United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1998 - Botswana, 26 February 1999, available at: http://www.refworld.org/docid/3ae6aa5d28.html [accessed 22 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 longstanding, multiparty democracy. Constitutional power is shared between the President and the 44-member, popularly elected Lower House of Parliament. In March former President Sir Ketumile Masire retired and was succeeded by Vice President Festus Mogae, in accordance with constitutional procedures. The ruling Botswana Democratic Party (BDP) continued to dominate the National Assembly, holding 31 of 44 seats. The opposition Botswana Congress Party (BCP), a group that broke away from the Botswana National Front, holds 11 seats, while the BNF holds the remaining 2 seats. 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. Despite effective economic and fiscal policies, Botswana suffered economic losses due to the Asian financial crisis in 1997-98, which led to a significant reduction in the world demand for diamonds, the source of over two-thirds of the country's export income. Linkage of the national currency, the pula, to the South African rand, caused a 30 percent devaluation of the pula. Consequently, the per capita gross domestic product fell to $2,500 in 1998 from $2,800 in 1997. 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, although there were some continuing problems. There were credible reports that the police sometimes mistreated criminal suspects in order to obtain evidence or coerce confessions. The authorities have taken action in some cases against persons responsible for abuses. In many instances, the judicial system did not provide timely fair trials due to a serious backlog of cases. Opposition leaders have claimed that the Government limits their ability to broadcast freely on the radio. The Government's response has been that prominent coverage of the activities of important officials is more newsworthy. Women continued to face legal and societal discrimination, and violence against women is a serious problem. The Government and nongovernmental organizations (NGO's) continued to work to formulate a long-term plan of action to implement a national policy on women designed to address these problems. Some citizens, 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. Trade unions continued to face some legal restrictions, and the Government did not always ensure that labor laws were observed in practice. The Government's 1995 plan to construct a separate detention facility for asylum seekers whose refugee claims have been rejected continued to be delayed by a dispute between two government ministries over development of the property. The Government refers to the facility as the Center for Illegal Immigrants. Until the center is completed, refused asylum seekers continue to be detained in prison. Refugees and asylum seekers refused under Botswana's "first country of asylum" policy are housed at Dukwe Refugee Camp.
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. Police charged six members of the BDF military intelligence unit implicated in the 1996 suffocation death of a burglary suspect in police custody. Their trial, scheduled to begin in September, was delayed when their attorney was appointed to become an acting circuit court judge. In September troops from the BDF, as part of a Southern African Development Community (SADC) military task force, intervened in Lesotho to quell an army mutiny and opposition protests. Over 40 opposition-allied civilians died as a result of fighting with the SADC troops.
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, and the authorities generally respect this prohibition in practice, although instances of abuse occur. In some cases, the authorities have taken disciplinary or judicial action against persons responsible for abuses. 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 general, however, beatings and other forms of extreme physical abuse remained rare. Customary courts continued to impose corporal punishment sentences in the form of lashings on the buttocks. There were periodic press reports of floggings, particularly of young offenders in villages, imposed by customary courts for vandalism, theft, hooliganism, and other infractions. The Government has refused to adopt a motion submitted by the House of Chiefs to reinstate flogging across the back rather than the buttocks. The House of Chiefs is an advisory body only. Prison conditions meet minimum international standards, although overcrowding is a problem. Women in custody are placed in the charge of female officers. Women prisoners are treated the same as men. Women's facilities are separate but mostly colocated with men. There are no reports of sexual abuse of women prisoners. The Government permits prison visits by human rights monitors after a detailed inquiry procedure.
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 provisions in practice. Suspects must be informed of their legal rights upon arrest, 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, but in practice most are unable to afford legal counsel. However, poor police training and poor communications in rural villages make it difficult for detainees to obtain legal assistance, and authorities do not always follow judicial safeguards. The Government does not provide counsel for the indigent, except in capital cases. One NGO, the Botswana Center for Human Rights, provides free legal services, but its capacity is limited. Another NGO, the University of Botswana Legal Assistance Center, provides free legal services in civil, but not criminal, matters. Constitutional protections are not applied to illegal immigrants, although the constitutionality of denying them due process has not been tested in court. The Government neither forcibly repatriates nor deports failed asylum seekers, but it detains and incarcerates them with convicted felons (see Section 2.d.). The Government does not use forced exile.
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. However, the civil courts remained unable to provide for timely, fair trials in many cases due to severe staffing shortages and a backlog of pending cases. From September through the first week in November, the Government suspended all civil cases and ordered all circuit court judges to try criminal cases only. Of the 80 backlogged cases, 48 were set for trial and 39 completed as of year's end. Most trials in the regular courts are public, although trials under the National Security Act (NSA) may be held in secret. Those charged with noncapital crimes are 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. 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 in 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 the Government generally respects 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 generally respects this right in practice. Botswana has a long tradition of vigorous, candid, and unimpeded public discourse. However, opposition leaders have claimed that the Government limits their ability to broadcast freely on the radio. The Government contends that prominent coverage of senior officials is more newsworthy. The independent press is small, but lively and is frequently critical of the Government and the President. It reports without fear of closure or censorship. The Government adopted a new broadcast law in July in consultation with media representatives. This law replaced draft legislation offered in 1997, which included provisions for a government-dominated press council, restrictive domestic ownership requirements, and mandatory government accreditation of journalists. The new law creates a national broadcast board and provides for issuance of broadcast licenses and copyright protection of broadcast material. None of the controversial provisions of the 1997 draft legislation were retained. The Government 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 broadcast time is limited significantly, and that Radio Botswana's editing of their press releases constitutes a form of censorship. The only television station is privately owned and broadcasts to viewers in the capital city. Independent radio and television from neighboring South Africa are received easily. On occasion the Government has taken steps, under loosely defined provisions of the NSA, to limit publication of national security information. 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 formal barriers to domestic and international travel or migration. Some human rights organizations claimed that the Government has pressured several Basarwa (Bushmen) communities within the Central Kalahari Game Reserve (CKGR) into relocating to partially built settlements outside of the Reserve. Government officials maintained that the "voluntary" resettlement was necessary in order to provide the Basarwa with better public services and to avoid conflicts between wildlife and humans within the CKGR. When the Basarwa arrived at the new settlements, services and facilities were substandard or nonexistent. Although conditions later improved, they remain very basic. The Government permits relocated Basarwa to return to the CKGR, but does not provide services within the reserve. The Government cooperates with the office of the United Nations High Commissioner for Refugees (UNHCR) and other humanitarian organizations in assisting refugees. Botswana has maintained a policy of considering resettlement requests only from refugees from bordering countries. However, the Government has permitted failed asylum seekers to remain in the country but they must stay either at the Dukwe Refugee Camp or in jail. There were no confirmed reports of the forced return of persons to a country where they feared persecution. Refugees and asylum seekers refused under Botswana's "first country of asylum" policy are housed at Dukwe Refugee Camp until they are resettled or repatriated. Botswana received more than 1,300 Namibian refugees from late October through mid-December. Many were armed and linked to the Democratic Turnhalle Alliance (DTA), a rebel movement based in the Caprivi Strip of Namibia. Male refugees linked to the DTA requested asylum based on their claim that they were being forced into the Namibian army to fight in the Democratic Republic of the Congo. Although the UNHCR screened these persons, at year's end the Government had not decided whether to deport them, grant asylum, or try them for importation of illegal arms.
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 (18 years of age) suffrage. The President is elected by Parliament and is limited to two 5-year terms in office. The BDP continued to dominate Parliament following the October 1994 elections, ensuring the election of its presidential candidate, then incumbent President Sir Ketumile Masire. Masire stepped down in March and was succeeded by Vice President Mogae, in accordance with the Constitution. The BNF was the only opposition party to win seats in the last elections. However, a split within the party during the year led to the creation of the BCP, which holds 11 of the opposition seats in Parliament, while the BNF retained only 2 seats. A measure to force MPs who change parties to stand for reelection in a by-election was stalled in Parliament at year's end. The House of Chiefs, an advisory upper chamber of Parliament with limited powers, is restricted constitutionally to the eight "principal tribes" of the Tswana nation. Consequently, other groups, for example, 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 citizens is largely symbolic, but some non-Setswana speakers view it as important in principle. Members of the National Assembly are required to speak English. 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 female ministers and 1 deputy minister 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 forbids discrimination on the basis of ethnicity, race, nationality, creed, sex, or social status. These provisions are implemented in practice by government authorities. Women Violence against women remains a serious problem. Domestic abuse is one area of concern. Under customary law and in common rural practice, men have the right to "chastise" their wives. Police rarely are called to intervene in cases of domestic violence. Reports of sexual exploitation, abuse, and criminal sexual assault are increasing, and public awareness of the problem generally is growing. The national police force has begun training in handling domestic violence problems for police officers to make them more responsive in such cases. Rape is another grave national problem, and the Government acknowledged in April that, given the high incidence of HIV/AIDS, sexual assault has become an even more serious offense. In response Parliament on April 16 passed legislation effective April 30, which increased penalties for rape, incest, and other forms of sexual assault by imposing minimum sentencing requirements where none existed previously. The minimum sentence for rape is now 10 years, with the minimum increasing to 15 years with corporal punishment if the offender is HIV positive and to 20 years with corporal punishment if the offender knew of his HIV status. The maximum sentence remains life imprisonment. However, although the Government has become far tougher in dealing with criminal sexual assault, societal attitudes toward other forms of domestic violence remain lax. There were 1,183 rapes reported in 1997 with 239 individuals convicted. One of two pending cases of domestic homicide went on trial in November. The defendant, accused of murdering her husband, claims to be the victim of battered woman syndrome and not criminally liable for her actions. The case was pending at year's end. Sexual exploitation and harassment continue to be problems as well, with men in positions of authority pressuring women to provide sexual favors. Greater public awareness and improved legal protection have led more victims of domestic violence and sexual assault to report incidents to the authorities. Women legally enjoy the same civil rights as men; however, in practice discrimination persists. A number of laws, many of which are attributed to traditional practices, restrict civil and economic opportunities for women. A woman married under traditional law or 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. Under a law adopted by Parliament in 1996, women married under an intermediate system referred to as in "community of property? are permitted to own immovable property in their own names; however, their husbands still retain considerable control over jointly-held assets of the marriage. In community of property, the couple jointly owns property, but the right to manage it is reserved almost exclusively to the husband. The law was a step toward equalizing a husband's and a wife's legal control over property held in community of property. Women have, and increasingly are 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 with the consent of the first wife, but it rarely is practiced. Consultants have been reviewing existing laws to identify provisions that may discriminate against women and plan to submit a report to the Ministry of Labor and Home Affairs in 1999. 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. The Government and interested NGO's meet regularly to implement the long-term plan of action described in the National Policy on Women adopted in 1996. The plan identifies 6 critical areas of concern, prioritized as follows: (1) women and poverty, (2) women, and powersharing and decisionmaking, (3) education and training of women, (4) women and health, (5) the girl child, and (6) violence against women. The Women's Affairs Department of the Ministry of Labor and Home Affairs, in conjunction with the United Nations Development Program, is implementing a "market plan" to ensure that the gender program and overall policy on women are incorporated into policymaking, budgeting, and planning decisions. A number of women's organizations has 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 state that they are encouraged by the direction of change and by the increasingly collaborative relationship with government authorities. Major women's NGO's include the Emang Basadi Women's Association, which promotes the social, economic and legal status of women; the Metlhaetsile Women's Information Centre, which provides legal assistance to poor women; and the Botswana Council of Women. Children The Government provides 7 years of primary education for children, although it is not compulsory. The national literacy rate is 69 percent: 70 percent for females and 67 percent for males. However, in some cases, girls are denied schooling because of religious or customary beliefs. For the past 2 years, the Government has allocated the largest portion of its recurrent budget to the Ministry of Education, in large part for the construction of primary and secondary schools so that children have ready access to education. 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. The Government launched a 10-year program of action for children in 1997, incorporating the seven major global goals identified at the 1990 U.N. World Summit for Children. In 1996 the Ministry of Labor and Home Affairs transferred responsibility for children to the Social Welfare Department in the Ministry of Local Government, Lands and Housing. Laws pertaining to children are under review to align them with the UN Convention on the Rights of the Child. The Adoption Act also is being reviewed to ensure that adopted children are provided for and not exploited as cheap labor. There is no societal pattern of abuse against children, although incest and other forms of child abuse have received increased attention from the media and from local human rights groups. In August a peaceful protest at a senior secondary school in northeastern Botswana turned violent when 500 students rioted over allegations of sexual misconduct by male teachers with female students. In the aftermath, 10 students were expelled and 12 others were suspended. Separate committees were appointed to investigate both the riots and the students' claims of teachers' sexual misconduct. However, in the interim, 60 students were ordered to pay over $7,000 in fines or face prosecution for "malicious damage to government property." The parents of the expelled and suspended students vowed not to pay the fines and appeared prepared to fight the school administration in court, shifting the focus of public attention to the students' conduct from that of the teachers. The problem of sexual harassment among teachers is not limited to northeastern Botswana, but is reportedly a national concern. Reports of rape and sexual assault of young women, particularly those doing their national service in remote regions of the nation are common, and cases of incest and "defilement" of young girls appear with greater frequency in the news. 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 only recently has begun to address the needs of the disabled. In 1997 Parliament adopted a national policy that provides for integrating the needs of disabled persons into all aspects of government policymaking. The Government funded NGO's that provide rehabilitation services and supported small-scale work projects by disabled workers. National/Racial/Ethnic Minorities 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; they have lost access to their traditional land and are vulnerable to exploitation. 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. 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 mineral extraction 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 that the union represents. This rule severely limits union leaders' professionalism and effectiveness, and has been criticized by the International Confederation of Free Trade Unions (ICFTU). The law also 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 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. 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, located in the town of Selebi-Phikwe, and it is subject to the same labor laws as the rest of the country.
c. Prohibition of Forced or Compulsory Labor
The constitutional provision prohibiting forced or bonded labor applies to all citizens, although its application to children is not specified. There were no reports of forced or bonded labor.
d. Status of Child Labor Practices and Minimum Age for Employment of Children
Although education is not compulsory, the Government provides 7 years of free primary education to every child, and most children take advantage of this opportunity. Only an immediate family member may employ a child age 13 or younger, and no juvenile under age 15 may be employed in any industry. Only persons over age 16 may be hired to perform night work, and no person under age 16 is allowed to perform hazardous labor, including mining. District and municipal councils have child welfare divisions, which are responsible for enforcing child labor laws. The constitutional provision prohibiting forced or bonded labor applies to all citizens, although its application to children is not specified (see Section 6.c.). Because research on the issue of child labor is limited, it is difficult to state whether child labor laws are enforced effectively. However, there is general agreement among the Labor Commissioner, officials of the Ministry of Local Government, Lands, and Housing, and UNICEF that the child labor problem is limited to young children in remote areas who work as cattle tenders, maids, or babysitters.
e. Acceptable Conditions of Work
The minimum daily wage for full time labor is $3.00 (14 pula), which is less than 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 referred trade disputes to the Industrial Court during the year. 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 $53 (250 pula) for domestics, but this is not mandatory. Illegal immigrants, primarily Zambians and Zimbabweans, are exploited easily, as they would be subject to deportation if they filed grievances against their employers. The 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. However, the Government's institutional ability to enforce its workplace safety legislation remains limited by inadequate staffing and unclear jurisdictions between different ministries. Nevertheless, employers generally provide for worker safety, with the occasionally notable exception of the construction industry.