Human Rights Committee

Ninety-second Session

2515^th & 2516^th Meetings (AM & PM)

HUMAN RIGHTS COMMITTEE TAKES UP INITIAL REPORT OF BOTSWANA ON COMPLIANCE

WITH INTERNATIONAL COVENANT ON CIVIL, POLITICAL RIGHTS

 

Experts Praise Country’s Democracy, Political Stability;

Raise Questions on Death Penalty, Customary Law, Corporal Punishment

While noting Botswana’s steady progress on constitutional development, experts on the Human Rights Committee today expressed serious concern about the state of civil and political rights in the Southern African nation, especially regarding retention of the death penalty and corporal punishment, customary laws that ran counter to international norms, and discrimination against non-citizens.

As the Committee began its two-day consideration of Botswana’s initial report on compliance with the International Covenant on Civil and Political Rights, the experts taking part in the discussion praised the country’s considerable success in building a State with economic prosperity, political stability and democracy.  They also noted the Government’s willingness to consider retooling legislation to expand protection of some fundamental rights.

Some experts were concerned, however, that the Covent’s provisions were not better reflected in the Botswana’s laws.  Yuji Iwasawa, expert from Japan, noted certain exceptions in the Constitutional clause against discrimination and wondered whether non-citizens, in particular asylum-seekers, enjoyed the rights under both the Constitution and the Covenant.  With those and other exceptions, including one on members of certain races or communities, a large segment of Botswana’s population seemed to be excluded from State provision’s claiming to prohibit discrimination.

Nigel Rodley, expert from the United Kingdom, was among those requesting more details on the application of the death penalty and on many death sentences had been commuted to prison time.  He remarked that, if abolition of capital punishment had to wait for public opinion, as the report had indicated, “We all know it just won’t happen.”  In fact, public opinion followed abolition.  Africa had moved towards abolition.  “ Botswana seems to be an island of retention in a sea of abolition,” he said, and asked if any studies had been carried out on deterrence regarding the death penalty.

On customary laws, Michael O’Flaherty, expert from Ireland, said that the Committee understood the sensitivities and complexities in this area and was not asking that the Covenant be integrated into customary laws, but that such laws be carried out in a manner that did not violate the human rights of the people of Botswana.  He urged the delegation to seriously consider ways to raise awareness of the Covenant among traditional leaders or tribal councils.

He was also among the experts concerned by Botswana’s ongoing reservations to Covenant articles 7 (torture) and 12 (freedom of movement).  Those reservations were “very unfortunate” and suggested that the State party would take a position contrary to established international norms.  He was certain that Botswana, with all its successes in other areas, did not want to be considered among the group of “pariah States”, especially on the issue of torture.  He hoped that the Government would remove its reservations to those articles as soon as possible.

Responding frankly to the Committee’s concerns, Phandu T.C. Skelemani, the Minister of Justice, Defence and Security of Botswana, said he was truly humbled by the expert’s observations and admitted that, while there could be an inconsistency between running a democracy and being too dogmatic, Botswana was not interested in giving its people anything less than what was ideal.

Addressing the issue of torture, he reiterated that the Covenant did not give a definition of torture.   Botswana law did not criminalize torture as such, but elements such as assault and subjecting people to non-acceptable behaviour were contained in the Penal Code and other legislation.  Ill-treatment was not allowed under the police act and prisoners act.

Turning to Botswana’s reservations to article 7, he said that stance was meant to preserve punishments that had been legitimate before the country’s independence, including corporal punishment.  While some thought corporal punishment was the most barbaric practice in the world, he was not so sure.  He had grown up under that system and believed he was a better person because of the odd caning as a child to show him “the narrow and the straight”.  Some punishments thought to be barbaric should be considered within the context of particular societies.  Of course, he could only speak about his generation.  When younger generations took office, “perhaps they could correct these things”.

He went on to say that Botswana’s Constitution set out relevant rights and derogations.  On non-citizens in the labour market, he said:  “Mine is a political Government:  I can’t be seen to be promoting foreigners, when my own people can do the job.”  So, the Government had put in place the Employment of Non-Citizens Act.  “So strictly speaking, we discriminate.  The people vote for me and any Government that says that it doesn’t care about its ordinary citizens, well, good luck to them,” he continued.  At the same time, he noted that refugees in the country were given permission to leave the camps and encouraged to participate fruitfully in society.  Refugees, “who are among us” were treated differently.

Taking up a series of questions on capital punishment, he stressed that the Government was open to dialogue with Committee members on the matter.  The State did not, under any circumstances, impose the death penalty on persons under the age of 18 or pregnant women.  But, the death penalty would certainly be imposed and carried out in cases of deliberate or premeditated murder, ritual killing, or where the perpetrator had acted to “improve their own standing in some way” by killing or seriously harming another.  “Those, we send to the gallows,” he said.

The Government certainly understood the difference between accidental deaths or crimes committed in anger and those that would, for instance, involve the skinning of a child that was still alive or the removal of that child’s liver and other body parts.  Such persons could not be said to have the right to life, he said, reiterating:  “Those types of persons we send to hang.”  The question of the death penalty was being discussed and debated, but until popular opinion changed on the matter, the law would stand.

The Human Rights Committee will meet again at 10 a.m. Thursday, 20 March, to continue its consideration of Botswana’s initial compliance report.

Background

The Human Rights Committee today took up consideration of Botswana’s initial report on its implementation of the provisions in the International Covenant on Civil and Political Rights (document CCPR/C/BWA/1).

According to the report, Botswana’s Constitution provides for a republican form of government headed by the President, with independent executive, legislative and judiciary organs.  The judiciary consists of the Court of Appeal, High Court and Magistrate Courts.  There is also an Industrial Court for trade disputes.  Other institutions are the Office of the Ombudsman and the Land Tribunal.  A dual legal system consists of customary law and common law (or received law).  Customary law is administered by the kgosi (plural dikgosi, traditional leaders of a tribe).  The effectiveness of the two systems and the rules that guide them, as well as the interplay of the system, both at the cultural and legal levels, have an impact on the way rights are protected and promoted in Botswana.

The report states that Chapter II of the Constitution contains a Bill of Rights that protects the fundamental rights and freedoms of the individual.  International conventions do not have automatic application in national or municipal law, but require legislation.  Circumstances under which the rights guaranteed in the Covenant may be derogated from or limited include the necessity to protect national security, public order, public health or morals, or the rights and freedoms of others.  Any person whose rights are violated can petition the High Court.  The Constitution also prohibits any discrimination whatsoever.  Botswana acceded to the Convention for the Elimination of All Forms of Discrimination against Women and was in the process of ratifying the Optional Protocol.

Under the Penal Code, the death penalty can be given for treason and murder.  Currently there are no initiatives or plans by the Government to totally abolish capital punishment.  The public is in favour of retaining the death penalty.  From September 1966 to date, 40 executions were carried out, the last one in 2003.  Currently, there are three condemned prisoners on death row.

Botswana has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but had entered a reservation on article 1 “to the extent that ‘torture’ means the torture and inhuman or degrading punishment or their treatment prohibited by Section 7 of the Constitution”.  In Botswana, torture per se is not an offence, but the offences are elements leading to it, such as assault, attempted murder and manslaughter.  The courts rely on case law.  The Constitution specifically provides for protection from slavery and forced labour.

According to the report, the Constitution provides that no person shall be deprived of his personal liberty.  He shall not be arrested or detained, save as may be authorized by law.  An arrested person shall be informed as soon as reasonably practicable in a language he understands of the reasons for his arrest, and will be brought, as soon as is reasonably practicable, before a court.  However, in practice there is a serious backlog of cases and a shortage of prosecutors.  Regrettably, application of the act regulating the jurisdiction and procedure of the customary courts is limited by the levels of training of presiding officers.

Although the Constitution provides for freedom of movement, a reservation to the Covenant had been entered regarding article 14 for restrictions reasonably required in certain exceptional instances.  Recently, for instance, some people have been relocated form the Central Kalahari Game Reserve.  The Constitution guarantees all individuals residing in the country the rights recognized in the Covenant, but there are provisions for expulsion of aliens for reasons of conviction, or where the security of the nation is at stake.

Also according to the report, the Constitution further provides for freedom of expression, except for limits in the interest of defence, public safety, public order, public morality or public health.  It also provides for the freedom to associate and assemble.

Consideration of Botswana’s Report

Welcoming Botswana’s delegation, Committee Chairperson RAFAEL RIVAS POSADA, expert from Colombia, expressed some concern at the delay in presentation of the report, which should have been received by the Committee in 2001.  He reminded the delegation, as well, that the Committee would have preferred to have the written responses to its questions in advance and translated into all official languages.  Nevertheless, the answers, even though provided only in English would serve as a good basis for discussion over the next two days.

Botswana’s delegation was headed up by Phandu T.C. Skelemani, Minister of Justice, Defence and Security, and also included:  Samuel O. Outule, Ambassador and Permanent Representative of Botswana to the United Nations in New York; Boometswe Mokgothu, Ambassador and Permanent Representative of Botswana to the United Nations in Geneva; Augustine Makgonatsotlhe, Acting Permanent Secretary in the Office of the President; Dimpho Mogami, Principle State Counsel and Legal Adviser, Minister of Foreign Affairs and International Cooperation; Tapiwa Monghwa, Deputy-permanent Representative, Permanent Mission of Botswana to the United Nations in New York; and Tebatso Baleseng, First Secretary, Permanent Mission of Botswana to the United Nations in New York.

Introducing his country’s initial report, Mr. SKELEMANI, Minister of Justice, Defence and Security of Botswana, said that the Southern African nation was a signatory to key international instruments on human rights, and was a party to 8 of the 13 core United Nations human rights treaties.  It was also a party to two out of three African Union human rights treaties.  He said that Botswana had taken great strides in strengthening and consolidating democracy over four decades of its existence as an independent State.  Its commitment to upholding the basic principles of democracy enshrined in its Constitution, respect for the rule of law and willingness to dialogue “has made our country the envy of many”.

Botswana believed that, with everyone’s help, it could do better.  He said that Botswana’s focus as a nation was in line with the best practices elsewhere in the world.  The country had made significant progress on issues related to gender equality and ensuring that everyone was equal before the law.  It had also scored some successes in crucial areas, such as poverty reduction, which showed a significant drop in the decade 1994 (37 per cent) to 2004 (23 per cent).  That figure was expected to drop another 7 per cent by 2009 and such progress had earned Botswana a respectful place in Africa and the world.

He said that the Government continued to combat the spread of HIV/AIDS and hoped to significantly reduce the number of new infections and deaths.   Botswana had been a consistent leader, on the African continent and throughout the wider world, in the areas of economic freedom, openness, transparency and good governance.  It had also established, in that regard, such institutions as the Directorate on Corruption and Economic Crime, the Office of the Ombudsman and Public Procurement and Asset Disposal Board, to promote good governance and accountability.

Turning to highlight some challenges, he said that, as a young country, Botswana was working hard to deal with various nation-building and development issues.  It had set national goals and objectives and was working on National Development Plan 10, and had no doubt that all the measures put in place would ensure the full enjoyment of the fundamental human rights of all its citizens.  He went on to note that much of the steady growth had been attributable to revenue from the country’s booming mining sector.  Those resources had been targeted towards the development of human capital and infrastructure throughout the country.

Botswana wanted to eradicate illiteracy and improve the social sectors, including providing education and health care for every person in the country, irrespective of tribal or ethnic origin, he continued.  Before addressing the first set of questions put forward by the experts, he highlighted the issue of the death penalty.   Botswana continued to retain that form of punishment and the people of the country had shown a preference for capital punishment when consulted on the matter, he said.  The death penalty was not imposed for every murder, but “only where there is nothing more to be said morally in defence of the accused”, for example, in cases of ritual killings or murders where body parts or organs were removed while the victims was still alive.

Replies to Expert’s Written Questions

Leading off the replies to questions supplied by the Committee, Mr. Skelemani said that when international legal instruments were domesticated, they were then applied in the courts.  While the International Covenant had not yet been domesticated, Botswana believed that its Constitution laid the foundation for its judiciary to “operate in the spirit” of the Covenant.  Moreover, in “grey areas,” Botswana’s laws were interpreted in consonance with the tenets of the Covenant.  He stressed that, while the Government had not set up specific workshops to inform the judicial and other law enforcement officials about the Covenant, he believed that such officials, in their own right, were well aware of the specificities of that important instrument.

Another member of the delegation addressed questions relating to raising the awareness of traditional leaders or tribes about the rights protected under the Covenant, and ensuring that those rights were taken into consideration by customary courts and local police.  He said that, as yet, no such measures had been implemented.  In fact, Botswana was in a bit of a quandary over just how that could be carried out.  Given the fact that customary law was unwritten and varied from tribe to tribe, the Government feared that it might be very traumatic to introduce the tenets of the Covenant, or other human rights instruments.  That said, however, the delegation and the Government were open to dialogue with Committee experts to find a way forward on that important matter.

The delegate went on to say that the Office of the country’s Human Rights Ombudsman had a mandate limited to human rights violations only in the public sector.  At present, there were very few statistics available on the number of human rights cases received or dealt with by that Office.  He added that Botswana was considering recommendations under the Vienna Declaration and the African Charter on Human Rights to establish national institutions for the promotion and protection of human rights.

Turning to matters related to discrimination, he said that the Constitution prohibited such treatment, except in certain cases under its Section 15 (4) “with respect to persons who are not citizens of Botswana”.  Parliament had enacted the Employment of Non-Citizens Act to regulate the employment “for reward or profit” of “certain persons who are not citizens of Botswana”.  That Act also required non-citizens to obtain work permits before they could “be engaged in any organization for reward or profit”.  At the same time, the Abolition of Marital Power Act had become law in 2004 and had done away with powers husbands previously had over the person and property of their wives.  That legislation had gone a long way towards endorsing the Constitutional right to equal protection under the law.

Another member of the delegation provided further information on measures adopted to address the status of women under customary law.  She said that, while customary laws persisted, the State had, through the promulgation of various legislation, empowered women by giving them a choice.  Women were able to acquire and dispose of property at any time they chose without reference to a “brother, father, uncle” or other guardian.  An interpretation of the Abolition of Marital Powers Act, to the extent that it dealt with immovable property, protected women’s rights to acquire and dispose of property.

On how the State reconciled the provisions of the Penal Code criminalizing same-sex sexual activity with its obligations under the Covenant, a member of the delegation said that the law criminalized same-sex sexual activity and the nation viewed such acts as immoral.  At the same time, while Botswana held such activity as contrary to traditional and religious beliefs, in line with the Covenant, any person believing that they were aggrieved in any way could seek redress before domestic courts.

Mr. SKELEMANI then took up a series of questions on capital punishment, stressing that the Government was open to dialogue with Committee members on the matter.  The State did not, under any circumstances, impose the death penalty on persons under the age of 18 or pregnant women.  But, the death penalty would certainly be imposed and carried out in cases of deliberate or premeditated murder, ritual killing, or where the perpetrator had acted to “improve their own standing in some way” by killing or seriously harming another.  “Those, we send to the gallows,” he said.

The Government certainly understood the difference between accidental deaths or crimes committed in anger and those that would, for instance, involve the skinning of a child that was still alive or the removal of that child’s liver and other body parts.  Such persons could not be said to have the right to life, he said, reiterating:  “Those types of persons we send to hang.”  The question of the death penalty was being discussed and debated, but until popular opinion changed on the matter, the law would stand.

He went on to say that murder and manslaughter cases went before the highest courts in the country. Once the death sentence was handed down, the case was sent to an advisory body, the Committee on the Prerogative of Mercy, which re-examined the legal issues, to consider if there were any extenuating circumstances.  The final decision rested with the President of the country.  Again, he assured the Committee that capital punishment matters would remain under discussion.  And certainly, as older officials left the Government and younger people took office, perhaps they would feel differently and, in their time, would be able to change the law.

Among the other specific elements of the Constitution, he said that, while corporal punishment was carried out in schools and elsewhere, when the Government had attempted to use corporal punishment “in instalments” -- giving “a stroke or two” before a person left prison as a reminder that they had broken the law -- it had been considered cruel and unusual punishment and that particular practice had been abolished.

Another member of the delegation handled questions related to torture and ill-treatment of prisoners or other detainees.  He said that the Prison Act prohibited any form of ill-treatment of prisoners and made it an offence to commit “unwarranted personal violence against any person in custody”.  Prisoners alleging such treatment were allowed under the law to lodge their complaints with any prison officer, visiting judicial official, or to make the complaint in writing to the Minister or Ombudsman.

On domestic violence, a delegation member said that statistical data on such violence was available, but had not yet been disaggregated from other forms of violence.  The Government, as well as non-governmental structures, were in place to address issues relating to violence, though not specifically with domestic violence.

Describing the situation in Botswana’s prisons and detention centres, a member of the delegation said that detainees could receive visits for 20 minutes.  Currently that was considered adequate.  A person could be detained for not more than 48 hours.  Otherwise, a warrant must be obtained for further custody.  According to the Constitution, every person was entitled to a lawyer at his or her own expense, including indigenous persons.  He went on to say that overcrowding was a major problem in Botswana’s prisons.  The current capacity was a 3,994, but as of this past November, actual numbers were at 6,042, including remands.  He said that efforts were being made to address the situation.

Mr. SKELEMANI agreed with the Committee’s experts that convicted prisoners were allowed very little contact with their families.  The 20-minute visitation schedule did not prohibit communication through correspondence.  He said that the State buried the bodies of condemned prisoners in the prison yard.  It was thought that to execute a person and then invite the family to come and pick up the body would be too stressful or torturous for the family.  “If any of you have seen the condition of a person after they have been executed, you will know what I mean,” he said.

As for informing family and friends of a scheduled execution, he said that, at one time, such persons had been given the exact dates of executions.  But, officials were then inundated with all sorts of special requests.  So, over time, the practice was ended.  Still, it was an area the Government could discuss with the Committee.  But, in more than 30 years as a member of the Bar, he had never come across anyone who wanted to know when the death sentence of a friend or relative was about to be carried out.  He believed people felt that, if a friend or relative had committed a crime for which the death penalty had been handed down, “then so be it”.  The matter was nevertheless under discussion and perhaps requests for a last visit to the condemned could be considered.

Experts’ Questions and Comments

Opening the first round of questions and comments form the Committee, MICHAEL O’FLAHERTY, expert for Ireland, praised Botswana for its exemplary progress in the socio-economic and development fields, among others.  At the same time, like every country on earth, Botswana could claim human rights challenges.  He was concerned by two of the Government’s ongoing reservations to Covenant articles 7 (torture) and 12 (freedom of movement).

Those reservations were “very unfortunate” and suggested that the State party would take a position that was contrary to established international norms.  He was certain that Botswana, with all its successes in other areas, did not want to be considered among the group of “pariah States”, especially on the issue of torture.  He hoped that the Government would remove its reservations to those articles as soon as possible.

He said that, while the report was very honest and “unafraid to be critical”, he wished that the responses had focused more on the current situation on the ground.  He had also noticed that the answers had skipped entirely over such issues as the worldwide problem of human trafficking, which were of great importance to the Committee.

Turning to specifics, he urged the delegation to again consider direct integration of the Covenant into the laws of the country, especially in light of what he saw as some incompatibilities with Botswana’s Constitution.  He was particularly concerned by what appeared to be some instances where discrimination was allowed.  He was also concerned that the country’s judges and lawyers were largely unaware of the Covenant and wondered if the Government would urgently consider initiating direct education programmes for professionals throughout the country.

On customary laws, he stressed that the Committee understood the sensitivities and complexities of such practice and was not asking that the Covenant be integrated into customary laws, but that such laws be carried out in a manner that did not violate the human rights of the people of Botswana.  He urged the delegation to seriously consider ways to raise awareness of the Covenant among traditional leaders or tribal councils.  He also noted that the delegation had not answered questions regarding the actions of local police and raising the awareness of those officials.  Since it was local police and community officials who often monitored human rights protections on the ground, it was very important to ensure that they were aware of the Covenant.

Turning to the Ombudsman, he felt that the scope of that Office was not very “fine tuned” and that many constraints had been placed on it.  He was also concerned by charges that the Ombudsman’s office did not always act independently.  To what extent were the officers trained to deal with human rights issues?  Finally, he asked why would Botswana, which was such a repository of good practice in so many other areas, be resistant to establishing a national human rights body?  Perhaps the Government would reconsider this year, in light of its first reporting to the Committee and the worldwide commemoration of the sixtieth anniversary of the Universal Declaration of Human Rights.

YUJI IWASAWA, expert from Japan, said that Botswana had had considerable success in building a State with economic prosperity, political stability and democracy.  He expressed concern that there were certain exceptions in the Constitutional clause against discrimination and asked whether non-citizens, in particular asylum-seekers, enjoyed the rights under the Constitution and the Covenant.  Because of those and other exceptions, including one on members of certain races or communities, a large segment seemed to be excluded from the provision on discrimination.

He also expressed concern on the status of women under customary law, because customary law might be applied in a manner that was inconsistent with the provisions of the Covenant.  According to the report, the Marriage Act did not apply to marriages under customary law.  Did the Abolition of Marital Power Act apply to such marriages? he asked.  How were customary law marriages regulated?  How was the equality of men and women guaranteed?  Under customary law, polygamy was not prohibited.  Did Botswana envision a prohibition of polygamy?  Under customary law, women lacked independent legal capacity.  What steps were taken to address that issue?

There were also differences in the treatment of men and women under common law in acquiring citizenship.  He noted, however, that a court had found that those regulations were unacceptable, quoting international treaties.  Also, the fact that HIV/AIDS was rampant and posed an enormous problem for Botswana did not justify the criminalization of same-sex activities by law.  Moreover, such criminalization did not contribute much to the prevention of HIV /AIDS.

AHMED TAWFIK KHALIL, expert from Egypt, remarked that the low number of commutation from the death penalty had not been explained and he expressed concern about the level of legal aid for the needy in capital offences.  The reservation to the Covenant regarding article 7 on torture sent the wrong message and should be withdrawn.  The Organization of African Unity (OAU) had raised the question, too.  It was said that people preferred corporal punishment above imprisonment and that the alternative of community service was not possible, because of a lack of supervision.  It was likely that people would prefer community service over corporal punishment, and the State should address the lack of supervision.  Corporal punishment was degrading and inhuman and obviously a clear violation of Covenant article 10.

On the mechanism to complain about torture, he said one got the impression that the mechanism did not function as one would have hoped.  There should be a clearer and more effective mechanism to investigate any case of torture.  What was the composition of the board of inquiry, and did it include the police?  How could a person in detention file a complaint?  Although organizations had the right to visit prisoners, he understood that not all requests to visit prisoners by non-governmental organizations were granted.  Also, what measures were being taken to eliminate the backlog in cases to be brought to court, so that people in detention would be brought to court sooner?  What measures were being taken to combat overcrowding in prisons?  The 20 minutes allotted for visits by friends and relatives of people condemned to death was too short and the secrecy surrounding the date of execution and place of burial had the effect of punishing the family.

Next, ELISABETH PALM, expert from Sweden, said that many of the delegation’s answers had been very short and did not deal with the current situation on the ground in many instances.  As for domestic violence, she noted that the Domestic Violence Act had been passed and was awaiting signature by the President.  She was reluctant to welcome the bill, however, because the delegation had not given any concrete information on the substance.  Neither had it provided any statistical information on instances of domestic violence.  The Committee had received information that such violence was on the rise.  Besides legislation, what other concrete efforts were under way to address this serious matter?

ABDELFATTAH AMOR, expert from Tunisia, asked the delegation to clarify the Covenant’s place in domestic and customary laws in the country.  He confessed that he was “somewhat curious and concerned” that Botswana’s report stated that customary law was “fluid” and specific to certain areas and regions.  If that was the case, it would be difficult to implement the tenets of the Covenant throughout the country.  He stressed that he had the utmost respect for traditional practices and customary laws, so long as they did not breach the Covenant’s provisions.  “Customary laws can in no way run counter to the Covenant,” he asserted, asking the delegation to clarify its position on the matter.

He was also concerned with ritual killings, which the Minister had raised in his opening statement.  Others had also raised the issue with the Committee.  It was important for the delegation to tell the Committee what measures were under way to eradicate the practice.  Had any initiatives been taken to end such killings?  What was the attitude of the State towards the practice?  What were the sociological impacts?

In a similar vein, RAJSOOMER LALLAH, expert from Mauritius, asked for clarification about what customary courts actually dealt with.  Could they heavily fine people and send them to prison?  Was there a limit to their competence?  Those were issues that were very important, since those courts handled the bulk of community-level legal proceedings in the country.

On equal protection under the law, he said that Botswana’s Constitution contained very limited definitions and descriptions of “discrimination” and who was covered by relevant prohibitions.  For example, when the Constitution referred to “person” did that mean women, as well as men?  By his reading, some of the provisions could be seen to discriminate against women by considering them “non-persons”.  Further, he asked if, under the law, Botswana’s President could be a woman?  Could women be included in the House of Chiefs?

RUTH WEDGWOOD, expert from United States, acknowledging that Botswana had achieved results for its people that were admired both throughout Africa and the world, addressed some matters of concern, including the matter of customary law, which had to be measured against the Covenant.  In that regard, she said that the idea that women did not have their own legal faculties was “perplexing”.  As for the disposal of bodies after an execution, she said that the family should have a choice to receive the remains.  As there was no chance to correct errors after an execution, the death penalty should be suspended if competent legal representation was not available.  Noting that condoms were not available in jail, she said that homosexuality inevitably took place in jail, even if it was illegal.  Also, people might be subjected to sex in jail against their will.  She also asked if women were permitted to participate in the dikgosi.

NIGEL RODLEY, expert from United Kingdom, remarked that the reservation under article 7 was exorbitant, as the State party could legislate the rack under that reservation.  He asked for more detailed information on the application of the death penalty and wanted to know how many commutations there had been.  He remarked that, if abolition had to wait for public opinion, as the report had indicated, it would not happen.  Public opinion follows abolition.  Africa had moved towards abolition.  “ Botswana seems to be an island of retention in a sea of abolition,” he remarked, and asked for any studies that had been carried out in the country on the deterrent function of the death penalty.

Delegation Responses

Mr. SKELEMANI said he was truly humbled by the observations of the Committee members and admitted that there could be an inconsistency between running a democracy and being too dogmatic.  Botswana was not interested in giving its people anything less than what was ideal.

Addressing the issue of torture, he reiterated that the Convention did not give a definition of torture.  Botswana law did not criminalize torture as such, but elements such as assault and subjecting people to non-acceptable behaviour were contained in the Penal Code and other legislation.  Ill-treatment was not allowed under the police act and prisoners act.  It had been an omission that trafficking had not been addressed in the report.  Trafficking did exist and was taken up through regional cooperation.

As for the dual system, he said that the reason treaties had not been domesticated was because there had been no difference between the Constitution and the text of the treaties.  The matter was open to discussion, however.

He understood that the division between customary and common law were irrelevant to the Covenant.  Botswana had continued to amend and put in place legislation that would gradually change customary law.  A gradual approach was necessary, because the matter was very political.  Botswana would make use of training courses available in the region to teach customary law officers about the Covenant or other treaties.

Even though customary allowed polygamy, he went on to say, economics prevented such arrangements.  Also, women no longer wanted to be married under customary law and nobody was forced into a polygamous marriage.

Addressing the issue of the Ombudsman, he said that institution had been established to address complaints about maladministration of Government institutions.  The Office of the Ombudsman acted independently and was not told what to investigate or how to do it.  It could question the Government and the actions of the Executive.

A human rights commission had not been established because it was an expensive institution to run.  It would be nice to have such an institution, but he was loath to establish an institution that was an institution only in name, without adequate funding.

He went on to say that Botswana’s Constitution set out relevant rights and derogations.  On discrimination against foreigners in the labour market, he said:  “Mine is a political Government:  I can’t be seen to be promoting foreigners, when my own people can do the job.”  So, the Government had put in place the Employment of Non-Citizens Act.  “So strictly speaking, we discriminate.  The people vote for me and any Government that says that it doesn’t care about its ordinary citizens, well, good luck to them,” he continued.  At the same time, he noted that refugees in the country were given permission to leave the camps and encouraged to participate fruitfully in society.  Refugees, “who are among us” were treated differently than foreigners.

To the question of whether there were discriminatory provisions in customary law, he said:  “Strictly speaking:  yes.”  Such practices were meant to bring order in particular communities and changing that situation would take time.  The Government wanted to eventually revamp the laws that favoured men over women.  As for same-sex sexual activity, he said the country’s prohibition predated the HIV/AIDS pandemic.   Botswana could not pretend that it prohibited the practice to curb the spread of HIV.  There were those in the community of nations that had moved farther than Botswana and did not abhor homosexual activity.  “We are abhorred,” he said.

Turning to Botswana’s reservations to article 7, he said that such reservations had been meant to preserve punishments that had been legitimate before the country’s independence, including corporal punishment.  While some people thought corporal punishment was the most barbaric practice in the world, he wasn’t so sure.  He had grown up under that system and believed he was a better person because of the application of “a nice caning” as a child to show him “the narrow and the straight”.  The application had always been to correct, not to kill.  Some punishments considered barbaric should be considered within the context of particular societies.  He could only speak about his generation.  When younger generations took office, “perhaps they could correct these things”.

He said that the Government had taken great strides to ensure that the domestic violence bill went a long way to address both physical assaults and psychological trauma associated with such violence.  Education was going to be critical in ensuring that the bill brought about the desired results.

He went on to say that, in cases where customary law was contrary to common law, customary law was invalid.  Customary law was fluid.  A community could change customary law easily if it considered it outdated.  No parliamentary action was necessary.

Addressing the issue of ritual killings, he said that some people believed that, if you took a part of a human being and mixed it with some herbs, you would become very strong.  Those parts, however, must be taken while the victim was alive.  People who committed such acts should be hanged.  There was no study about the deterrence value of executions.

He said the fact that customary law was applied to the majority of the people in Botswana was reason to bring it in line with all treaty obligations.  Jurisdiction of the customary court was by warrant.  It could not try murder and rape.

He affirmed that the word “person” in the law meant man or woman.  The word “he” should be read as meaning “he”, “she” and sometimes “it”.  Both he and she were used in modern legislation.  There were, indeed, women chiefs.  The President could appoint five members to the House of Chiefs and had appointed some women to it.  A woman could also become President of the Republic.

Addressing the question of hierarchy between the Chief Justice and the President of the Court of Appeal, he said the Chief Justice ran the judiciary administratively.  The President of the Court of Appeal only presided over the Court of Appeal.  For that reason, the Chief Justice had been placed over the President of the Court of Appeal.  A judgement of the President of the Court of Appeal would bind the Chief Justice.

Experts’ Questions and Comments

Mr. O’FLAHERTY, expert from Ireland, welcomed the admission that there was a problem of human trafficking and asked for more information about it.  He suggested that, aside from criminal law approaches, social approaches for the victims should also be used.  He also welcomed the expressed support for human rights training and suggested that the Office of the High Commissioner for Human Rights could be helpful.  He urged the establishment of a human rights commission, as experience in other countries had shown that gave the best value for the money in a democracy.  Again, the Office of the High Commissioner of Human Rights could be helpful.  He reiterated that the reservation to article 7 looked awful.  It suggested that the State party wanted to have impunity to perpetrate torture.  The reservation should be withdrawn.

Mr. IWASAWA, expert from Japan, took note of the expressed willingness to review the matter of criminalizing same-sex activities.  He underlined that, when the Covenant spoke of “everyone” and “no one”, those terms included non-citizens.  He reiterated his concern about section 15 of the Constitution, which included exceptions to the prohibition of discrimination.

Mr. AMOR thanked the Minister for his frank replies to the Committee’s questions.  He also asked for clarification about the number of ritual killings that had taken place in the country over the past three years.  What was being done to change local attitudes?  What was the media’s reaction to those crimes?

In response, Mr. SKELEMANI said that the Government was aware of the issue of human trafficking.  No official programme targeting that scourge had been established, but the Government was open to discussions with the Office of the United Nations High Commissioner for Refugees and the Office of the United Nations High Commissioner for Human Rights to consider the feasibility of speedily setting up such a programme.

As for Botswana’s reservations to the Covenant’s article 7, he said that the deterrent qualities of corporal punishment were quite plain to him, although that was perhaps because he had grown up under that system.  On the Employment of Non-Citizen’s Act, he reiterated his belief that it was his job to protect the citizens of Botswana, not to “take care of someone else’s children”.  On ritual killings, he said that, encouragingly, there had not been that many, but the delegation would consult with officials at home and provide the Committee with the latest figures.  At any rate, there would always be more cases reported than prosecuted because, in many cases, it was difficult to prove that a murder had been a ritual killing.

Replies to Expert’s Written Questions

Taking up matters related to the independence of the judiciary, a member of the delegation said that the Government had ensured that issues such as the appointment of judges, removal from office and tenure of judicial officials were all set out in the Constitution.  The independence of judges was also enhanced because they could not be sued by persons in any cases that had been tried before them.  Turning to related matters, she said that indigent persons facing trial were provided legal counsel.  To that end, there had been some questions about the quality of such representation, so the Government was actively exploring the notion of setting up legal aid services.

She also noted that citizens could request that their cases be transferred out of customary courts.  If such a request were denied, then the case was suspended and brought before the Customary Court of Appeal.  It would be an offence for a customary court to hear a case until a decision had been made on the matter.  The State was aware that litigants might not be aware of their right to have a case transferred, but, as far as the Government knew, such litigants were generally informed of that right.

Addressing a question about the media, another member of the delegation said that today, Botswana had at least nine privately owned newspapers, apart from the free Government newspaper.  The private media far outstripped the Government newspaper in circulation.  The National Broadcasting Board had licensed three radio stations outside of the two public radio stations.  There was one television station for Gaborone, which was trying to expand.  Online services operated without Government interference.  Both private and public media operated freely, as long as they did not violate the rights and freedoms of other people, in which case the aggrieved could sue for defamation.  Courts had emphasized the right of newspapers to operate freely, ruling that the Government could not withdraw advertisements in some newspaper because it did not like its coverage.  No journalist or media practitioner had ever been barred from pursuing his or her professional activities under any section of the Penal Code.

Addressing a question about the implementation of the minimum age for marriage of 18 years, he said Botswana recognized common law and customary marriage.  Marriage below the age of 18 was forbidden.  Under common law, marriages were registered, so that compliance was relatively easy to monitor.  Customary law marriages were not registered and were carried out under the practices of different ethnic groups or religions.  It was, therefore, difficult to monitor or enforce the age limit.  However, the Marriage Act was being amended to ensure that all marriages would be registered, including religious marriages.

Another delegate addressed a question about why women were subjected to the guardianship of their fathers, brothers or uncles and said that unmarried women had their full legal rights on their own.  The Abolition of Marital Power Act had abolished the common law principle of marital power for the man.  The guardianship of unmarried women was more a matter of cultural practice.  Polygamy was condoned under customary law and the Government had not yet engaged in debates to prohibit that practice.

Addressing the issue of political parties, one delegate said that the Government did not fund political parties.  The use of “meagre public funds” was limited to priority areas.  It was felt that political party funding would lead to the proliferation of parties and would not benefit the general public.  Debate on the matter was ongoing, however.  All political parties had access to the public media.  Coverage of political party activities during campaigns was aired widely on radio and television, as well as in public print media without prejudice.

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For information media • not an official record