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TITLE: BOTSWANA HUMAN RIGHTS PRACTICES, 1993
DATE: JANUARY 31, 1994
AUTHOR: U.S. DEPARTMENT OF STATE
BOTSWANA
Botswana is a multiparty democracy. The Constitution vests
legislative power in the 38-seat National Assembly
(Parliament), elected every 5 years, and executive power in the
President, currently Sir Ketumile Masire, who was reelected in
1989 for a second 5-year term. The President selects his
Cabinet from members of the National Assembly. While Botswana
has several active political parties, the country's politics
are dominated by the governing Botswana Democratic Party
(BDP). The courts operate independently of both the
legislative and executive branches. All citizens, regardless
of race, are free to participate fully in the economic and
political life of the country.
Botswana's military, the Botswana Defense Force (BDF), numbers
about 8,000 soldiers, and the Botswana National Police (BNP)
has about 3,000 members. Both the BDF and the BNP are
subordinate to civilian authority.
The economy is market oriented with strong encouragement for
private enterprise. Spurred by diamond revenues, the country's
economy expanded rapidly in the 1980's, although the growth
rate slowed in 1992-93. Since independence in 1966, per capita
gross domestic product (GDP) has increased from $69 to a
current figure of about $2,590. However, more than 50 percent
of the population lives outside the formal sector, gaining its
livelihood from subsistence farming and animal husbandry.
Furthermore, income distribution is heavily skewed, with the
top 20 percent of the population probably earning more than 60
percent of total income and the bottom 40 percent earning as
little as 10 percent of the total.
Botswana's laws and legal system provide for a broad range of
individual rights and freedoms, which are widely observed in
practice. However, women face significant legal and practical
discrimination, and violence against them is a growing
problem. Dwellers in remote areas and groups not numbered
among the eight "principal tribes" identified in the
Constitution do not enjoy full political rights or full access
to social services. One man died while in police custody in
November 1992 after allegedly being tortured; five police
detectives were convicted of manslaughter and sentenced to 5
years in prison (of which 3 years were suspended) for causing
the man's death. There were credible reports that occasional
mistreatment of suspects continued in 1993. Labor has the
right to organize freely, although trade unions continue to
face certain legal restrictions. The press, human rights
groups, and others sharply criticized the Government's use of
its power to expel foreigners without giving reasons.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including
Freedom from:
a. Political and Other Extrajudicial Killing
The death of the suspect in the November 1992 case was the only
confirmed killing by police resulting from beatings or
shootings which were not strictly in self-defense.
b. Disappearance
No instances of politically motivated disappearances were
reported.
c. Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
Although not authorized or routine, torture of suspects appears
to be more common practice than was previously known. Officers
found to have abused suspects have been subjected to internal
disciplinary procedures and criminal prosecution. A suspected
robber died in police custody in November 1992 after reported
suffocation by a plastic bag. Five police detectives were
convicted of manslaughter and sentenced to 5 years in prison
(of which 3 were suspended) for causing the man's death. The
murder charge was downgraded to manslaughter because the police
were acting in the line of duty at the time. The judge
explained the relatively light sentence by pointing out that
the officers had no prior records of misconduct and that he did
not want to "demoralize" the rest of the force. Several
credible accounts of such suffocation torture to extract
confessions or leads in serious crimes surfaced after the 1992
death. Game scouts (wardens) accused of mistreating suspects
in 1992 were suspended and prosecuted during 1993 but were
acquitted of assault due to lack of evidence. A former
policeman alleged that torture of suspects in murder cases is
"common" and not reported or stopped by higher authorities.
Annually, a handful of game scouts and police found to have
abused suspects have been been subject to disciplinary actions
(transfer, suspension pending investigation, and reprimands),
but police are reluctant to punish abuse of authority in their
ranks and even more reluctant to have it publicized; so many
abusers have not been disciplined. Prior to 1992 there were
succesful civil suits against police for mistreatment, and
another well-documented civil suit for damages stemming from a
1991 case--but significantly against the chief suspect in the
1992 death case--is currently in court. Such punishments do
not appear to have been an adequate deterrent, for credible
allegations of mistreatment continue.
The Government makes efforts to protect women in custody from
rape and other abuse. Arrested women are placed in the charge
of female police officers, reducing the potential for
mistreatment by male police officers. Prison conditions are
generally acceptable. Basic nutritional and hygenic
requirements are met. Inmates, including some illegal
immigrants later found to be elgible for refugee status,
complained of mistreatment (pushing, rude treatment, denial of
meals or privileges for relatively minor infractions). Such
abuse does not appear to be widespread or condoned. Prisoners'
complaints were not rigorously investigated; no prison officer
was punished in 1993 for mistreatment of inmates.
Caning is allowed for certain offenses for men below age 40.
Strict conditions regulate the size of the cane, require
medical examinations of the prisoner before and after
punishment, and prescribe strokes only across the buttocks. A
recent High Court opinion forbids corporal punishment for
children under 14. Parents and village headmen, however, may
beat children under rules of "traditional punishment."
d. Arbitrary Arrest, Detention, or Exile
Citizens are protected from arbitrary arrest under the
Constitution. An arresting officer must explain the crime an
arrestee is accused of and advise that the arrestee has the
right to remain silent. In most cases, a suspect may contact
anyone of his or her choosing and must be charged before a
magistrate within 48 hours of arrest. Bail is allowed and
detainees have the right to hire attorneys of their choice.
Poor police training and poor communications in rural villages,
however, make it difficult for detainees to obtain legal
assistance, and procedures are not strictly followed. An
automatic public defender service for those unable to afford a
lawyer is lacking.
Once a suspect has appeared before a magistrate, he or she may
be detained only if the magistrate issues a writ of detention,
valid for 14 days and renewable every 14 days thereafter.
Observance of these procedures has been uneven, but police
officers exceeding their detention authority have been
administratively punished or sued successfully in civil actions.
These restrictions on detention do not apply to illegal
immigrants (mostly Zimbabweans or Zambians). Hundreds of such
illegal immigrants are found in periodic sweeps by the police
and deported, although many are detained for periods ranging
from a few hours to over a year, pending deportation.
The Constitution allows the President to declare a foreigner a
"prohibited immigrant" (PI) and order deportation. This
provision was used in 20 or more cases in 1993. The law does
not require any explanation for declarations of PI status, nor
is any normally given. The order is not subject to judicial
review, although one controversial 1993 order expelling a
prominent businessman was rescinded by the President after
public protests. Further, no explanation or judicial review of
cancellation of residence permits for foreigners is required.
This method of expulsion also came under public fire in 1993,
resulting in presidential reversal of one such residence permit
revocation.
Persons charged under the National Security Act (NSA) must be
arraigned before a magistrate within 96 hours, and suspects may
be held indefinitely. However, this act has rarely been
invoked and was not used in 1993. Security cases are tried
under ordinary criminal procedures after an initial hearing.
e. Denial of Fair Public Trial
The judiciary is independent of the executive and legislative
branches of government in both law and practice. This was
reaffirmed in 1993 with the bribery conviction and sentencing
to jail of a prominent ruling party member of the National
Assembly. No instances of the courts being used to intimidate
or silence political dissent were reported.
In late 1993 no political prisoners were held in Botswana,
although migrants claiming refugee status were routinely
detained and deported without due process. In some cases,
refuge-seekers have been held without charge for over a year
even after the United Nations High Commission for Refugees
(UNHCR) determined that they met the legal criteria for refugee
status.
Botswana has two court systems, the civil courts and the
customary (traditional) courts. In the civil courts, a
defendant's right to due process is provided for by law and
largely honored in practice, although many defendants are not
informed of their rights in pretrial or trial proceedings.
Most trials are held in public and court records are public.
However, trials under the National Security Act may be held in
secret. As a rule, courts appoint public defenders only for
those charged with capital crimes (murder and treason);
lawyers in these cases serve on a pro bono basis. Thus, those
charged with noncapital crimes are often tried without legal
representation if they cannot afford an attorney. However,
defendants may in any case confront witnesses and present
evidence and are presumed innocent until proven guilty. There
are clearly defined appeal procedures, which are often employed.
Customary courts handle land, marital, and property disputes as
well as minor crimes but are open only to members of the given
tribe. No rules of evidence apply in these courts, and there
are no attorneys for either side. Tribal chiefs who preside
over the court do not have judicial training and have been
known to taunt defendants for confessions. Maximum punishment
is limited, and appeals are permitted.
f. Arbitrary Interference with Privacy, Family, Home, or
Correspondence
Privacy in family matters and correspondence is respected, and
there is no evidence of arbitrary surveillance of persons or
their communications.
Court-issued search warrants are required, but police officers
of the rank of sergeant and above may enter, search, and seize
property provided they believe "on reasonable grounds" that
criminal activity is involved and that evidence would be lost
or compromised by waiting for a warrant, and provided that the
evidence is later brought before a magistrate. In practice,
this means that seizures of property are frequently made
without resort to search warrants. Evidence gained without a
warrant is admissible in court. Judges may and do disqualify
such evidence if it can be shown that it would not likely have
been compromised by taking the time to obtain a proper warrant.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
Freedom of speech and press are provided for in the
Constitution and respected in practice. Opposition viewpoints
and criticism of the Government are freely expressed in
Parliament and elsewhere.
The Botswana Press Agency (BOPA), Radio Botswana, and the Daily
News are all part of the Department of Information and
Broadcasting. Each is independent of the other two, although
Radio Botswana and the Daily News get the majority of their
news stories from BOPA. Both the Daily News and Radio Botswana
are run with a modest degree of autonomy. The Daily News, made
available free of charge, consists largely of reports of
speeches of ministers and other high officials and
international wire service stories. In addition, there are
four independent weeklies which frequently disagree with or
criticize senior officials. These papers have reported
incidents of fraud and misconduct, which led to resignations
and prosecutions of prominent political figures. While
opposition parties' activities receive press coverage, the
Government media gives more space to ruling party viewpoints.
The independent press is more evenhanded and publishes a wide
variety of opinions and features.
In the past, the Government clashed with the independent press
over the proper reporting of national security issues. In 1993
the Government prevented the media from fully covering National
Police Day celebrations, claiming that the restriction was
required for logistical reasons.
Individual ministers and members of Parliament have brought
suits against critical independent media, and in late 1993 a
case was still pending against one paper for publishing
allegedly secret documents regarding internal government
deliberations in worker grievance cases. Books and
publications are not censored. Academic freedom is fully
respected. Although a law was passed in 1990 authorizing
restrictions on certain kinds of student protests, such
restrictions have never been imposed.
b. Freedom of Peaceful Assembly and Association
Botswana has a long history of peaceful assembly which is
integral to traditional village life and is exemplified in the
village meeting, the Kgotla. During Kgotla meetings, men
freely question leaders and voice opinions on local and
national politics. Traditionally, women do not speak out at
Kgotlas and are discouraged from expressing their opinions.
Permits are required for public meetings and demonstrations and
are usually granted if the police believe public order will not
be threatened.
c. Freedom of Religion
Freedom of religion is guaranteed by law. There is no state
religion, and while the majority of the population is
Christian, many other faiths are practiced freely. No
restrictions are put on places of worship, the training of
members of the clergy, religious publishing, religious
education, conversion, or participation in charitable
activity. Restrictions were not placed on missionaries or
foreign clergy during 1993.
d. Freedom of Movement Within the Country, Foreign
Travel, Emigration, and Repatriation
Botswana has no restrictions on movement within the country,
foreign travel, emigration, or the right to return. Passports
are easily obtained by citizens and are valid for 10 years.
Refugees documented by the UNHCR are readily accepted into
Botswana but are normally required to live in the refugee
settlement at Dukwe in the northeast, although the Government
may authorize them to live elsewhere. Refugees currently in
Botswana number about 700. South Africans continued to be
processed as refugees in 1993, but displaced persons arriving
from more distant east and central African countries were
frequently detained as illegal immigrants and not referred to
the UNHCR for possible determination of refugee status.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Botswana citizens have the right to change their government
peacefully through democratic means, although in practice one
party, the BDP, has dominated Parliament since independence 27
years ago. Members of Parliament are elected by secret ballot
and universal suffrage of citizens 21 years of age and older;
the President is elected by the Parliament. In the National
Assembly, 34 of the 38 members are elected every 5 years; the
remaining 4 are appointed by the President. In the 1989
elections, the BDP won 31 of the 34 elected seats.
Parliamentary debate is vigorous, and government policies are
freely criticized as each proposed bill goes through three
readings. Members of Parliament frequently demand that
ministers define and defend their departments' policies and
performance. New parties are freely formed. Of the eight
active political parties, only two, the BDP and Botswana
National Front (BNF), are represented in Parliament.
The leading opposition party, the BNF, threatened to boycott
the 1994 elections if the BDP did not agree to certain
electoral reforms to reduce what they saw as built-in
advantages of incumbency. Although the opposition received
more than 25 percent of the national vote in 1989, it won only
3 seats in Parliament. Opposition parties complain that
election administration is partisan and that the BDP uses
appointed seats to district and town councils to undo hard-won
opposition victories in local elections.
The political rights of women and minorities are not restricted
by law, but traditional patriarchal society has discouraged
women from taking part in politics. Yet, women vote in greater
numbers than men, and the number of positions, including senior
posts, held by women in various institutions is increasing.
Women hold seats in local and district councils, and two women
are in Parliament; one of them is the Minister of Foreign
Affairs. Groups living a nomadic life style in remote areas
have difficulty participating in the political process and are
poorly represented in politics (see Section 5).
Section 4 Governmental Attitude Regarding International and
Nongovernmental Investigation of Alleged Violations
of Human Rights
Local human rights groups operate openly and independently.
The Botswana Association for Human Rights aims to focus
national attention on needed legal reforms, to make
recommendations to the National Law Reform Committee, to
heighten public awareness about human rights, and to pressure
the Government to ratify more of the international human rights
instruments. Independent organizations dealing with the rights
of women, the handicapped, and rural dwellers are also active.
The Government also permits international organizations
involved in human rights and humanitarian affairs, including
the International Committee of the Red Cross, the United
Nations High Commission for Refugees, and the International
Labor Organization, to operate in Botswana. Amnesty
International (AI) reported in 1993 on mistreatment of
indigenous hunters apprehended for poaching in 1992 and earlier
years. The Government disputed AI's assertions and its
conclusion but did not obstruct the investigation.
Section 5 Discrimination Based on Race, Sex, Religion,
Disability, Language, or Social Status
Women
The Constitution and Penal Code forbid discrimination based on
color, race, nationality, or creed but do not mention
discrimination based on sex. Moreover, a number of laws and
customs have the effect of restricting social and economic
opportunities for women. For example, women married "in common
property" become legal minors and, without their husbands'
consent, may not purchase or sell property, gain access to
credit, or make other legally binding agreements. While a
woman may enter a binding transaction as a public trader, she
may become a trader only with her husband's consent. Marriage
license applications are increasingly accompanied by
explanations of marriage "out of common property" under which a
woman retains the property she brings to a marriage as well as
full adult legal standing after marriage. Although frowned
upon by more traditional families, these marriages are
increasingly common. Under customary law a husband may have
additional wives after consulting with his first wife and the
families, although this practice is dying out.
A woman is required to obtain her husband's permission for
operations to prevent conception. Abortion is allowed in cases
of rape or incest and when the physical or mental health of a
mother is threatened, or when a child will suffer grave
physical or mental abnormalities. Two physicians must agree
that the health of the mother is threatened, or that the child
will have severe abnormalities. If the health of a married
couple's child is at risk, or the mother is an unwed minor,
abortion is a family decision. A married woman must get her
husband's consent to abort a child if he is the father and the
unborn child's health, not the mother's, is in question. An
unmarried minor seeking an abortion requires the parents'
concurrence.
The Attorney General maintains that women have no legal
recourse in sex discrimination cases. However, a recent case
attracting international attention (Dow vs. State) sucessfully
challenged the Citizenship Act, arguing that the law
discriminated by preventing a woman from transmitting Botswana
citizenship to her children. The ruling, upheld by the High
Court in 1992, means the Citizenship Law must be rewritten. At
year's end the reform of Botswana's citizenship transmission
laws was still under discussion within the Government. No
decision had been made to hold a referendum on the issue or
attempt to amend the Constitution. Inheritance laws and
customs call for each child, regardless of sex, to receive a
share of an estate. The oldest male child receives a larger
share but is responsible for his widowed mother and minor
siblings.
Violence against women, including rape, is a growing problem.
Police statistics indicate that 172 women died between 1990 and
1992 as a result of domestic violence. In 1989 and 1990 alone,
1,000 women reported being victims of battery. Men have
traditionally had the right to "chastise" their wives, and wife
beating involving bruising to face and body is still accepted.
No support groups or shelters for battered women exist.
However, a legal center in Mochudi provides legal services and
counseling to victims of violence. Most women are reluctant to
report cases of assault because they fear their husbands will
be publicly reprimanded. The parents of a couple are expected
to help reconcile any differences, with the consequence that
police are unwilling to intervene. In serious cases, however,
a woman must file a police report before being admitted to a
hospital for treatment of injuries resulting from assault and
battery. The maximum penalty for a convicted rapist is life
imprisonment with mandatory corporal punishment; the average
sentence is 4 years with corporal punishment. A few
traditional doctors still perform a type of female circumcision
on rare occasions.
Agricultural labor is shared, with men generally responsible
for plowing, planting, and assisting with the harvest. Women
traditionally weed farm plots and protect them from birds,
cattle, and other animals. Cattle herding, the most important
pastoral activity in Botswana society, is a male
responsibility. Women are responsible for household
management, including child rearing, budgeting, and allocating
tasks to other female relatives. Urban women with modern
skills and education appear to have entry-level opportunities
nearly equal to men, but women's access dwindles sharply in the
higher echelons of business and public service. Urban women
without such skills are generally relegated to low-paying
service jobs. Concerted government action to improve the
status of women has been limited, but there is no evidence of
particular jobs being reserved for men. Women are increasingly
visible in the professions and commerce and as laborers. The
number of women's organizations is growing. The most active
group is Emang Basadi, which seeks to educate women about their
rights, argues for the enforcement of fathers' obligations to
support their children, and advocates day-care in institutions
like the National University and banks which employ large
numbers of women. In addition, numerous local women's groups
are organized for self-help.
Children
Children's rights are addressed in the 1981 Children's Act,
which mandates a separate judicial process for juveniles,
compulsory schooling until age 13, and the legal obligation of
both parents to care for their children (including those born
out of wedlock). The employment section of the act prohibits
children from heavy lifting and any participation in industrial
labor or nighttime employment.
National/Racial/Ethnic Minorities
The Tswana majority, made up of eight principal tribes, has a
tradition of peacefully coexisting with "minor" tribes, chief
among which are the Kalanga, who constitute 25 percent of the
population. Each of the Tswana tribes is represented in the
House of Chiefs while other groups are only allowed a subchief,
who is not a member of the House. Although ethnic rivalries
are not entirely absent, no ethnic groups suffer from direct
discrimination. The most prominent complaint concerns the
Government's refusal to allow school instruction in minority
languages, especially Ikalanga.
Groups living in remote areas, including the Kgalagadi and the
San (also called Basarwa or Bushmen), do not have full access
to government services and legal redress, partly because of
their distance from settled areas and their nomadic lifestyle.
They are poorly represented in politics and have few
opportunities for power, even at the local level. The
Government is revising controversial policies that limit remote
area dwellers' access to land and the ability of foreign
nongovernmental organizations (NGO's) to work with the San.
People with Disabilities
The Government does not discriminate on the basis of physical
handicaps, and, working with the NGO community, promotes
special education and training. A growing number of job
opportunities exist for the disabled in both the private and
public sectors, but opportunities do not match the number of
those in need. Public buildings and vehicles can rarely
accomodate wheelchairs, although a handful of newer buildings
in the Gaborone area offer ramps and elevators. Those features
are not, however, the result of legislation.
Section 6 Worker Rights
a. The Right of Association
Workers, except for civil servants, have the legal right to
establish or join trade unions. These government workers may
form associations that function as quasi-unions but lack the
right to negotiate wages. Unions are well developed in the
mining, railways, and banking sectors, as well as among
government blue-collar workers. There is one major
confederation of trade unions, the Botswana Federation of Trade
Unions (BFTU). Trade unions are independent of government
control or party affiliation and actively seek to represent
their members' interests. 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' effectiveness and has been criticized by
the International Confederation of Free Trade Unions (ICFTU),
with which the BFTU is affiliated.
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 has been legal. No significant strikes took place in
1993.
Unions may join international organizations, and labor
representatives regularly attend international conferences.
The Minister of Labor must approve any affiliation with an
outside labor movement, but unions may now appeal to the courts
if an application to join or form an amalgamation is refused.
Union officials and members may receive foreign scholarships
and travel expenses without government permission.
b. The Right to Organize and Bargain Collectively
Although employers are required under the Trade Union Act to
bargain with any trade union that organizes at least 25 percent
of the work force in a given industry, in practice, a union's
ability to bring employers to the bargaining table depends on
its overall strength. Collective bargaining is common in the
mining sector, where trade unions are strong, but is virtually
nonexistent in most other sectors.
Public sector salary levels set under the Government's incomes
policy used to serve as a benchmark for private sector wages,
but that policy was voided by Parliament in 1990. Since then,
private sector pay raises and inflation indexing must be
negotiated directly with employers.
Dismissals may be appealed to labor officers or civil courts,
but labor officers rarely do more than order 2 months'
severance pay.
Workers cannot be fired or suspended for legal union-related
activities, and any person who has been dismissed would have
the right to demand reinstatment. The Government itself fired
a handful of union activists in 1992 but did so on other legal
grounds.
Labor law and practice in Botswana's only export processing
zone, in Selebi-Phikwe, are the same as in the rest of the
country.
c. Prohibition of Forced or Compulsory Labor
Neither forced nor compulsory labor is practiced, and both are
specifically forbidden by the Constitution.
d. Minimum Age for Employment of Children
Although education is not compulsory, it is almost universally
available, and most children attend school at least through the
seventh grade. The Government is rapidly making 9 years of
free public education universally available. The employment of
children under age 13 by anyone except members of the child's
immediate family is strictly prohibited. No juvenile under the
age of 15 may be employed in any industry, and only persons
over 16 may be employed in night work. No person 16 or younger
is permitted to work in hazardous jobs, including mining. In
addition, young people may not be recruited for jobs outside
the country. The hours and working conditions of children in
the informal sector, particularly in rural areas, are difficult
to assess. Such employment is almost always in family
enterprises or on family farms, in which case juvenile labor
laws do not apply. There were no reported cases of formal
sector employers violating these statutes in 1993. The
Department of Labor is insufficiently staffed to enforce
compliance by small enterprises.
e. Acceptable Conditions of Work
As of April 1993, the minimum monthly wage was $100 (pula
237). The Central Statistics Office calculated a minimum
monthly wage of $210 (pula 500) was required to provide food,
clothing, and transport for a family of five. The minimum wage
generally varies by industry, but in most cases, workers must
supplement it with a second job or subsistence farming. Most
families have more than one wage earner. An average salary for
a better paid worker would be between $400 and $700.
The minimum wage is legislated by the Government and is
enforced and observed in urban areas for citizens of Botswana.
Adherence is more sketchy in the pastoral sector, especially
where housing and food are part of the employer-employee
agreement. Citizens of neighboring states, notably Zimbabwe,
are frequently employed in the domestic service sector, where
many work for low wages and in substandard living conditions.
Such illegal migrants would be subject to arbitrary deportation
if they attempted to take their cases to the police, making
them particularly vulnerable to exploitation.
The law mandates a maximum 48-hour workweek with provisions for
overtime pay (time and a half) for more than 48 hours. Most
major employers use the standard workweek, but some smaller
firms do not pay overtime, and action is seldom taken against
them.
The Government establishes basic health and safety standards to
which most industries adhere, although compliance by
construction firms is sometimes lax. Nevertheless, industrial
accident rates are not high on the whole. Though the
Government employs a corps of safety and health inspectors,
enforcement of safety standards, a shared responsibility of the
Ministries of Labor, Mines, and Health, is hampered by
inadequate staffing. Workers who complain about hazardous
conditions are legally protected from dismissal, but
enforcement of this protection has been uneven. (###)
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