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Botswana: Domestic violence, including legislation, state protection, recourse and services available to victims (2007 - February 2011)

Publisher Canada: Immigration and Refugee Board of Canada
Publication Date 29 March 2011
Citation / Document Symbol BWA103714.E
Cite as Canada: Immigration and Refugee Board of Canada, Botswana: Domestic violence, including legislation, state protection, recourse and services available to victims (2007 - February 2011), 29 March 2011, BWA103714.E , available at: http://www.refworld.org/docid/4dbe8bc52.html [accessed 23 July 2014]
DisclaimerThis 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.

The Botswana satellite office for Gender Links -- a South African non-governmental organization (NGO) that promotes gender equality according to the provisions of the Southern African Development Community (SADC) Protocol on Gender and Development (Gender Links n.d.a) -- published an SADC, Gender Protocol barometer study on Botswana in 2010 (2010). The SADC Protocol on Gender and Development contains measures that help advance gender equality and ensures that SADC member states are held accountable (Gender Lin?s n.d.b). The report indicates that, in 2007, 1,596 cases of rape and attempted rape were reported in Botswana and that 101 women were murdered in domestic violence-related cases (Gender Links Botswana 2010, 43). According to the report, the majority of violence committed against women in Botswana is domestic (ibid.). The report also indicates that the Botswana Police Service found, through its own research, that "most women … find it difficult to report domestic violence" because in some instances, the perpetrator had been in the same room as the victim at the time of reporting; police officers have "negative attitudes" towards the person reporting; and, there are not enough female officers on staff to attend to these types of calls (ibid., 44).

Legislation

Botswana enacted the Domestic Violence Act (No. 10 of 2008) to provide protection to survivors of domestic violence (Botswana 2008). The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant" and lists the types of abuse, such as physical, sexual or emotional, that this includes (ibid.). The Act also deals with the jurisdiction of the courts; describes how an "applicant" (i.e., "any person who alleges to have been subjected to an act of domestic violence") can lodge an application for an order by the court; explains how documents are served to the "respondent" (i.e., "any person who is or has been in a domestic relationship with the applicant and against whom the applicant seeks to obtain or has obtained an order under this Act"); and identifies the nature of proceedings in a domestic violence case (ibid.).

The United States (US) State Department's Country Reports on Human Rights Practices for 2009 indicates that although "[t]he law prohibits rape, [it] does not recognize spousal rape as a crime" (11 Mar. 2010, Sec. 6). Similarly, in an oral statement to the Committee on the Elimination of Discrimination Against Women (CEDAW) in 2010, representatives of the Botswana Council of Non-Governmental Organizations (BOCONGO), an umbrella organization comprising 120 NGOs, said that the Domestic Violence Act does not consider "marital rape" a crime and that it "therefore fails to protect women" (BOCONGO 2010, 1, 3).

An article by academics Patrice Cailleba and Rekha A. Kumar in the African Journal of Political Science and International Relations explains that the dual legal system operating in Botswana is

an indigenously-based customary legal system, and received law, that is, the Constitution, based on a system inherited from the former colonial state. (Cailleba and Kumar Dec. 2010, 330)

The authors explain that the government's capacity to promote women's basic rights depends on whether customary law takes "precedence" over constitutional law (ibid.). Similarly, BOCONGO notes in their statement to CEDAW that the Abolition of the Marital Power Act (No. 34 of 2004) -- an Act that "provides for equal powers in community of property for spouses" (University of Pretoria n.d.) -- does not apply to customary and religious marriages; because it does not, and because a "sizeable number" of people in Botswana choose to follow customary law, the Act "tolerates" violence against women as a means of enforcing the unequal power relations that exist between men and women (BOCONGO 2010, 3). US Country Reports also indicates that under customary law, husbands can "treat their wives in the same manner as minor children" and are allowed to "discipline" their wives through corporal punishment, an act that is "very common" in rural areas (11 Mar. 2010, Sec. 6).

Both Cailleba and Kumar, in their African Journal of Political Science and International Relations article, and Country Reports indicate that the Domestic Violence Act does not "specifically prohibit" domestic violence (Cailleba and Kumar Dec. 2010, 331; US 11 Mar. 2010, Sec. 6). As a result, the issue continues to be a "serious" problem (ibid.).

State protection

The Gender Links Botswana report cites a Botswana Police Service report from 2008 wherein it states that, even though the Domestic Violence Act was passed in 2008, "domestic violence is still not considered to be a serious crime and [that] the response of the legal system to GBV [gender-based violence] remains inadequate" (2010, 44). The police report identifies "passion killing," "rape," "defilement," "indecent assault on females," "defilement of imbeciles" and "incest on females" as cases of what is meant by gender-based violence (ibid.). The Botswana Police Service also reportedly indicates that police officers require more "specific training" when handling gender-based violence cases (ibid.). US Country Reports indicates that because domestic violence is not a crime under the penal code, police do not keep statistical records of domestic violence (11 Mar. 2010, Sec. 6). However, it also mentions that the number of domestic violence cases being reported has increased because of greater public awareness (US 11 Mar. 2010, Sec. 6).

BOCONGO also indicates that the effort to address violence against women has been "largely ineffective" partly because of the "[p]oor dissemination of information on laws and programs meant to benefit victims of gender violence" (2010, 3). The council also identified a lack of financial resources as a reason why the Domestic Violence Act is ineffective since women, especially poor women who constitute the majority in Botswana, experience limited access to legal aid (BOCONGO 2010). The Botswana government, reporting to CEDAW on its implementation of the convention in 2010, also indicates that the cost of legal proceedings was the "main" obstacle for women wanting to access justice and that although there is no legal aid system in place, its planning document for 2016 recognizes the need to put one in place (Botswana 22 Apr. 2010, 6)

In an article in Mmegi Online, the web edition of a daily newspaper in Botswana (n.d.), the government is cited as admitting that its decision to place the Women's Affairs Department in the Ministry of Labour and Home Affairs creates a problem of authority in coordinating implementation of the CEDAW convention (4 Feb. 2010). Somewhat similarly, the Botswana government indicates in its CEDAW submission that the Women's Affairs Department lacks adequate resources (Botswana 22 Apr. 2010, 7).

According to the Gaborone-based Sunday Standard, in 2009, 15 magistrates in the Botswana justice system attended an orientation workshop on the "essentials of law applicable in cases of Domestic Violence in Botswana" (3 Apr. 2009). A media and advocacy officer at the Botswana Network on Ethics, Law, and HIV/AIDS is quoted as saying that the goal of the workshop is not only to increase awareness of the Domestic Violence Act, but also to further acquaint the magistrates with the skills needed to interpret the laws related to domestic violence (Sunday Standard 3 Apr. 2009).

Support services

According to the Gender Links Botswana report, the following NGOs provide services to "survivors of gender-based violence": Kagisano Women's Shelter, Botshabelo Rape Crisis Centre, Women Against Rape, Emang Basadi, Life Line, Child Line, Young Women's Christian Association (YWCA), Women and Law in South Africa and Ditshwanelo (2009). However, these services are only found in urban areas and are less accessible for victims in rural and remote areas of Botswana (Gender Links Botswana 2009). The Africa for Women's Rights campaign, which was initiated and is coordinated by six regional and international human and women's rights organizations (23 Jan. 2009), indicates that Botswana's Domestic Violence Act does not call for the creation of shelters for victims; it adds that there is only one shelter in Botswana and it is provided by an NGO (5 Mar. 2010).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Africa for Women's Rights. 5 March 2010. "Dossier of Claims: Botswana." [Accessed 4 Mar. 2011]

_____. 23 January 2009. " FAQ." [Accessed 11 Mar. 2011]

Botswana. 22 April 2010. Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination Against Women. Combined Initial, Second and Third Periodic Reports of States Parties: Botswana. (CEDAW.C/SR.920) (Official Document System of the United Nations) [Accessed 24 Mar. 2011]

_____. 2008. Domestic Violence Act (No. 10 of 2008). (UN Secretary-General's Database on Violence Against Women) [Accessed 2 Mar. 2011]

Botswana Council of Non-governmental Organizations (BOCONGO). 2010. "Oral Statement to the CEDAW Committee - Botswana." (International Women's Rights Action Watch Asia Pacific) [Accessed 7 Mar. 2011]

Cailleba, Patrice, and Rekha A. Kumar. December 2010. "When Customary Laws Face Civil Society Organisations: Gender Issues in Botswana." African Journal of Political Science and International Relations. Vol? 4, No. 9. [Accessed 3 Mar. 2011]

Gender Links Botswana. 2010. Southern Africa Gender Protocol Alliance. SADC Gender Protocol Barometer Baseline Study: Botswana. [Accessed 24 Mar. 2011]

Gender Links. N.d.a. "About us". [Accessed 24 Mar. 2011]

_____. N.d.b. "Policy - The SADC Protocol". [Accessed 25 Mar. 2011]

Mmegi Online [Gaborone]. 4 February 2010. Chandapiwa Baputaki. "BOCONGO Urge Government to Give Effect to CEDAW." < [Accessed 11 Mar. 2011]

_____. N.d. "About Mmegi." < [Accessed 23 Mar. 2011]

Sunday Standard [Gaborone]. 3 April 2009. Gwenius Toka. "Botswana Magistrates to Be Lectured on the Fundamentals of Domestic Violence." < [Accessed 3 Mar. 2011]

United States (US). 11 March 2010. Department of State. "Botswana." Country Reports on Human Rights Practices for 2009. [Accessed 3 Mar. 2011]

University of Pretoria. N.d. Centre for Human Rights. Supporting the Response to the HIV Epidemic in Eastern and Southern Africa Through the International Human Rights Framework. "Botswana: Abolition of Marital Power Act 34 of 2004." [Accessed 11 Mar. 2011]

Additional Sources Consulted

Oral sources: A professor at Groupe Esc Pau was unable to provide information for this Response. Attempts to contact a professor of sociology at the University of Botswana; a representative of Kagisano Society Women's Shelter in Gaborone, Botswana; the program coordinator at the Botswana satellite office of Gender Links; a representative of Ditshwanelo in Gaborone; a social worker at Tutume Primary Hospital; the Director of Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and a representative of LifeLine Botswana were unsuccessful.

Internet sites, including: African Development Bank Group (ADB); African News Online; Afrik.com; AllAfrica; Amnesty International; Botswana Guardian; Ditshwanelo; Factiva; Freedom House; Gender Links (GL); Government of Botswana; NGO News Africa; OneWorld.net; SourceWatch; Stop Violence Against Women (STOPVAW); United Nations (UN) - Integrated Regional Information Networks (IRIN), Refworld, ReliefWeb, UN Women, United Nations Children's Fund (UNICEF); The Voice [Gaborone]; World Bank; World Organisation Against Torture (OMCT).

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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