United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1995 - Botswana, 30 January 1996, available at: http://www.refworld.org/docid/3ae6aa368.html [accessed 31 January 2015]
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BOTSWANA Botswana is a longstanding, multiparty democracy. Constitutional power is shared between the President, Sir Ketumile Masire, and the 44-member popularly elected lower house of parliament. The ruling Botswana Democratic Party (BDP), continued to dominate the National Assembly, holding 31 of 44 seats. The opposition Botswana National Front (BNF) holds the remaining 13 seats. In October 1994, the President was reelected in free and fair elections for a third 5-year term. The Government respects the constitutional provisions for an independent judiciary. The civilian Government exercises effective control over the security forces. The military, the Botswana Defense Force (BDF), is responsible for external security. The Botswana National Police (BNP) are responsible for internal security. Members of the security forces occasionally committed human rights abuses. The economy is market-oriented with strong encouragement for private enterprise. Steady diamond revenues and effective economic and fiscal policies resulted in steady growth, although the economy grew at a relatively modest annual rate of 4 percent following a downturn from 1991 to 1993. Per capita gross domestic product was approximately $2,800 in 1995. Over 50 percent of the population is employed in the informal sector, largely subsistence farming and animal husbandry. Rural poverty remains a serious problem, as does a widely skewed income distribution. The Constitution provides for citizens' human rights, and the Government generally respects those rights in practice. Despite some continuing problems, Botswana's overall human rights record has been consistently positive since independence. There were credible reports that the police sometimes mistreated criminal suspects in order to coerce confessions, and members of the police riot squad were accused of using excessive force in quelling violent student demonstrations in February. Women continued to face legal and societal discrimination, and violence against women is a continuing problem. Some Batswana including groups not numbered among the eight "principal tribes" identified in the Constitution, because they live in remote areas, still do not enjoy full access to social services and, in practice, are marginalized in the political process. In many instances the judicial system did not provide timely fair trials due to a serious backlog of cases. Trade unions continued to face some legal restrictions, and the Government did not always ensure that labor laws were observed in practice. The Government took a number of steps to address human rights problems in 1995. In September the Government announced plans to construct a separate detention facility for refused asylum seekers, and in August Parliament ratified the Citizenship Amendment Act, designed to bring Botswana legislation into conformity with the Constitution, and remedy citizenship gender inequities. In March Botswana ratified the International Convention on the Rights of the Child.
Respect for Human Rights
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
There were no reports of political killings. In a case related to February's violent student protest, a member of the riot police (the Special Support Group - SSG) was convicted of the murder of a young man who apparently had no connection with the demonstrations. Hearings in mitigation of sentence were scheduled for February 1996.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution explicitly forbids torture, inhuman, and degrading treatment or punishment. The authorities generally respect this prohibition in practice, and in some cases have taken disciplinary or judicial action against persons responsible for abuses. However, instances of abuse do occur. While coerced confessions are inadmissible in court, evidence gathered through coercion or abuse may be used in prosecution. There were credible reports that police sometimes used intimidation techniques in order to obtain evidence or elicit confessions. In the past, police sometimes suffocated criminal suspects with a plastic bag. In 1995 there were no allegations of similar mistreatment, and beatings and other forms of extreme physical abuse remained rare. In February some poorly trained members of the SSG reportedly used excessive force to quell violent student demonstrations over the Government's failure to prosecute suspects in a ritual murder of a 14-year-old girl. In separate incidents related to the demonstrations, one person was killed and another paralyzed. Several students arrested after the riots alleged police assault. Students who had been detained were released and charges against them dropped. Unlike past years, there were no reports that Department of Wildlife and National Parks (DWNP) wardens tortured suspected poachers in remote areas. Both the DWNP and the rest of the Government have long condemned such practices. Prison conditions meet minimum international standards, although overcrowding is a problem. The Government permits visits by human rights monitors, and women in custody are placed in the charge of female officers. The Government neither forcibly repatriates nor deports failed asylum seekers, but it has incarcerated them alongside convicted felons. By mid-year all previously incarcerated asylum seekers had been permitted to move to Dukwe Refugee Camp, and only a few new arrivals suspected to be economic migrants were being incarcerated. In September the Government announced plans to build a dedicated facility for refused asylum seekers.
d. Arbitrary Arrest, Detention, or Exile
Under the Constitution "every person in Botswana" is entitled to due process, the presumption of innocence, and freedom from arbitrary arrest. The authorities respected these guarantees in practice. Upon arrest, suspects must be informed of their legal rights, including the right to remain silent, to be allowed to contact a person of their choice, and generally to be charged before a magistrate within 48 hours. A magistrate may order a suspect held for 14 days through a writ of detention, which may be renewed every 14 days. Most citizens charged with noncapital offenses are released on their own recognizance; some are released with minimal bail. Detention without bail is highly unusual, except in murder cases, where it is mandated. Detainees have the right to hire attorneys of their choice. Poor police training and poor communications in rural villages make it difficult for detainees to obtain legal assistance, however, and authorities do not always follow judicial safeguards. The Government does not provide counsel for the indigent, except in capital cases, and there is no public defender service. Two nongovernmental organizations (NGO's)--the University of Botswana Legal Assistance Center and the Botswana Center for Human Rights--provide pro bono legal services, but their capacity is limited. Constitutional protections are not applied to illegal immigrants, although the constitutionality of denying them due process has not been tested in court. Following student demonstrations in February (see Section 1.c.), police arrested several hundred persons. All detainees were subsequently released and charges were dropped. The Government does not use exile for political purposes.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary, and the Government respects this provision in practice. The judiciary consists of both a civil court (including magistrates courts, a High Court, and a Court of Appeal) and a customary (traditional) court system. The law provides for the right to a fair trial. The civil courts remained unable to provide for timely, fair trials in many cases, however, due to severe staffing shortages and an accumulated backlog of pending cases. The courts are making a major effort to clear this backlog, especially in murder cases. Most trials in the regular courts are public, although trials under the National Security Act (NSA) may be held in secret. As a rule, courts appoint public defenders only for those charged with capital crimes (murder and treason). Those charged with noncapital crimes are often tried without legal representation if they cannot afford an attorney. As a result, many defendants may not be informed of their rights in pretrial or trial proceedings. Implementation of the 1994 Anticorruption Act assuaged earlier concerns that it would weaken the defendant's constitutional presumption of innocence. Most citizens encounter the legal system through the customary courts, under the authority of a traditional leader. These courts handle minor offenses involving land, marital, and property disputes. In customary courts, the defendant does not have legal counsel and there are no precise rules of evidence. Tribal judges, appointed by the tribal leader or elected by the community, determine sentences, which may be appealed through the civil court system. The quality of decisions reached in the traditional courts varies considerably. In communities where chiefs and their decisions are respected, plaintiffs tend to take their cases to the customary court; otherwise, people seek justice from the civil courts. There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution provides for the protection of privacy and the security of the person, and government authorities generally respect these rights.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and the Press
The Constitution provides for freedom of expression, both individual and corporate, and the Government respects this right in practice. Botswana has a long tradition of vigorous, candid, and unimpeded public discourse. The independent press is small, but lively and frequently critical of the Government and the President. It reports without fear of closure, censorship, or intimidation. The Government also subsidizes a free daily newspaper which depends heavily on the official Botswana Press Agency (BOPA) for its material. The broadcast media remain a government monopoly, with radio the most important medium of information in this highly dispersed society. Radio Botswana follows government policies and draws most of its stories from BOPA. Opposition leaders have access to the radio, but they complain--with some justification--that their air time is significantly limited. There are no privately owned radio or television stations, but there is a semilegal television station broadcasting to viewers in the capital city. Independent radio and television from neighboring South Africa are easily received. On occasion the Government has taken steps, under loosely defined provisions of the NSA, to limit publication of national security information. However, the courts dismissed in March the only recent case, filed in 1993, against two journalists. Academic freedom is not restricted.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for these rights, and the Government respects them in practice.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government respects this right in practice.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
There are no barriers to domestic and international travel or migration. Citizenship is not revoked for political reasons. The Government cooperates with the U.N. High Commissioner for Refugees and other humanitarian organizations in assisting refugees. There were no reports of forced expulsion of those having a valid claim to refugee status. While asylum seekers entering Botswana are still occasionally placed in prisons with convicted felons on arrival, the Government has made substantial progress in providing a more secure environment for those whose applications for permanent asylum have been rejected. In August it released a number of failed asylum seekers from prison and permitted them to reside at Dukwe Refugee Camp, and in September announced plans to build a separate facility for asylum seekers.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
The Constitution provides citizens with the right to change their government peacefully, and citizens exercise this right in practice through periodic, free, and fair elections held on the basis of universal adult (21 years) suffrage. The Botswana Democratic Party continued to dominate Parliament following the October 1994 elections, ensuring the reelection of BDP leader Sir Ketumile Masire as President. The opposition Botswana National Front, the only opposition party to win seats, increased its representation from 3 to 13 seats. The House of Chiefs, an advisory upper chamber of Parliament with limited powers, is constitutionally restricted to the eight "principal tribes" of the Tswana nation. Consequently, other groups (e.g., the Basarwa "bushmen," Herero, Kalanga, Humbukush, Baloi, or Lozi) are not represented there. Given the limited authority of the House of Chiefs, the impact of excluding other groups of Botswana citizens is largely symbolic, but it is viewed as important in principle by some non-Setswana speakers. Members of the National Assembly are required to be able to speak English. This restriction has never been challenged in court. In practice, women are underrepresented in the political process. Although women constitute just over 50 percent of the population, there are only 4 women among the 44 members of the National Assembly, and only 2 women in the Cabinet.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Domestic and international human rights groups operate without government restriction, investigating and publishing their findings on human rights cases. Government officials are generally cooperative and responsive to such inquiries.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution and Penal Code forbid discrimination on the basis of ethnicity, nationality, or creed, but do not address discrimination based on sex. These provisions are implemented in practice by the government authorities.
Violence against women, primarily beatings, remains a serious problem. Under customary law and in common rural practice men have the right to "chastise" their wives. Statistics are believed to underreport the levels of abuse against women. Police are rarely called to intervene in cases of domestic violence, and there were no court cases related to domestic violence in 1995. Spousal abuse is beginning to receive increased attention both from the media and from local human rights groups. Women in Botswana do not have the same civil rights as men. However, one important step was the resolution of the "Unity Dow" case through the ratification of the Citizenship Amendment Act in August. This Act brought an end to discrimination against women in transmitting citizenship to children. A number of other laws, many of which are attributed to traditional practices, restrict civil and economic opportunities for women. A woman married in "common property" is held to be a legal minor, requiring her husband's consent to buy or sell property, apply for credit, and enter into legally binding contracts. Women have, and are increasingly exercising, the right to marriage "out of common property," in which case they retain their full legal rights as adults. Polygyny is still legal under traditional law and with the consent of the first wife, but it is rarely practiced. The Government announced its intention to review all potentially discriminatory legislation, although the precise modalities of this review had not been finalized at year's end. Well trained urban women enjoy growing entry level access to the white collar job market, but the number of opportunities decreases sharply as they rise in seniority. Discrimination against women is most acute in rural areas where women work primarily in subsistence agriculture. A number of women's organizations have emerged to promote the status of women. The Government has entered into a dialog with many of these groups. While some women's rights groups reportedly felt that the Government has been slow to respond concretely to their concerns, women's NGO's say that they are encouraged by the direction of change, and by the increasingly collaborative relationship with government authorities. Within the Ministry of Labor and Home Affairs, the coordinator of the small Women's Affairs Unit is charged with handling women's issues.
The Government provides 7 years of education for children. The rights of children are addressed in the Constitution and the 1981 Children's Act. Under the Act, Botswana has a court system and social service apparatus designed solely for juveniles. There is no pattern of societal abuse against children. Botswana ratified the Convention on the Rights of the Child in March.
People with Disabilities
The Government does not discriminate on the basis of physical or mental disability, although employment opportunities for the disabled remain limited. The Government does not require accessibility to public buildings and public conveyances for people with disabilities, and the NGO community has only recently begun to address the needs of the disabled.
The Tswana majority, of which the Constitution recognizes eight principal tribes, has a tradition of peacefully coexisting with "minor" tribes. Each of the eight principal tribes is represented in the advisory House of Chiefs, while the other groups are permitted only a subchief, who is not a member of the House. Other than the lack of schooling in their own language and representation in the House of Chiefs, Botswana's Bantu minorities and nonindigenous minorities, such as the white and Asian communities, are not subject to discrimination. However, the nomadic Basarwa remain marginalized and have lost access to their traditional land. The Basarwa are vulnerable to exploitation, and their isolation, ignorance of civil rights, and lack of representation in local or national government have stymied their progress.
Section 6 Worker Rights
a. The Right of Association
The Constitution provides for the right of association, and in practice, all workers, with the exception of government employees, are free to join or organize unions of their own choosing. Government workers may form associations that function as quasi-unions but without the right to negotiate wages. The industrial or wage economy is small, and unions are concentrated largely in the mineral and to a lesser extent in the railway and banking sectors. There is only one major confederation, the Botswana Federation of Trade Unions (BFTU), but there are no obstacles to the formation of other labor federations. Unions are independent of the Government and are not closely allied with any political party or movement. Unions may employ administrative staff, but the law requires elected union officials to work full time in the industry the union represents. This severely limits union leaders' professionalism and effectiveness and has been criticized by the International Confederation of Free Trade Unions (ICFTU). In addition, the law severely restricts the right to strike. Legal strikes are theoretically possible after an exhaustive arbitration process, but in practice none of the country's strikes to date has been legal. Unions may join international organizations, and the BFTU is affiliated with the ICFTU. The Minister of Labor must approve any affiliation with an outside labor movement, but unions may appeal to the courts if an application for affiliation is refused.
b. The Right to Organize and Bargain Collectively
The Constitution provides for collective bargaining for unions that have enrolled 25 percent of a labor force. In reality, only the mineworker unions have the organizational strength to engage in collective bargaining, and collective bargaining is virtually nonexistent in most other sectors. Workers may not be fired for union related activities. Dismissals may be appealed to labor officers or civil courts, but labor offices rarely do more than order 2-months' severance pay. Botswana has only one export processing zone--in the town of Selebi-Phikwe--which is subject to the same labor laws as the rest of the country.
c. Prohibition of Forced or Compulsory Labor
The Constitution specifically forbids forced or compulsory labor, and it is not praticed.
d. Minimum Age for Employment of Children
Although education is not compulsory, the Government provides 7 years of free education to every child, and most children in Botswana take advantage of this opportunity. Only an immediate family member may employ a child 13-years-old or younger, and no juvenile under 15 years may be employed in any industry. Only persons over 16 years may be hired to perform night work, and no person under 16 years is allowed to assume hazardous labor, including in mining. District and municipal councils have child welfare divisions which are responsible for enforcing child labor laws.
e. Acceptable Conditions of Work
The minimum monthly wage for full time labor is $100 (270 pula), which is just under 50 percent of what the Government calculates is necessary to meet the basic needs of a family of five. The Ministry of Labor is responsible for enforcing the minimum wage, and each of the country's districts has at least one labor inspector. The Ministry of Labor began developing a small number of potential cases to take to the Industrial Court, but none had been brought before the Court by year's end. Formal sector jobs almost always pay well above minimum wage levels. Informal sector employment, particularly in the agricultural and domestic service sectors where housing and food are included, frequently pay below the minimum wage. The Ministry of Labor recommends a monthly minimum wage of $92.60 (250 pula) for domestics, but this is not mandatory. Illegal immigrants, primarily Zambians and Zimbabweans, are easily exploited as they would be subject to deportation if they filed grievances against employers. Botswana law permits a maximum 48-hour workweek, exclusive of overtime which is payable at time and a half for each additional hour. Most modern private and public sector jobs are on the 40-hour workweek. Workers who complain about hazardous conditions cannot be fired. The Government's institutional ability to enforce its workplace safety legislation remains limited, however, by inadequate staffing and unclear jurisdictions between different ministries. Nevertheless, worker safety is generally provided for by employers, with the occasionally notable exception of the construction industry.