Ditshwanelo

We would like to congratulate the Commission for regularly providing the opportunity for Non-governmental organisations to inform it about the human rights situation on the continent.

The government of Botswana is known for its good record of democracy and respect for human rights. This is commendable. We do, however, note that Botswana has not submitted any State report to the African Commission. There are currently eight (8) overdue reports.

We would like to draw to the attention of the African Commission, the issue of procedures relating to the execution of the death penalty in Botswana. This is negatively compounded by the lack of appropriate experience of legal representatives and the lack of resources available to counsel representing accused persons due to the absence of a state legal aid system. These factors contribute to a violation of Article 7 of the Charter relating to fair trial.

Article 56 of the Charter stipulates the admissibility criteria to be applied to individual and similar communications. Of serious concern in the Botswana context is the requirement that the communication may only be sent after the exhaustion of local remedies, if any, unless it is obvious that this procedure is unduly prolonged. The effectiveness of the clemency procedure, which is the final local remedy before the execution of condemned prisoners, continues to be severely hampered. This, because:

There is lack of transparency relating to the procedures of the Clemency Committee, which is constituted under the laws of Botswana. The Committee advises the President, who makes the final decision on how to exercise his prerogative of mercy. We, DITSHWANELO - The Botswana Centre for Human Rights have, in 1999 and 2003, formally requested the Government of Botswana for information concerning the workings of the Committee and its procedures. To date, we have received no response.
The Committee does not inform the legal representatives and family of the condemned prisoner, of its decision. The condemned prisoner is only made aware that the clemency process has been completed when he or she receives the death warrant twenty-four hours before the execution. Neither the family of the accused nor the lawyers are officially informed of the decision. They learn about the execution by hearing about it on the radio news or reading about it in the newspapers.
Without due notice of the outcome of the clemency process, the condemned prisoner has virtually no time left to him to approach the African Commission. This amounts to a denial of the right of individuals to approach the African Commission after the exhaustion of local remedies. The most recent examples of this were the executions of the late Messrs Kobedi (July 2003) and Simon, Mokhobo and Tsae (September 2003)

We would like to, once again, draw the attention of the African Commission, to the situation of the San (Basarwa) peoples of the Central Kalahari Game Reserve (CKGR). The communities were effectively forceably relocated, by the Government of Botswana in February 2002. Since then, there has been inadequate access for the purpose of NGO engagement in the matter. The Negotiating Team (both NGO and San (Basarwa) based), which was set up to address concerns about the situation, has consistently attempted to engage the Government in constructive dialogue and negotiation. The matter was eventually taken to court in 2002, as a consequence of the reluctance of the Government to consider a negotiated process.

We appeal 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.