Ditshwanelo

PRESS RELEASE II ON THE 31ST ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

The African Commission on Human and Peoples Rights (ACHPR) sat in Pretoria, South Africa from 2 - 16 May 2002. During this 31st Session, Mauritania, Lesotho, Cameroon and Togo gave their Country reports stating how their respective countries had (or not) complied with and implemented the African Charter on Human and Peoples’ Rights.

Botswana has never presented a Country Report even though we accepted the African Charter on 17 July 1986. According to Article 62 of the Charter, “Each State Party shall undertake to submit every two years… a report on the legislative and other measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed by the present Charter”. DITSHWANELO – The Botswana Centre for Human Rights strongly urges the Government of Botswana to present a Country report to the African Commission at the 33rd session in 2003.

The African Commission has the mandate to promote and protect human and peoples’ rights. The consideration of Country reports forms part of the African Commission’s promotion mandate. Under this mandate, the Commissioners undertake promotional visits to Countries to which they are assigned, to monitor their human rights situations. They also listen to statements read by members of civil society from around Africa reporting on or seeking intervention from the Commission in relation to Human Rights situations in their respective countries. The Governments have the right to respond to the statements presented by members of civil society. At this session, DITSHWANELO presented a statement relating to the removal of the Basarwa from the Central Kalahari Game Reserve (CKGR). The statement appealed to the African Commission to ‘ensure the protection of the basic human rights of the San [Basarwa], to land, culture and identity and to be part of determining their own future’.

Under the protection mandate, the African Commission can receive communications (complaints) from Governments as well as from individuals and NGOs, relating to the violation of rights under the Charter. During this session, the Botswana Government was before the Commission in relation to two Communications brought against it on behalf of Ms Mariette Sonjaleen Bosch and Mr John Modise.

Ms Bosch was executed on 31 March 2001. Arguing the communication on behalf of the late Ms Bosch and her family were Mr Chidi Odinkalu of Interights (a UK based NGO) and Barrister Kier Starmer (SC). The State was represented by Attorney General Skelemani. The main arguments raised on behalf of Ms Bosch and her family were:

That the secret execution of Ms Bosch, without notice to her family and lawyers and without providing her any opportunity to seek further legal redress was in violation of her rights to a fair trial under the Charter
That the execution of Ms Bosch despite the Government’s knowledge that the matter had been brought before the Commission was in violation of Article 1 of the Charter. This article puts a duty on the member States of the Organisation of African Unity (OAU) to recognise the provisions of the Charter and undertake to adopt legislative and other measures to give effect to them.
That the clemency procedure was in violation of Article 4 of the Charter. This article prohibits the arbitary deprivation of life. The non-transparent nature of the clemency proceedings, the lack of notice of the clemency hearing and the lack of disclosure of the material placed before the President constitutes a fundamental breach of this right.

That the African Charter was not automatically applicable in Botswana. Section 51 of the Constitution of Botswana places a duty on the President to make a decision regarding clemency for a condemned prisoner and this duty cannot be abdicated because of the African Commission. Botswana is aware of the Commission but has to abide by its own laws.

That the notice given to Ms Bosch was in accordance with the Laws of Botswana which require a condemned prisoner to be given no less than 24 hours notice of the execution.

In the Modise matter, the Government of Botswana has not yet implemented the 2001 decision of the Commission in favour of Mr Modise. This relates to his right to Botswana citizenship. Interights has decided to hold private discussions with the Botswana Government concerning the implementation of the decision.