, respond to denial and violations, and ensure accountability.  The framework should identify the entitlements and obligations of individuals, States, local organisations and authorities, private companies, aid donors, international institutions and any other relevant actors, covering both positive obligations to protect, promote and provide; and negative obligations to abstain from violations.
Empowerment of the beneficiaries as the owners of rights and the directors of development, by giving people the power, capacities, capabilities and access needed to change their own lives, improve their own communities and influence their own destinies.
Participation by communities, civil society, minorities, indigenous peoples, women and others, in a way which is "active, free and meaningful".  This requires due attention to issues of accessibility, including access to development processes, institutions, information and redress or complaints mechanisms; and means situating development project mechanisms in proximity to partners and beneficiaries.
Non-discrimination and attention to vulnerable groups, including women, minorities, indigenous peoples and prisoners.  There is no universal checklist of who is most vulnerable, the question should be answered locally.  Development data should therefore be disaggregated by race, religion, ethnicity, language, sex and other categories of human rights concern.  Rights-based approaches should expressly safeguard the identified vulnerable groups; they should seek to empower such groups and expressly guard against reinforcing existing power imbalances.


OTHER HUMAN RIGHTS ISSUES

DITSHWANELO does not have the resources to proactively advocate for ways to redress every human rights violation taking place in Botswana.  In some cases, such as media independence, there are other organisations taking an active stance.  DITSHWANELO does, however, use all possible opportunities to raise awareness of these issues are part of our wider ranging work.

Further details are provided below about our concerns about:
Corruption
Prisons
Media control & freedom of expression

In brief, other human rights issues in Botswana include:
Allegations of torture and/or rape of persons held in the custody of the Botswana Police Force, the Botswana Prison Service, the Botswana Defence Force and the Department of Wildlife & National Parks.  Accusations regarding the latter relate to violations against Basarwa / San living in and near the Central Kalahari Game Reserve.
Some 39.5% of the formal sector workforce is in the public sector according to the International Monetary Fund, one of the very highest such figures in the world. This dominance has resulted in a marked dependence and reliance on a governmental response to events. The traditional virtue of self reliance has been weakened and the traditional attitude of self-help (“ipelegeng”) has largely vanished. All of this has contributed to a weak civil society.

CORRUPTION

According to the 2005 report of the international corruption watchdog, Transparency International, Botswana is the least corrupt country on the African continent and the best in the world, and has improved its rating since their 2004 report.  Where 10 is ‘squeaky clean’, and 5.0 is the borderline figure distinguishing countries that do and do not have a serious corruption problem, Botswana scored 5.9.  (For details, see Transparency).  This is positive, but not perfect.

DITSHWANELO has not undertaken any independent research into the level of corruption in Botswana.  The following summarises publicly available reports and suggests that there remain areas in which Botswana could improve its corruption record and limit the potential for corruption to take place.  In summary, Botswana has most of the key components that inhibit the culture of corruption, but there are questions about whether they are being used as effectively as possible to prevent abuses and corrupt practices. 
Botswana has a functioning democratic electoral system, overseen by an Independent Electoral Commission, as detailed in Political System & Democracy in Botswana. 
Botswana has separation of powers between the Executive, Legislature and Judiciary which is provided for in the Constitution and practiced, although not completely effectively, as detailed in Botswana’s Legal System. With the recent investigation of the number of  Cabinet Ministers and consequently the number of Ministers in Parliament, the impartial distinction between the executive and the legislative risks becoming blurred.
Botswana’s media has been active in exposing corruption and mismanagement, which has led directly to investigations, including the establishment of Presidential Commissions.
Botswana has established:
An Office of the Auditor-General, which audits the use of all public funds and whose independence is protected by the Constitution.  The role is protected by security of tenure.
The Central Tender Board (CTB), which deals with all major public procurements, including at the district level, through a centralised tender process.
A Directorate on Corruption and Economic Crime (DCEC) set up as an operationally independent law enforcement agency.  Its independence is limited, however, by the fact that it is under the Office of the President and reports directly to the President, rather than to Parliament.  There is also no provision for security of tenure for the Director. 
An Office of the Ombudsman’s Office.  However, like the DCEC, its independence and autonomy are limited because it was established as part of the public service, meaning, for example, that officers may find themselves being expected to investigate the office responsible for their own promotion.
A Public Accounts Committee which monitors and controls public accounts and has a wide mandate and authority to examine documents and call for evidence from public servants, including Permanent Secretaries and their Finance Officers. It reports cases of financial impropriety directly to Parliament.
It is of concern that several of the mechanisms set up to limit corruption – such as the Directorate on Corruption and Economic Crime (DCEC) – report directly to the President, rather than to Parliament.  Where institutions do report to Parliament, such as the Office of the Auditor General and the Public Accounts Committee, Parliament does not always devote sufficient time to discussing the findings nor take action on the reported violations.  As a result, the same problems are re-reported in subsequent reports.
Weaknesses reported by the Auditor General relate to loss of public money, accidents involving public vehicles, violations of proper procedures, failures to retire imprests.
The Government has the political will to rid the nation of any traces of corruption; as indicated by its slogan, “zero tolerance of corruption”.  However, there is no clear anti–corruption strategy.
A number of organisations set up to monitor and act against corruption complain about a lack of staff to adequately fulfil their role, including the Attorney-General’s Chambers, responsible for all public prosecution, the Office of the Auditor-General and the DCEC.  In the case of DCEC, it does not have its own staff to prosecute cases, but must rely on those of the Attorney-General’s Chambers, which is itself over-stretched.

There are ongoing newspaper reports that the DCEC has not tackled a significant number of high profile cases involving ‘big fish’, but rather focuses most of its attention on cases involving fairly junior officers.  The latter cases include issues such as fraudulently obtained drivers' licences and work/resident permits, and involved officers such as Revenue Officers, Cleaners, Transport Officers and Immigration Officers. 

Professor Frimpong in his 2001 “National Integrity Systems: Country Study Report”, pointed out that there is likely to be a higher level of corruption among junior officers in Botswana’s local government and district council levels where junior officers are often given high levels of responsibility, for example for procurement, without any direct supervision by suitably trained staff or from the central government.  Tender procedures can therefore be ignored easily.  Given the insufficient supervision, the temptation is likely to be greatest when the officer is lowly paid yet has to deal with matters of interest and importance to the public, such as the issuing of licenses, allocation of land and the granting of certain benefits.

However, although there may continue to be a high incidence of corruption at this level, there continue to be serious allegations of corruption at the highest level which are not perceived to have been addressed by the DCEC.  Recent accusations range from claims that the Central Tender Board’s campaigns to remove corrupt officials have actually been used as an opportunity to get rid of the most principled officers so as to avoid exposing corruption, to claims of financial mismanagement in government departments and parastatals. 

DCEC has claimed that it has the power to operate at the highest level, but the accusation has been made that people will not provide them with the required confidential information because they do not trust them not to betray the source.

It is suggested that the government should set up a Special National Commission of Inquiry on Corruption, whose primary mandate would be to examine existing operations, rules, regulations and procedures of public bodies.  The aim would be to discover corrupt practices and also to initiate a wholesale revision of methods of work, practices and procedures which create the opportunity or motivation for corruption, thereby seeking to prevent corruption from taking place.

In conclusion, DITSHWANELO calls on Parliament to: 

Develop a comprehensive strategy for achieving zero corruption.
Amend the Act to create true independence and autonomy for the Directorate on Corruption and Economic Crime (DCEC) and the Ombudsman’s Office.
Encourage the DCEC to investigate corruption cases at the highest possible level, providing it with the autonomy and resources it requires to do so.
Also increase the resources available to the Attorney-General’s Chambers and the police.
Improve the supervision and controls at local and district levels of government.
Act on the findings of the Auditor-General’s Annual Reports.
Treat the Public Accounts Committee as the public watchdog over government finances and take its reports seriously.

PRISONS

According to newspaper reports, Botswana’s Minister for Labour and Home Affairs and the Commission of Prisons are well aware of the key problems in Botswana’s prisons, particularly overcrowding, which has caused acute accommodation problems – including reports of prisoners sleeping in toilets, difficulties for rehabilitation and healthcare, inappropriate mixing – including in the same room – of prisoners convicted of different crimes and mixing of prisoners awaiting trial with convicted criminals, and many other related problems.

There are a number of other problems reported with Botswana’s prison system.
The government has attempted to reduce the overcrowding problem by extending the use of corporal punishment, which is inhumane and degrading. There are also reports of abuse of the system.
There are reports of discrimination between rich and poor, both in the justice system and in prisons.  That a much higher proportion of poor people go to jail than wealthy people certainly reflects the relationship between poverty and crime, and the much greater ability of those with wealth to afford (better) lawyers; but the reports also suggest an institutional bias against the poor.
The system lacks means for prisoners to file complaints against prison warders.
There can be a lengthy period of time before a remand prisoner comes to trial.
It is current policy not to provide condoms in prison, because of the implication that this would be seen as condoning sodomy, which is illegal.  However, the policy effectively contributes to the spread of HIV/AIDS and deaths in custody.
Four years after a report on HIV/AIDS prevention in prisons, there is still insufficient counselling and other support being given to HIV positive inmates.

The King’s College, London’s, International Centre for Prison Studies provides a prisons brief for Botswana which states that as at 3/12/2004 there were 6,105 prisoners in Botswana,including pre-trial detainees / remand prisoners, and including 463 in the Centre for Illegal Immigrants, according to the National Prison Administration.  This figure compares with a prison capacity of 3,870;3,366 in the prisons, 504 in the Centre.  This report suggests 2,276 more people in prison (excluding the Centre for Illegal Immigrants) than capacity; i.e. 40% more people than places.

According to the International Centre for Prison Studies report, the number of pre-trial detainees / remand prisoners as a percentage of the prison population, as at 3/12/2004, was 25.1%.  The Prison population rate is 339 per 100,000 of national population (based on 1.8 million, UN estimate at mid 2004).

During September 2007 the Botswana Police has reported that from 2003 to 2006, crime per 1000 population has been decreasing notably at 0.99 per cent (Source)

Factors contributing to these prison statistics include limited human and material resources for the law enforcement agencies, weak legislation that is deemed to favour criminals, the lack of any form of Legal Aid and failure to take precautions by the public.  The Vision 2016 Council also claims that the rate at which suspects on bail continue to be involved in further acts of crime is alarming.

MEDIA CONTROL & FREEDOM OF EXPRESSION

In international terms, the media in Botswana has been relatively free in both theory and practice.  However, there are ongoing concerns about government ownership and control of state-owned media and about freedom of expression, as detailed below.

Media ownership and control

Botswana has one, state-owned Television Station, launched in October 2000 and three radio stations, two of which are private and came into operation in 1999. The two private radio stations are FM stations and do not have wide coverage, their operations being mainly within the capital, Gaborone.  The state-owned radio station has national coverage.

Botswana enjoys the circulation of nine newspapers. These are:
The Daily News
The MMEGI/The Reporter
The MMEGI MONITOR
The Botswana Guardian
The Midweek Sun
The Botswana Gazette
The Mirror
The Voice
The Sunday Tribune
The Tswana Times

The Daily News is owned by the government and is its mouthpiece.  The rest are privately owned.

This state ownership and control is in contrast to the ‘public media’ of South Africa (SABC) or Britain (BBC), where the public media corporations are statutory bodies, not owned by the government, and operating free of government control.

There has been considerable debate during 2006 about the lack of competition between the state-owned media and the privately owned media. 

DITSHWANELO two major concerns.

Firstly, the state-owned media is subsidised allowing it to be distributed free of charge, its staff are civil servants and it uses the Government Printer without paying for its services.  By contrast, private, but not government broadcasters, require a licence to operate which may include requirements that limit the scope of the private practitioner. The private media operate under the Companies Act and are expected to pay company tax and value added tax (VAT), while the government media is not subject to those conditions of operation and costs.

Secondly, the official media have often been accused of being biased in favour of the ruling party.  For example, just before the 2004 general elections, the then Minister of Communications, Science and Technology, Boyce Sebetela, apparently insisted that President Festus Mogae and Vice President Ian Khama should be given full television coverage by BTV in their campaigns.  Members of the opposition have been known to protest that the government media has given more publicity to the ruling party than to their parties.

DITSHWANELO therefore joins the call for the government to create a Botswana Media Corporation which is fully independent of government control.  If the Daily News were to be sold at a competitive price, consumers would be able to indicate their real view of the newspaper.

Freedom of expression

There is no Constitutional provision that specifically protects freedom of the press, although Article 12(1) guarantees freedom of expression and it can be argued that the freedom of the media falls under this wide umbrella provision.  Section 12(2), however, puts limitation on the freedom of the media 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 cannot limit the freedoms provided in section 12(1). 

Furthermore, under some other laws, the government can limit the freedom of the press.  Among these laws are the Intelligence and Security Services Bill, No 23 of 2007, National Security Act, the Police Act, the Presidential Privileges Act and Corruption and Economic Crime Act.  For instance, section 44 of the Corruption and Economic Crime Act makes it an offence to divulge information relating to an ongoing investigation, including the identity of any person who is the subject of such an investigation.

In addition, there are laws that threaten freedom of expression; some still in the pipeline and others in operation, such as the Cinematograph Act which requires anyone who takes pictures to first seek permission from the Office of the President. 

Nevertheless, the privately-owned media have been active in exposing and fighting corruption and abuses in government.  However, in isolated cases, the Government has tried to muzzle the private media houses which have spoken out against the government or its ministers.  One way it has done this is by deporting foreign journalists.  This happened, for example to Zambian Journalist, John Mukela, who was deported in August 1987, only two months after being named editor of the Guardian newspaper. 

Recently there have been several accusations about the government acting directly against certainly newspapers by banning public sector advertising in them. For example, in April 2001 a directive from the Office of the President instructed all Government Ministries and Departments, parastatals and private companies in which the Government is a shareholder “to cease advertising in the Guardian and Sun Group of papers”. This directive was issued because the two publications had been critical of the government and some leaders of the country.  In the Government’s view the publications fell within the realm of irresponsible reporting and the exceeding of editorial licence.

However, the two newspapers challenged the Government’s action in court and were granted an injunction in September 2001 preventing the government from implementing the directive. However, the challenge failed to set the kind of legal precedent that would render illegal any similar government censorship in the future.

The country’s private media remain restricted to the country’s major towns, and tend to cater for the elite.

Publications
CERD Shadow report, 2006 by DITSHWANELO

Press Releases

Publications
DITSHWANELO's Statement at the 34th Ordinary Session of the African Commission Human and Peoples' Rights - 10 November 2003

Reply by Botswana at the 34th Ordinary Session of the African Commission on Human and Peoples' Rights

African Commission Statement by DITSHWANELO - 2002

CERD (Committee on the Elimination of Racial Discrimination) Concluding Observations on Botswana - 2002

CERD Shadow Report - 2002.  By DITSHWANELO.

Universal Declaration of Human Rights

Torture in Botswana: A Preliminary Assessment - 1998.

Report of the Conference on Human Rights and Democracy - 1998

DITSHWANELO Discussion Document on the Proposed Mass Media Communications Bill - 1997.

Mochudi Civil Unrest - 1995 (unpublished).

Briefing from DITSHWANELO - The Botswana Centre for Human Rights on the Corruption and Economic Crime Bill No. 8. - 1994.