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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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