United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1994 - Botswana, 30 January 1995, available at: http://www.refworld.org/docid/3ae6aa418.html [accessed 18 December 2014]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
Botswana is a multiparty, parliamentary democracy. The President exercises executive authority; Sir Ketumile Masire, was reelected for a third 5-year term in October. The ruling Botswana Democratic Party (BDP) continued to dominate the National Assembly, holding 31 of 44 seats. The opposition Botswana National Front (BNF) has the remaining 13 seats. The civilian Government exercises effective control over the security forces. The military, the Botswana Defense Force (BDF), and the Botswana National Police (BNP) are responsible for external and internal security. The economy is market oriented with strong encouragement for private enterprise. Steady diamond revenues and efficient economic and fiscal policies resulted in steady growth, although the rate slowed somewhat compared to the previous year. Per capita gross domestic product was approximately $3,100 in 1994. Over 50 percent of the population is employed in the informal sector, largely subsistence farming and animal husbandry. Rural poverty remains a serious problem. Respect for citizens' human rights is enshrined in the Constitution, and the Government has widely observed these rights. Despite a number of problem areas, Botswana's overall human rights record has been consistently positive since independence in 1966. However, there were credible reports that police sometimes mistreated suspects, especially during interrogation. The continued arbitrary detention of suspected economic migrants alongside convicted felons remained a serious problem in 1994. Women continue to face significant legal and societal discrimination, and violence against women is a growing problem. Groups not numbered among the eight "principal tribes" identified in the Constitution still do not enjoy full access to social services and 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 law were observed in practice.
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 or other extrajudicial killings.
There were no reports of 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. In the past, police sometimes suffocated criminal suspects with a plastic bag, but police beatings and other forms of extreme physical abuse are rare. A victim of police brutality filed and won a civil suit against the BNP in 1994; criminal charges are still pending. The Department of Wildlife and National Parks (DWNP) has law enforcement authority within the confines of the 40 percent of the country that is devoted to conservation. There were credible but unconfirmed reports that DWNP wardens sometimes tortured suspected poachers in remote areas. There was insufficient evidence for the DWNP or the courts to assemble cases against the alleged perpetrators. The DWNP and the rest of the Government condemn such practices, but the allegations continued in 1994. Prison conditions are generally acceptable, although overcrowding has increased in the last decade. The Government makes efforts to protect women in custody from rape and other abuse. Police placed arrested women in the charge of female officers to reduce the potential for mistreatment, and they keep female suspects and convicted felons in separate facilities from men. Sexual assault against women is not a problem in the prison system. The Government does not forcibly repatriate or deport failed asylum seekers, but does not always permit them to remain free. In the absence of a dedicated facility for failed asylum seekers, the authorities have resorted in some instances to incarcerating them alongside convicted felons. While recognizing this as a problem, the Government is reluctant to build a separate facility both for budgetary reasons and out of concern that such a facility would attract asylum seekers. The Government permits independent monitoring of its prisons, including by church, nongovernmental organizations (NGO's), and international groups.
d. Arbitrary Arrest, Detention, or Exile
Under the Constitution, "every person in Botswana" enjoys freedom from arbitrary arrest as well as due process and the presumption of innocence. However, the Government has not extended those rights to those who enter the country illegally. Upon arrest, a suspect must be informed of his or her legal rights, including the right to remain silent, to be allowed to contact a person of choice, and generally to be charged before a magistrate within 48 hours. A magistrate may detain a suspect 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, however, make it difficult for many detainees to obtain legal assistance, and authorities do not always strictly follow procedures. The Government does not provide counsel for the indigent, and there is no public defender service. Two 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 do not apply to illegal immigrants, although the constitutionality of denying due process to illegal immigrants has not been tested in court. While the Government does not use exile for political purposes, it has expelled foreigners on political grounds, declaring foreigners who criticize government policy prohibited immigrants--a ruling from the office of the President for which there is no appeal process.
e. Denial of Fair Public Trial
Botswana has two court systems, the civil courts and the customary (traditional) courts. While the Constitution provides for due process, the civil courts, which include magistrates' courts and the Court of Appeal, are not able to provide for timely fair trial in many cases. In 1994 these courts continued to face acute resource shortages and a lack of trained personnel, leading to enormous backlogs, over a year in many capital cases and longer in lesser offenses. Most trials in the regular courts are public, although trials under the National Security Act (NSA) may be held in secret. As a rule, the courts appoint public defenders only for those persons 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 are not informed of their rights in pretrial or trial proceedings. Botswana's civil courts operate with a high degree of independence. They are largely unhampered by corruption and rarely susceptible to political influence. However, judicial authority has been undermined by the Government's continued reluctance to abide by a 1992 decision of the High Court that the Citizenship Act is unconstitutional because it discriminates against women. International human rights monitors criticized the Government for its failure to revise the law and respect the Court's ruling (see Sections 2.d. and 5). The Government has yet to declare publicly how it will implement the High Court's decision. President Masire has made a commitment to address the issue in 1995. During the debate preceding adoption of the 1994 Anticorruption Bill, some human rights organizations expressed concern that, in the case of those accused of misuse of government resources, the bill would weaken the constitutional provision providing for the defendants' presumption of innocence. Most citizens encounter the legal system through the customary courts under the nominal authority of a traditional leader. These courts handle minor offenses involving land, marital, and property disputes. In these courts, the defendant does not have legal counsel, and there are no precise rules of evidence. Tribal judges, appointed by the traditional 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 are respected, their decisions are respected; in communities where the chiefs are not respected, people seek justice from the civil courts. The Government held no 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 the Government respects these rights. While judicial search warrants are normally required, police officers above the rank of sergeant may enter, search, and seize property if they have reasonable grounds to suspect that evidence might be destroyed or that a crime is in progress. Evidence gathered without a search warrant is admissible in court, but judges may and do disqualify such evidence if it can be shown that the police had time to obtain a warrant.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of expression, both individual and corporate, but also permits restrictions on these freedoms "reasonably required in the interests of defense, public safety, public order, public morality, or public health." Botswana has a long tradition of vigorous and candid public discourse, and the Government has not used this constitutional provision to place unreasonable restrictions on speech or press. However, 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 the official Botswana Press Agency (BOPA). Opposition leaders have access to the radio, but they complain--with some justification--that their broadcast time is severely limited. The Government also subsidizes a free daily newspaper which depends heavily on BOPA for its material. 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. There are no privately owned radio or television stations, but there is a semilegal television station broadcasting mostly pirated programs 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. The Attorney General did not take any action during 1994 in the case involving two journalists accused of violating the NSA in 1993, in part because one of the reporters was abroad on a scholarship. The Government also has leverage over the independent press through advertising placed by state-owned enterprises. Within the Government, there has been some discussion of withdrawing such advertising from the independent media, but no such action had been taken by year's end. There are no limits placed on academic freedom.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of association, and the Government respects this right in practice. Police authorization is needed to hold public demonstrations, but the authorities withhold permission only in limited cases and then exclusively for the sake of public safety. Although associations must officially register, the Government has not used the registration process to delay, harass, or otherwise impede group formation. There are a multiplicity of political parties, labor unions, and civic associations
c. Freedom of Religion
The Constitution provides for this freedom, and people worship freely 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, although once voluntarily relinquished, it can only be regained through naturalization. Citizenship provisions of the Nationality Law discriminate against women and have been severely criticized by human rights groups, as well as being the object of legal action (see Section 5). The Government does not repatriate refugees against their will, nor will it forcibly expel those who have applied for, but failed to gain, refugee status. Those granted refugee or asylum status are treated well, but some failed asylum seekers have been detained without charge for up to 2 years in the same facilities and cells as convicted felons. The Government cooperates with the United Nations High Commissioner for Refugees (UNHCR) and other international refugee organizations, but it generally applies stricter criteria to asylum seekers than does the UNHCR.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens have the right to change their government. In practice, one party--the BDP--has dominated the lower chamber of Parliament, the National Assembly, since independence, although its representation in the Assembly was reduced in the October 15 multiparty general elections, in which it won 27 of the 40 elected seats. While eight parties contested the election, only the BNF, with 13 seats, joined the BDP in Parliament. There are also four appointed seats. The BNF's recent performance at the polls (increasing its parliamentary presence from 3 to 13 seats) reflected a strong following in urban areas. Parliament elects the President. Citizens 21 years of age and older may vote, using a secret ballot. The House of Chiefs, a ceremonial upper chamber of Parliament with limited advisory powers, is constitutionally restricted to the eight "principal tribes" of the Tswana nation. Consequently, other groups of Botswana citizens, e.g., the Basarwa (widely known as "bushmen"), Herero, Kalanga, Humbukush, Baloi or Lozi, are not represented in the House of Chiefs. Given the limited authority of the House of Chiefs, the impact of this discrimination is largely symbolic, but it is viewed as important in principle by a number of non-Batswana. Members of the National Assembly are required to be able to speak English, and one prospective candidate for a seat representing a Basarwa constituency was not nominated by his party for this reason. This restriction has never been challenged in court. Women are also underrepresented in the political process. Although women constitute just over 50 percent of the population, only 3 of 44 National Assembly seats are occupied by women, and only 2 women are in the Cabinet.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The Government does not prevent local and international organizations from investigating human rights abuses in Botswana, nor does it make any attempt to suppress any critical publications. Local human rights groups operate openly and independently. They freely use the independent media to publicize their findings, which are often critical of the Government. Organizations such as Human Rights Watch/Africa and Amnesty International have criticized certain practices in Botswana. The Government often disputes the conclusions of NGO's but does not attempt to prevent them from being debated. Officers from international human rights groups enter and depart Botswana freely.
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.
Women in Botswana do not have the same civil rights as men. A prominent illustration of this is the highly publicized Unity Dow lawsuit challenging Botswana's citizenship laws. Attorney Unity Dow, a female citizen of Botswana married to an expatriate, filed a successful suit challenging the constitutionality of Botswana's Nationality Law. Under that Law, a Motswana woman married to a non-Motswana could not transmit Botswana citizenship to her child whereas a Motswana man in the same situation could do so. Although the High Court declared the law unconstitutional, the Government has since failed to take action to pass a new law which would treat male and female citizen parents equally with respect to transmission of citizenship to their children. In an effort to force government action, Unity Dow has since applied for a passport for her child, but the authorities had declined to act on that application by year's end. A number of other laws, many of which are attributed to traditional practices, restrict civil and economic opportunities for women. Women married in "common property" are held to be legal minors, requiring their husbands' 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. 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. Violence against women, primarily beatings, remains a serious problem in Botswana. Under customary law and in common rural practice, men have the right to "chastise" their wives. Statistics are believed to underreport the true level of abuse against women. Police are rarely called to intervene in cases of domestic violence, and there were no cases in which a wife filed criminal charges against an abusive husband in 1994. Spouse abuse does not receive widespread media attention. A number of women's organizations have emerged to promote the status of women. The groups vary considerably in their membership, philosophy, and tactics. The Government has been slow to respond concretely to issues raised by these groups.
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.
The Tswana majority, of which the Constitution recognizes eight "principal tribes," has a tradition of peacefully coexisting with "minor" tribes, chief among which are the Kalanga who represent some 25 percent of the population. Each of the eight principal tribes is represented in the advisory House of Chiefs, while 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.
People with Disabilities
The Government does not require accessibility to public buildings and conveyances for people with disabilities, and the NGO community has only recently begun to press for more government attention to the needs of the disabled. The Government does not discriminate on the basis of physical or mental handicap, although employment opportunities for the disabled remain limited.
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 unions are free to form other confederations. 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. Employees of two banks, one private and one state owned, staged strikes in December. At year's end, both actions were unresolved. 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, and dismissed workers may appeal to labor officers or civil courts. However, labor officers 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 practiced.
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 may be employed in any industry. Only persons over 16 may be hired to perform night work, and no person under 16 is allowed to assume hazardous labor, including in mining. District and municipal councils have child welfare divisions that 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 nominally responsible for enforcing the minimum wage, but there were no known cases in which the Ministry took actions against an employer paying less in 1994. 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. Illegal immigrants, primarily Zimbabweans and Zambians, are easily exploited as they would be subject to arbitrary and immediate 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.