PRESS RELEASE ON THE 34TH ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

The 34th Session of the African Commission on Human and Peoples Rights (ACHPR) was held in Banjul, The Gambia from 7 - 21 November 2003. DITSHWANELO - The Botswana Centre for Human Rights would like to congratulate Botswana Commissioner Ms Sanji Monageng, who was sworn in at this session.

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. Botswana has never presented a Country Report. There are currently eight (8) overdue reports. We committed ourselves to the African Charter on 17 July 1986. DITSHWANELO reiterates its call on the Government of Botswana to take concrete steps towards presenting a Country report at the African Commission sessions in 2004.

The eleven (11) Commissioners undertake promotional visits to Countries to which they are assigned, to monitor their human rights situations. They also receive updates on the situation of human rights in Africa. In this regard, they listen to statements presented by members of civil society, 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 about the death penalty and the situation of the Basarwa/San from the Central Kalahari Game Reserve (CKGR). The Government gave a response to the statement.

DITSHWANELO's statement drew to the attention of the Commission the continued use of the death penalty in Botswana and related issues. The African Commission is also concerned about the death penalty in Africa. In its Resolution passed during it's 29th session in November 1999, the African Commission urged African states to envisage a moratorium on the death penalty. In its resolution, the African Commission urges all States which still maintain the death penalty to "ensure that persons accused of crimes for which the death penalty is a competent sentence, are afforded all the guarantees in the African Charter". It also calls upon States to:

• limit the imposition of the death penalty only to the most serious crimes

• consider establishing a moratorium on executions of death penalty

• reflect on the possibility of abolishing the death penalty.

In its statement to the Commission, DITSHWANELO drew attention to the issue of procedures relating to the execution of the death penalty in Botswana. These are:

• lack of a fair trial for persons facing the death penalty. This is due to the inappropriate experience of legal representatives in death penalty cases and the lack of resources available to counsel representing them

• the lack of transparency of procedures of the Clemency Committee and the secrecy of execution. These deny the condemned prisoner an opportunity to seek further legal redress. This is in violation of the right to a fair trial under the Charter. 

DITSHWANELO's statement on the issue of the Basarwa/San from the CKGR, appealed to the African Commission to send a fact-finding mission to Botswana and to 'encourage the Government of Botswana, in line with its culture of dialogue, to continue with constructive discussion of this matter'. 

The response of the Government of Botswana to the statement made by DITSHWANELO, was presented by Mr P. B. Gunda of the Attorney General's Chambers. 

• the Government explained that it had not presented any Country report due to capacity constraints and that it had nothing to hide. However, the Government was silent on DITSHWANELO's call for the African Commission to undertake a fact-finding mission to Botswana. 

• the Government addressed the death penalty by stating that it was executed in accordance with the laws of Botswana. However, it did not address the factors which result in the lack of fair trial. It also did not address the issue of secrecy of executions. 

• the Government stated that they had provided development for the Basarwa/San, but that some of them had since moved back to the CKGR, 'away from the developments government brought to them'. However, the Government failed to recognise the basic human rights of the Basarwa/San, to land, culture and identity and to be part of determining their own future. DITSHWANELO believes that for development to be effective, it must be people-centred. This entails locating people at the centre of processes which recognise civil, political, economic, social and cultural aspects of their lives. The Government implied in its statement that because the Basarwa/San of CKGR are nomadic and 'move from one place to another', they 'had no permanent places of abode'. 

• the Government stated that it was 'still pursuing consultations' on the matter of the CKGR. DITSHWANELO has continued in its attempts to re-initiate constructive dialogue with the Government. However, to date these efforts have been frustrated.

• the Government stated that it viewed DITSHWANELO 'as a partner, rather than an adversary, in the development of Botswana', 

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. A decision is expected to be given regarding the communication against the Botswana Government on behalf of the late Ms Mariette Sonjaleen Bosch and her family. Ms Bosch was executed on 31 March 2001. The main arguments raised against the Government were: 

• the secret execution of Ms Bosch

• the execution of Ms Bosch despite the Government's knowledge that the matter had been brought before the Commission 

• the non-transparent nature of the clemency proceedings

At this session, the Commission accepted a communication relating to the late Mr Lehlohonolo Kobedi, in which similar issues have been raised. 

21 November 2003
Gaborone