U.S. Department of State Country Report on Human Rights Practices 1997 - Botswana

Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1998.

BOTSWANA

Botswana is a long-standing, 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. Healthy diamond revenues and effective economic and fiscal policies resulted in improved growth, with the economy growing at a robust annual rate of approximately 7 percent following a downturn from 1991 to 1993. Per capita gross domestic product was approximately $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. Women continued to face legal and societal discrimination, and violence against women is a continuing problem. The Government met with nongovernmental organizations (NGO?s) to formulate a long-term plan of action to implement its national policy on women, which is designed to address these problems. 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. Trade unions continued to face some legal restrictions, and the Government did not always ensure that labor laws were observed in practice. The Government continued to address human rights problems. There were instances of abuse by police, including intimidation of suspects to obtain evidence or elicit confessions. Parliament ratified nine international labor conventions and adopted national policies on children and on care of the disabled. However, the Government's 1995 plan to construct a separate detention facility for asylum seekers whose refugee claims have been rejected continued to be delayed pending resolution of a dispute between two government ministries over development of the property. The facility is referred to by the Government 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 continue to investigate the circumstances surrounding the 1996 suffocation death of a burglary suspect in which six members of the BDF military Intelligence unit were implicated. Due to insufficient evidence, no charges have as yet been filed.

b. Disappearance

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 general, however, beatings and other forms of extreme physical abuse remained rare. Student riots in February 1995 over police handling of a ritual murder case resulted in some injuries. The Attorney General?s office pursued charges against some of the rioters, charging them with unlawful rioting and assault. However, they were acquitted in 1997. Customary courts continued to impose corporeal 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. The Government permits 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 guarantees 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. 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. Two nongovernmental organizations (NGO's)--the University of Botswana Legal Assistance Center and the Botswana Center for Human Rights--provide free 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. The Government neither forcibly repatriates nor deports failed asylum seekers, but it detains and incarcerates them alongside convicted felons (see Section 2.d.). 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 a 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. 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 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 generally 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 or censorship. Concern was expressed, however, over proposed legislation to regulate print and broadcast media that would have vested government officials with considerably expanded power over the press. Local and regional media organizations also objected to the 80 percent citizen ownership requirement contained in the proposal. Government officials agreed to review the draft bill in consultation with media representatives before submitting it to Parliament. 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 air time is significantly limited. The only television station is privately owned and broadcasts 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. 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 pressured several Basarwa (Bushmen) communities within the central Kalahari Game Reserve (CKGR) into relocating to partially built new 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. It is not clear whether resettled Basarwa would be permitted to return to their former villages inside the CKGR should they choose to do so. The Government cooperates with the UNHCR and other humanitarian organizations in assisting refugees. Botswana has maintained a policy of considering resettlement requests only from refugees from bordering countries. The Government has, however, permitted failed asylum seekers to remain in the country either at the Dukwe Refugee Camp or in jail. There were no confirmed reports of 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.

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 of age) 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. Following parliamentary approval, the public voted in a referendum held in October to lower the voting age to 18 and permit voting by absentee ballots. Parliament also approved the constitutional clarification limiting presidential terms to two 5-year terms. A referendum was not required to enact this procedural provision. 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 female ministers 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.

Women

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. The Attorney General's office attributed an increase in the number of reported domestic violence cases, including rape, to greater public awareness and improved legal protection for victims. Under a law adopted by Parliament in all rape cases are tried in private. Two domestic violence homicide cases are awaiting trial before the High Court. Women in Botswana do not have the same civil rights as men. However, the Government and relevant NGO's met to formulate a long-term plan of action for implementing the National Policy on Women adopted in July 1996. The plan identifies six 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 cosponsored a workshop on a national gender program to promote a comprehensive and integrated approach to implementing the goals of the national policy on women. Booklets are being printed for distribution to the public. The Government is also working with the United Nations Development Program to develop a marketing plan to ensure that the gender program and overall policy on women are incorporated into policymaking and budgeting and planning decisions. The plan also aims to develop capacity within the Government and NGO?s to implement the program and overall policy. In April female political leaders in conjunction with a local NGO launched the Botswana Caucus for Women Councillors and Parliamentarians to work for equal representation of men and women in local government and Parliament, both as elected members and as participating citizens. 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. Under a law adopted by Parliament, women married in œcommunity of property? are now permitted to own immovable property in their own name; however, their husbands still retain considerable control over jointly-held assets of the marriage. In community of property, property is jointly owned by the couple, but the right to manage it is almost exclusively reserved to the husband. The law adopted in 1996 was a step toward equalizing a husband?s and a wife?s legal control over property held in community of property. 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. 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 next year. 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 Women's Affairs unit, which is charged with handling women's issues, was upgraded from a division to a department.

Children

The Government provides 7 years of primary education for children although it is not compulsory. 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 societal pattern of abuse against children, although incest and other forms of child abuse have recently received increased attention from the media and from local human rights groups. 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 addition, the Ministry of Labor and Home Affairs is reviewing laws pertaining to children to align them with the U.N. Convention on the Rights of the Child.

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. In February Parliament adopted a national policy that provides for integrating the needs of disabled persons into all aspects of government policy-making. The Government funded NGO?s providing 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 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. The Government ratified nine International Labor Organization (ILO) conventions in 1997, including five characterized by the ILO as core human rights conventions. 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). 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 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. 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 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 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 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 effectively enforced. Child labor is not perceived to be a significant problem. The high level of primary and junior school attendance, coupled with the Government's policy of increasing the number of schools so as to accommodate more pupils for a greater number of years is a good indicator of dedication in principle and practice to deterring child labor.

e. Acceptable Conditions of Work

The minimum daily wage for full time labor is $3.50 (12.7 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 91 trade disputes to the Industrial Court in 1997. 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 $69 (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.