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Title: Botswana Human Rights Practices, 1995
Author: U.S. Department of State
Date: March 1996
BOTSWANA
Botswana is a longstanding, 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. Steady diamond revenues and effective economic and fiscal
policies resulted in steady growth, although the economy grew at a
relatively modest annual rate of 4 percent following a downturn from
1991 to 1993. Per capita gross domestic product was approximately
$2,800 in 1995. 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. Despite some continuing
problems, Botswana's overall human rights record has been consistently
positive since independence. There were credible reports that the
police sometimes mistreated criminal suspects in order to coerce
confessions, and members of the police riot squad were accused of using
excessive force in quelling violent student demonstrations in February.
Women continued to face legal and societal discrimination, and violence
against women is a continuing problem. 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. In many instances the judicial system did not
provide timely fair trials due to a serious backlog of cases. Trade
unions continued to face some legal restrictions, and the Government did
not always ensure that labor laws were observed in practice.
The Government took a number of steps to address human rights problems
in 1995. In September the Government announced plans to construct a
separate detention facility for refused asylum seekers, and in August
Parliament ratified the Citizenship Amendment Act, designed to bring
Botswana legislation into conformity with the Constitution, and remedy
citizenship gender inequities. In March Botswana ratified the
International Convention on the Rights of the Child.
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 killings.
In a case related to February's violent student protest, a member of the
riot police (the Special Support Group - SSG) was convicted of the
murder of a young man who apparently had no connection with the
demonstrations. Hearings in mitigation of sentence were scheduled for
February 1996.
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 1995 there were no allegations of similar
mistreatment, and beatings and other forms of extreme physical abuse
remained rare.
In February some poorly trained members of the SSG reportedly used
excessive force to quell violent student demonstrations over the
Government's failure to prosecute suspects in a ritual murder of a 14-
year-old girl. In separate incidents related to the demonstrations, one
person was killed and another paralyzed. Several students arrested
after the riots alleged police assault. Students who had been detained
were released and charges against them dropped.
Unlike past years, there were no reports that Department of Wildlife and
National Parks (DWNP) wardens tortured suspected poachers in remote
areas. Both the DWNP and the rest of the Government have long condemned
such practices.
Prison conditions meet minimum international standards, although
overcrowding is a problem. The Government permits visits by human
rights monitors, and women in custody are placed in the charge of female
officers.
The Government neither forcibly repatriates nor deports failed asylum
seekers, but it has incarcerated them alongside convicted felons. By
mid-year all previously incarcerated asylum seekers had been permitted
to move to Dukwe Refugee Camp, and only a few new arrivals suspected to
be economic migrants were being incarcerated. In September the
Government announced plans to build a dedicated facility for refused
asylum seekers.
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. Upon
arrest, suspects must be informed of their legal rights, 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, and
there is no public defender service. Two nongovernmental organizations
(NGO's)--the University of Botswana Legal Assistance Center and the
Botswana Center for Human Rights--provide pro bono 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.
Following student demonstrations in February (see Section 1.c.), police
arrested several hundred persons. All detainees were subsequently
released and charges were dropped.
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 an
accumulated 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. As a rule, courts
appoint public defenders only for those charged with capital crimes
(murder and treason). Those charged with noncapital crimes are often
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.
Implementation of the 1994 Anticorruption Act assuaged earlier concerns
that it would weaken the defendant's constitutional presumption of
innocence.
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 from
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 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,
censorship, or intimidation. The Government also 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. There are no privately owned radio or
television stations, but there is a semilegal television station
broadcasting 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. However, the courts dismissed in March the only recent
case, filed in 1993, against two journalists.
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 barriers to domestic and international travel or migration.
Citizenship is not revoked for political reasons.
The Government cooperates with the U.N. High Commissioner for Refugees
and other humanitarian organizations in assisting refugees. There were
no reports of forced expulsion of those having a valid claim to refugee
status. While asylum seekers entering Botswana are still occasionally
placed in prisons with convicted felons on arrival, the Government has
made substantial progress in providing a more secure environment for
those whose applications for permanent asylum have been rejected. In
August it released a number of failed asylum seekers from prison and
permitted them to reside at Dukwe Refugee Camp, and in September
announced plans to build a separate facility for asylum seekers.
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) 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.
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 women 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, and there were no court cases related to
domestic violence in 1995. Spousal abuse is beginning to receive
increased attention both from the media and from local human rights
groups.
Women in Botswana do not have the same civil rights as men. However,
one important step was the resolution of the "Unity Dow" case through
the ratification of the Citizenship Amendment Act in August. This Act
brought an end to discrimination against women in transmitting
citizenship to children.
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. 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. The Government announced its intention to
review all potentially discriminatory legislation, although the precise
modalities of this review had not been finalized at year's end.
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
coordinator of the small Women's Affairs Unit is charged with handling
women's issues.
Children
The Government provides 7 years of education for children. 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 pattern of
societal abuse against children. Botswana ratified the Convention on
the Rights of the Child in March.
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.
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 and have lost access to
their traditional land. The Basarwa are vulnerable to exploitation, and
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, and 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.
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).
In addition, the law 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, and collective bargaining is virtually nonexistent in most
other sectors.
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 Constitution specifically forbids forced or compulsory labor, and it
is not praticed.
d. Minimum Age for Employment of Children
Although education is not compulsory, the Government provides 7 years of
free education to every child, and most children in Botswana 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
assume hazardous labor, including in mining. District and municipal
councils have child welfare divisions which are responsible for
enforcing child labor laws.
e. Acceptable Conditions of Work
The minimum monthly wage for full time labor is $100 (270 pula), which
is just under 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 began
developing a small number of potential cases to take to the Industrial
Court, but none had been brought before the Court by year's end.
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 $92.60 (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.
(###)
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