Human Rights Committee

Ninety-second Session

2517^th Meeting (AM)

HUMAN RIGHTS COMMITTEE CONCLUDES TWO-DAY CONSIDERATION OF BOTSWANA’S INITIAL

REPORT ON COMPLIANCE WITH INTERNATIONAL COVENANT ON CIVIL, POLITICAL RIGHTS

Experts Pose Questions on Customary Law, Death Penalty Use;

Justice Minister Assures Committee of Continued Dialogue on Issues Raised

Botswana “did have the means, did have the institutions, and did have the stability”, to pursue a path of reforms that would bring its legislation in line with the provisions of the International Covenant on Civil and Political Rights and other international human rights instruments and norms, the Chairman of the Human Rights Committee said at the end of the two-day dialogue it had held with that country’s delegation.

Summing up the discussion, Rafael Rivas Posada, expert from Colombia, said that the past two days had been particularly informative.  Common denominators had included concerns about harmonizing customary laws with the tenets of the Covenant.  Another vital point for the Committee had been the need for the Government to press ahead with its efforts to establish national human rights institutions.

He went on to say that the Committee was also concerned about discriminatory clauses in the Marriage Act, as well as the criminalization of same-sex sexual activity, which seemed to go against the provisions of the Covenant.  And, of course, the Committee was very concerned about the imposition of the death penalty and statistical data lacking on torture and other ill-treatment, making it difficult to consider the scope of those practices.

This morning, experts from the 18-member Committee questioned the Botswana delegation on such issues as under-age marriage in customary law, equal participation of women and of tribal groups in politics and society, the resettlement of people living in the Central Kalahari Game Reserve, and a possible moratorium on the death penalty as a first step towards abolition.

“Nothing was cast in stone,” Botswana’s Minister of Justice, Defence and Security Phandu Skelemani assured the Committee, expressing his hope for continued dialogue on the issues raised.  On one such issue, for example, the Committee was told that, under customary law, there had been cases of under-age marriage, but no customary court would censor a girl who refused to marry.  A new law would require registration of customary law marriages, so that the minimum age requirement of 18 years could be enforced.  The delegation agreed with the Committee that customary law should be in compliance with the provisions of the Covenant.

Seven of the 61 members of Parliament were women, the delegation said, on another issue, and 57 per cent of registered voters were women.  Both in government and in the private sector, the number of women appointed to decision-making positions was steadily increasing.  Botswana was opposed to collecting disaggregated data on tribal origin.

A moratorium on the death penalty was not necessary, as there was no intention to go the path of abolition, Mr. Skelemani stated.  Some tribal chiefs had suggested the death penalty for even lesser offences than currently applied.  Public discourse on the issue should continue, however.

As for the resettlement of people in the Central Kalahari Game Reserve, Mr. Skelemani explained that a poor country could not afford to offer basic services to a scattered population and had, therefore, tried to move people closer together.  No force had been used in resettlement, and people could refuse resettlement.  A number of people who had left the Reserve had sued the Government, and the High Court had ruled in their favour.  Those people had been allowed to go back.  The issue “cannot be resolved by a Court decision, but only by negotiations”, he said.

The Committee will meet again at 10 a.m. Monday, 24 March, to take up consideration of the third periodical report of Panama.

Background

The Human Rights Committee met today to continue its consideration of the initial report of Botswana on its implementation of the International Covenant on Civil and Political Rights.  (For background information, see Press Release HR/CT/695.)

Botswana’s Answers to Written Questions

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.

Addressing questions about women’s participation in political life, a member of the delegation said that, of the people registered to vote for the last two elections, the majority, or about 57 per cent, consisted of women.  Out of the 61 members of Parliament, 7 were women.  The Deputy Speaker of Parliament was a woman.  Participation of women at the decision-making level in the private sector was also notable.  Participation of women at decision-making levels both in the public and private sector had significantly advanced over the years.  As no statistical data were gathered based on tribal origin, she could not answer a question on the participation of non-Tswana people in Government.

PHANDU T.C. SKELEMANI, Minister of Justice, Defence and Security of Botswana, addressed the issue of relocation of the residents of the Central Kalahari Game Reserve, explaining that the country had to redistribute whatever little wealth it had.  As people tended to live far apart from each other, it was difficult to provide services and infrastructure.  A settlement policy had, therefore, been adopted whereby people moved closer together so that services and water could be supplied.  Development was bottom-up and started at the village.  People decided in their area on priorities.

Basarwa people who had been resettled from the Game Reserve had gone to the High Court, which had issued a decision, he said.  In response to that decision, the Government had published its understanding of that judgement.  The applicants and their dependents were allowed to return to the Reserve and could apply for hunting licenses, as was customary.  Some licenses had been refused because applicants had earlier been poaching.  Returnees could not bring their domesticated animals, because the area was meant for wildlife.  As the Court had not instructed the Government to supply water and services, the Government had not done so, as the whole resettlement had started because of the impossibility of providing such services.

He said the issue of the Game Reserve could not be resolved by a Court decision, but only by negotiations.  He would negotiate with the Basarwa people, but not with Survival International.  It was not true that people had been removed by force.  On the contrary, people had stayed in the area because they refused to be resettled.  The majority of the Basarwa, however, lived outside the area, in settlements with schools, water and clinics.

On equal participation of all ethnic groups in the House of Chiefs, he said the Government had elaborated a bill, “which was just the beginning” of its efforts to ensure such participation.  That bill drew from some 20 regions around the country and people that felt they had been left out of the process altogether.  He was aware that there were still going to be some complaints, but the Government believed it was a “good beginning”.  The effort also focused on bringing in ethnic minorities, including a Basarwa representative, women and any person elected from a respective region.  Under the bill, such persons did not have to be “chiefs”, as such.

While it perhaps would have been ideal to just invite the chiefs of all the tribes, the Government was not really sure how many tribes there were, so this was the best way.  At the same time, civic organizations had warned the Government that its definition of “chief” and “tribe” excluded some groups.  To address the issue, the Government had approved the Bigosi Bill.  Further, the Tribal Territories Act did not confer tribal territory on any tribe.  The Boundaries Act, on the other hand, defined the boundaries of Botswana, and similarly, did not confer territory on any tribe.

Turning to traditional languages, he said Basarwa and non-Tswana languages were not taught in schools nor were they used as teaching languages.  Setswana and English were the only languages used in schools.  He stressed, however, that funds permitting, pre-primary education would be introduced under National Development Plan 10, which would open the way for other languages to be taught.  In that case, children would be taught in the language dominant in the area where their schools were located.

Experts Comments & Questions

AHMED TAWFIK KHALIL, expert from Egypt said that he had been pleased to see the delegation’s written responses on the matter of judicial independence, which fleshed out the oral presentation.  On the Organization of African Unity (OAU) mission to Botswana in 2000, which had reported concerns about the availability of competent legal representation, particularly for indigent persons facing capital punishment, he hoped that the delegation was giving serious consideration to setting up a system of competent legal aid to address such situations.

He also reiterated his concerns about lagging efforts to raise awareness about the Covenant throughout the country’s judicial system.  That was particularly important since the delegation had acknowledged that, first, the Covenant had not been translated into any traditional languages and, second, some 80 per cent of the legal proceedings in the country were handled by customary courts.

On matters regarding freedom of expression, ELISABETH PALM, expert from Sweden, asked for clarification about the operating procedures of Botswana’s two radio stations and what geographical areas their broadcasts covered.  She was very concerned that the report only mentioned one television station.  Was that the only television station in the country?  Was it State owned?  She also asked for more information on the existence and broadcast range of other television stations in the country.

She also remarked that the delegation had given “very short” answers to the Committee’s request for detailed information, including statistical data and examples of cases on implementation of the Penal Code regarding the actions of journalists and others in relation to free speech and the enjoyment of the right to freedom of expression.

The sections of the Penal Code in question set out, among other things, fines for “any persons who in a public place or at a gathering uses abusive or insulting language in relation to the President, any member of the National Assembly or any public office […]”,or “any person who does any act or utters any word or publishes any writing with intent to insult or to bring contempt or ridicule:  the Arms or Ensigns Armorial of Botswana Government; the National Flag of Botswana; the Standard of the President; or the National Flag of Botswana […].”  She thought the language included in those sections was overbroad and “extremely vague”.

YUJI IWASAWA, expert from Japan, noted that the Marriage Act prohibited marriage for people under 18 years, but it did not apply to customary law.  Under customary law, could people younger than 18 marry?  He had received information that children under 18 had been forced into marriage under customary law.  He welcomed the fact that the Marriage Act was being amended, but emphasized the importance of customary law being applied in conformity with the Covenant.

He said that more general information on the political landscape would be welcome, such as the number of active political parties and the size of membership.  He asked how political parties were funded and if there existed any corruption where the parties were funded privately.  Although the number of women participating in political life was encouraging, he noted that Parliament was only 11 per cent female.   He asked the proportion of women among the judges in the Court of Appeal, as well as among all judges, prosecutors and practicing attorneys.  He also wanted more information on women participating in Government departments and women having management positions in the private sector.  He hoped that disaggregated data on tribes could be included in the next periodic report.

As for the issue of resettlement, he said that, contrary to what the delegation had stated, he had received information that people had been forced to move out of the Reserve by terminating basic services to them.  He asked for more information about the conclusions of a fact-finding mission that had been sent to the region.  He also asked if the special measure regarding the Basarwa people had been removed from the Constitution and, if so, why and what the impact had been.  What was the living condition of those living within and outside of the Reserve?

MICHAEL O’FLAHERTY, expert from Ireland, also underlined the importance of disaggregated data on tribes.  The last disaggregated data had been collected during the colonial period.  He expressed concern that discrimination between “major” and “minor” tribes continued in the successor institution to the House of Chiefs.  He also expressed concern that the Bogosi Bill, which was intended to address the concern of a large number of ethnic communities, had not been subjected to a major consultation programme.  He also asked why Tswana people, who were not the majority in the country, were a majority in such important institutions as the Land Board.  Welcoming the new approach to languages, he asked if it was true that radio stations were unwilling to broadcast songs in non-Tswana languages.

Finally, he asked about reports on historic and widespread discrimination against the Wayeyi people.  In particular, he wanted more information on the reported suspicious deaths of two succeeding Wayeyi chiefs and the fact that the current chief had not been recognized by the Government.  Further, there was a reported unwillingness on the part of the police to properly investigate the matter.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, asked what happened after the Judicial Services Commission, established to inquire into the alleged misconduct of judges, had delivered a recommendation to the President.  He also wanted more information on provisions of legal aid to people accused of a criminal offence other than a capital offence.

EDWIN JOHNSON LOPEZ, expert from Ecuador, asked what was being done or was going to be done on a moratorium on the death penalty, as a first step towards abolition.  Did the Government intend to influence public opinion, in particular tribal chiefs, to promote abolition?

ABDELFATTAH AMOR, expert from Tunisia, asked for further clarifications on the Assembly of Chiefs, especially that body’s make-up.  He also wondered what laws governed the body.  Were they based on customary laws or State legislation?  How were its decisions taken?  Were those decisions “laws”, as such, or merely recommendations?

On issues related to freedom of movement, he said while the Government’s efforts to engage dispersed populations were commendable, more concrete actions were needed to provide such groups with basic services and adequate resources, and to involve and integrate them into wider society in a way that did not undermine their freedom of movement and bolstered socio-economic development for the entire country.

RUTH WEDGWOOD, expert from the United States, said that customary laws could not be “hived off” in some reserve, immune from Covenant’s ideals.  Along those lines, she still did not understand why lawyers were not allowed to participate in customary court.  To forbid their appearance was “quite a stark rule”.

Lawyers were not always bad, she said, particularly in cases where young women and girls or indigent persons might be unaware of their rights.  Lawyers might also help develop the laws of the country and help ensure that they were more consonant with the Covenant.  She was also concerned by the absence of lawyers because Botswana’s customary court system was quite intricate and sophisticated, and included, among others, even a court of appeal.

On the Central Kalahari Game Reserve and its indigenous population, she understood the need to carefully monitor and manage that famous wildlife refuge, for both economic and ecological reasons, but there was also a need to protect the way of life of the people that lived there.  She was very concerned that Botswana’s Government did not allow the use of bore holes to store water, which meant that the people had to truck their water in.

“That’s like saying that nobody but Donald Trump can live there because, among other things, it takes gas to get it in,” she said.  She reiterated her call on the Government to reconsider its stance on such persons living in the Reserve, adding that soon, some pharmaceutical company would probably come around looking for traditional medicines and the country would have lost its cultural memory in that regard, because the people who could provide the information -- and help generate resources for the entire country -- would no longer be living on the land.

Botswana’s Response

Mr. SKELEMANI said that judges could only be removed if they could no longer carry out their duties, either because of ill-health or “misbehaviour”.  He said that he hoped the upcoming study on the provision of legal aid services would point the way forward on how to handle the situation of indigent persons before the court.  On customary court proceedings, he said that he could not remember anyone being disadvantaged because their case was being tried in such courts.  Lawyers were present and sitting in the courtrooms.  There were rules and litigants were informed of their rights.  Customary courts were not “kangaroo courts” as some people seemed to think.  That, however, did not mean that Botswana did not want to keep improving them, he added.

Concerning the reach of radio and television stations, he said that he believed that one radio station was now able to cover the entire country.  The Government was also beginning to promote the establishment of community radio stations.  Under that scheme, local communities would apply for a licence and begin broadcasting in a limited range, often in a local language.  As for television, he said there was only one State-owned television station.  Turning next to freedom of expression, he said that terms in the Penal Code, such as “insult” or “ridicule,” should be understood to mean what they would in the English language.  He said that he always tended to separate strong language from “abuse”.

On the Marriage Act, he said that, in some cases, a young lady would be chosen at a certain time to marry a man and the two would then grow up knowing that they would marry each other.  At the same time, if a young lady decided not to marry her chosen husband, there were no punishments under customary law.  He did not necessarily believe that the laws needed to be amended to ensure that girls could not be married until they were 18.  He said he would be “very surprised” if, today, parents would marry off their daughters before that age.

On political parties, he said that more data would have to be provided, because in Botswana a “political party” could be considered a man and his wife, a local community, or even and man and his drinking buddies.  He would have to provide more figures on the exact number of political parties.  He went on to say that, while there were not so many women participating in the political and judicial systems, the numbers were improving, largely because of improved education opportunities.

On terminating essential services within the Game Reserve, he said that the High Court did not say that the Government had been wrong.  In fact, the cost of trucking in water and vehicle repair, among other things, was just too much.  As for the bore holes, he said that they were not meant for the Basarwa.  They would have to get permission to drill such holes.  He went on to say that the Constitution did not prevent people from going into the Reserve.  Game preserve laws governed such movement.

He said that settlements outside the Reserve were providing food rations to keep people from starving.  He would say that they would be better off outside the Reserve, where there was water, health clinics and education facilities.  Others would disagree.  So, perhaps there was no objective way to deal with it without causing frustrations.

He reiterated that he had no statistical information on the number of tribes and their locations throughout the country.  The Government had tried to address the issue of “major” and “minor” tribes, even though its attempts might not have been so successful.  Among other things, it tried to rename certain areas, but the uproar had been such that the plan had been abandoned.

It was “nonsense” that non-Tswana songs were not broadcast on radio, he answered to another question.  The radio stations broadcast songs in many languages.  There was no prohibition on any language.

As for the deaths of the Wayeyi chiefs, he said that only a post-mortem could determine whether there had been foul play, and such a post-mortem had not been requested.  The current chief had not been recognized because of procedural matters.  That issue would be solved by the new Bogosi law.

Addressing the matter of the Tribunal, he said the Tribunal consisted of a Chairman and two people who must have held a high judiciary office.  The Tribunal’s recommendations had to be followed by the President.  Also, the matter of legal aid was an issue for further study.  Pro bono legal aid was limited to cases before the High Court.  A group within the University of Botswana was publicly funded by the Government to help some people who were indigent.

Turning to the death penalty, he wondered why a moratorium was necessary if there was no intention to go the path of abolition.  The tribal chiefs had not been taught the provisions of the Covenant.  Some of the tribal chiefs had suggested the death penalty for even lesser offences.  The House of Chiefs was allowed to discuss anything within the purview of Botswana, but its resolutions were not binding on Parliament.  Some customary courts decided only minor disagreements.  Other customary courts could decide over more serious matters and kept written records.  Those courts had to make sure that the accused was informed.

Attorneys tended to complicate matters with technicalities, he said to another question.  The customary courts, however, immediately went to the heart of the matter and had no time for technicalities.  Most lawyers had not read customary law and did not speak the local language of the courts.

Concerning the bore holes in the Kalahari Game Reserve, he said those bore holes were the property of the Government and were not going to be equipped for the Basarwa people.  After all, those not involved in the litigation were not covered by the Court decision.

As for women disadvantaged in divorce cases, he said a new bill had replaced the word “man” and “woman” by the word “spouse”, which would establish equality.  The bill would be made available to the Committee.

Experts’ Questions and Comments

IULIA ANTOANELLA MOTOC, expert from Romania, asked what efforts the Government undertook to educate the people on the principles of the Covenant.

Ms. WEDGWOOD, expert from the United States, said that the benefit of a court ruling to people not parties to a case was that Governments had an obligation to clarify the law to their citizens.  When decisions were taken in any court that changed laws, the people should be informed.  Returning to the issue of bore holes in the Game Reserve, she said “I know they’re yours, but one could be generous.”

Ms. PALM, expert from Sweden, said that she appreciated the delegation’s intent to provide case law on Penal Code sections 90, 91, 92 and 93.  She also would like to know the number of persons charged under the provisions and, if fines had been handed out, what the dollar amounts had been.

NIGEL RODLEY, expert from the United Kingdom, reminded the delegation that the Committee had requested information on the imposition of the death penalty.  He wanted to know the percentage of those cases that had involved people skinning people alive.

Summing up the discussion, Committee Chairperson RAFAEL RIVAS POSADA, expert from Colombia said that the past two days had been particularly informative.  Common denominators had included concerns about harmonizing customary laws with the tenets of the Covenant.  The Committee understood the difficulties faced in adopting such practices and customs, but the State party must continue to make efforts to disseminate -- and educate -- on the principles of international law.

Another vital point for the Committee had been the need for the Government to press ahead with its efforts to establish national human rights institutions.  The Committee would eagerly await news in that regard.  He went on to say that the Committee was also concerned about discriminatory clauses in the Marriage Act, as well as the criminalization of same-sex sexual activity, which seemed to go against the provisions of the Covenant.

And, of course, the Committee was very concerned about the imposition of the death penalty.  Curiously, the examples given by the delegation to support retention of the death penalty had been particularly cruel murders and ritual killings.  He joined other Committee members in wondering what other crimes triggered the handing down of that punishment.  The Committee was also very concerned that there was statistical data lacking on torture and other ill-treatment, making it difficult to consider the scope of those practices with respect to the promotion and protection of human rights.  During the discussion, he also had wished for more information on prison overcrowding, as well as on how the Government was going to dealt with that challenge.  The Government must consider means other than building more prisons.

The Committee was also concerned by the fact that Botswana did not notify families about the exact date or time of a relative’s impending execution; neither did prison officials return bodies of the deceased to the families or allow relatives to be present at burials, which took place within prison confines.  Those were serious matters that needed to be addressed.  At the same time, he said the Committee believed that Botswana was a country that “did have the means, did have the institutions, and did have the stability”, to pursue a path of reforms that would bring its legislation in line with the provisions of the Covenant and other international human rights instruments and norms.

Mr. SKELEMANI said his delegation appreciated the discussion and believed that the issues raised by the Committee concerned matters over which national dialogue and debate would and should continue.  The delegation looked forward to getting back to the Committee with more detailed answers on some points, but in the meantime, the experts should be aware that nothing was yet cast in stone.  The process was ongoing and would include dialogue with the wider Government, as well as the people of the country.  Specifically on the issue of returning to family members the bodies of condemned prisoners, he said that after the dialogue with the experts, he thought that perhaps doing so might not cause harm to those relatives.  At the same time, he believed public discourse on the matter should continue.

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For information media • not an official record