Ditshwanelo

We would like to, once again, draw to the attention of the African Commission the issue of the continued execution of the death penalty in Botswana. This is in violation of Article 7 of the Charter relating to fair trial.

There continues to be a lack of transparency relating to the procedures of the Clemency Committee, which is constituted under the laws of Botswana.

Following a decision of the Court of Appeal, the Clemency Committee advises the President, who makes the final decision on how to exercise his prerogative of mercy. In both 1999 and 2003, we, formally requested the Government of Botswana for information concerning the workings of the Committee, its procedures and the right of the condemned prisoner to be represented before the Committee, etc. To date, we have received no response.
Neither the Committee nor the Office of the President informs the legal representatives or the family of the condemned prisoner, of their decision. The condemned prisoner is only made aware that the clemency process has been completed when she or he receives the death warrant twenty-four hours before the execution. The family learns about the execution by hearing about it on the radio news or reading about it in the newspapers, after it has been conducted.

to recommend to the Government of Botswana that following a decision of the Court of Appeal in a capital case, once a communication has been submitted, clemency processes should be suspended until the final resolution of the communication.
to request the Government of Botswana for clarification concerning the procedures of the Clemency Committee, bearing in mind the need for compliance with Article 7 of the Charter concerning the right of every individual to have his cause heard and to ensure a regular proper and fair process.

The Constitutional (Amendment) Bill 2004 is currently before Parliament, following the
Presidential Balopi Commission in 2000, aimed at enacting amendments to make the Constitution
‘tribally neutral’. It is important that the amendments are made in accordance with Article 22 of
the Charter which relates to the right to economic, social and cultural development. There were
numerous submissions made to the Commission indicating that there was an urgent need to bring
the outdated 1965 Constitution, which recognizes civil and political rights, in line with
international human rights developments.

We urge the African Commission to encourage the Government of Botswana to engage in a
thorough consultative, participatory process aimed at a comprehensive review of the Constitution
to ensure that discrimination against indigenous and minority ethnic groups does not continue to
exist through the non-legal recognition of their economic, social and cultural rights.

We would like to draw the attention of the African Commission to the recently passed
Penal Code (Amendment) Bill 39 of 2004. This allows for corporal punishment to be
used as an alternative to imprisonment for all imprisonable crimes, except for murder,
rape and robbery. It applies to all male persons between the ages of 14 and 40 years. This
is in violation of Article 5 of the Charter which protects individuals from torture,
inhuman and degrading punishment.

This has been viewed as a method of dealing with the overcrowding in prisons. However, there is
need for appropriate alternatives to punishment in responding to this situation. These should be in
line with the African Union Robben Island Guidelines and other international instruments relating
to torture, inhuman and degrading treatment. Corporal punishment is also used as a form of
punishment in schools.

We again call upon the African Commission to send a fact-finding mission to Botswana
and to encourage the Government of Botswana to renew its commitment to international
principles for the protection and promotion of human rights.