Country Report on Human Rights Practices for 1992
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 Quett Masire, who was reelected in 1989 for a second
5-year term. The President selects his Cabinet from members of the National
Assembly. While there are several active political parties in Botswana, in practice
the country's poUtics are dominated by the govermng Botswana Democratic Party
(BDP). Botswana's courts operate independently of both the legislative and executive
branches. All citizens, regardless of race, are free to participate in the political
and economic life of the country.
The Botswana Defense Force (BDF) numbers about 7,000 soldiers, and the Botswana
National Police (BNP) has about 3,000 members. Both the BDF and BNP are
subordinate to civilian authority. Total military expenditures for 1989, the last year
for which the U.S. Arms Control and Disarmament Agency conducted a detailed
analysis, were $62 million. Defense spending has iocreased as a result of the ongoing
construction of a modem, military air base at Molepolole but is expected to aecline
once the base is completed in 1994.
Botswana's economy is market oriented with strong encouragement for private enterprise.
Spurred by diamond revenues, the country's economy has expanded rapidly,
with growth in real gross domestic product (GDP) averaging about 9 percent
annually smce 1980. Since independence, per capita GDP has increased from $69
to the current figure of $2,500. 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 nercent of the population probably earning more than 60 percent of total income,
while the bottom 40 percent earns as little as 10 percent of the total.
Botswana's laws and le^al system provide for a broad range of individual rights
and freedoms which are widely observed in practice. However, women face legal and
traditional discrimination, and public consciousness of these problems and of violence
against women has only recently been awakened. Remote area dwellers and
groups not numbered among the eight "principal tribes" identified in the Constitution
do not enjoy full political rights or mil access to social services. There were a
few instances of game wardens beating suspects in their custody in 1992. Labor enjoys
the right to organize freely, although trade unions continue to face certain legal
restrictions. In 1992 the Government clashed with the independent press over ttie
publication of leaked government documents.
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 such killings.
b. Disappearance.
There have been no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
There were a few instances of game wardens heating suspects in 1992. Such incidents
are condemned by government officials, and officers found to have abused suspects
have been subjected to both internal discipUnaiy procedures and criminal
prosecution. In 1992 one warden was prosecuted but subsequently acquitted for lack
of sufficient evidence. The Government makes special efforts to protect women in
custody from rape and other abuse. Arrested women are immediately placed in the
charge of matrons, reducing the potential for mistreatment by male police officers.
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. Corporal punishment
for children below 14 is not allowed except under the rubric of 'traditional
punishment," meted out by parents or village headmen.
d. Arbitrary Arrest, Detention, or ExiZc—Citizens are protected from arbitraiy 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. An accused
may contact anyone of his or her choosing. In most cases, a suspect must be charged
before a magistrate within 48 hours of arrest. Bail is allowed, and detainees have
the right to nire attorneys of their choice. Poor communications in rural villages,
however, make it difficult for detainees to obtain legal assistance.
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. There have been credible complaints, including in 1992, that police
and rangers from the Department of Wildlife have used the difficulty of communications
and transport as an excuse to hold suspects longer than the prescribed 48
hours. In past years, offending police officers have been administratively punished
or sued successfully in civil actions.
These restrictions on detention do not apply to illegal inmiigrants (mostly
Zimbabweans or Zambians). The number of such inmiigrants rose sharply in 1992
due to severe drought in neighboring countries. Hundre
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.
Botswana's Constitution allows the President to declare a person a "prohibited immigrant"
and order deportation, but this provision was not used in 1992. No explanation
is required nor is any normally given, and the order is not subject to judicial
review. A prohibited immigrant may reenter Botswana only with presidential authorization.
Persons chai^ged 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 1992. Security cases are often tried
under ordinary criminal procedures after an initial hearing.
e. Denial of Fair Public Trial
Botswana's judiciary is independent of the executive
and legislative branches of government in both law ana practice. There has
never been any evidence of attempts to intimidate or apply undue pressure on
courts or judges, nor have there ever been reports of the courts being used to intimidate
or silence political dissent.
Botswana has two court systems, the regular courts and the customary (traditional)
courts. In the regular 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 puolic. 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, present evidence, ana 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. The tribal chief presides
over the court, and there are no attorneys for either side. Maximum punishment for
various crimes is limited by the Penal Code. There is a functional appeals process
also for traditional courts, including the possibility of appeal all the way to the High
Court.
No political detainees or prisoners were reported in Botswana in 1992.
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 oonmiunications. These ri^ts are safeguarded
by law.
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, that evidence would be lost
or compromised by waiting for a warrant, and 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 probably would not have been compromised by taking the time and trouble
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 (jovemment are freeW expressea, including in Parliament.
Although the Botswana Press Agency (BOPA) is part of the government Department
of Information and Broadcasting, both the Daily News and Radio Botswana
are run with some degree of autonomy. The Daily News, made available free of
charge, consists lai^gely of reports of speeches of ministers and other high officials
and international wire service stories. In addition, there are four independent
weeklies which have become increasingly aggressive in criticizing senior officials.
These papers were responsible for breaWng the story of likely fraud and malfeasance
in land allocation and in the National Housing Authority. While opposition
parties' activities receive press coverage, the (jovemment media tend to give more
space to ruling party viewpoints. The independent press gives far more space to opposition
viewpoints and puolishes a wide variety of features.
In the past, the (Jovemment has clashed witn the independent press over the reporting
and interpretation of national security issues. In mid- 1992 the Government
ordered the publisher of an independent paper to remove an issue from the racks
because a front-page photo of the President carried an obviously (and humorously)
incorrect caption. Individual ministers and Members of Parliament have threatened
suit against another independent paper which had criticized them, and the most vociferous
of the uidep>endent papers is being sued in the courts by the (Jovemment
for publishing what the (Jovemment insists is a secret document concerning policy
toward the grievances of workers then out on strike.
Books and publications are not censored. Academic freedom is fully respected, although
a recent law severely restricts the right of university students to conduct
certain kinds of protests on campus.
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, and in frequently held political rallies called
"freedom squares." During Kgotla meetings, men freely question leaders and voice
opinions on local and national politics. Traditionally, women do not speak out at
Kgotlas, but that seems to be changing slowly. Permits are required for public meetings
and demonstrations and are usually granted as long as 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, wnile the majority of the population is Christian, Hindus, Muslims,
and Baha'is also practice their faiths freely. There are no restrictions on places
of worship, the training of members of clergy, religious publishing, religious education,
conversion, or participation in charitable activity. There are no restrictions
against missionary or foreign clergy.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Botswana has no restrictions on movement within the country, on forei^
travel, emigration, or the right of a citizen to return. Pfissports are easily obtamed
by citizens and are valid for 10 years.
Refbgees documented by the United Nations High Commissioner for Refugees
(UNHCR) are readily accepted in Botswana but are normally required to live in the
refugee settlement at Dukwe, in northeastern Botswana, adthough the Government
may authorize them to live elsewhere. After the large scale repatriation of South
Africans in early 1992, the number of refugees in Botswana is down to about 300.
South Africans continued to be processed as refiigees in 1992, but displaced persons
arriving from more distant east and central African countries are frequently detained
as illegal immigrants and are not referred to the UNHCR for possible refugee
status.
Section 3. Respect for Political Rights: The Right of Citizens to Change Their Government
Botswana have the right to peacefiiUy change their government through democratic
means, although in practice one pajty, the Botswana Democratic Party (BDP),
has dominated Parliament and held the Presidency since independence. 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 elective 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 openly define and defend their depfutments'
policies and performance. New parties are freely formed. There are currently
eight active political parties, but only two, the BDP and the Botswana National
Front (BNF), are represented in Parliament.
Opposition parties have intensified their calls for electoral reforms to reduce what
they see as built-in advantages of incumbency. Although the opposition won more
than 25 percent of the national vote in 1989, it received only 3 seats in Parliament.
Opposition parties complain that constituencies are gerrymandered, that parties
other than the BDP must be given a role in the organization and conduct of elections,
and that the BDP uses appointed seats to district and town councils to undo
hard-won opposition victories in those 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 there are two women in Parliament, one of whom
is the Minister of External Affairs. There are several female senior lecturers atthe
university, but as yet few women holding professor's rank. Groups living nomadic
life-styles in remote areas have difficulty participating in the political process and
are poorly represented in politics (see Section 5).
Section 4. Government Attitude Toward International and Nongovernmental Investigation
ofAlleged Violations ofHuman Rights
Local human rights groups operate openly and independently. The Botswana Association
for Human Rights, organized in 1989, aims to focus national attention on
laws needing reform, to neighten public awareness about human rights, and to pressure
the Government to ratify more of the existing international human rights instruments.
Independent organizations dealing with the rights of women, the handicapped,
the well-being of homeless youths, and rural dwellers are also active.
The Government also permits international organizations involved in human
rights advocacy to operate in Botswana, including the International Committee of
the Red Cross, the UNHCR, and the Latemational Labor Organization. To date,
there have been no international investigations of human rights violations in Bot16
swana, but government representatives have stated that they would cooperate if
there were such an investigation.
Section 5. Discrimination Based on Race, Sex, Religion, Language, or Social Status
The Tswana majority, made up of the eight "principal" tribes, has a tradition of
peacefully coexisting with "minor* tribes, chief among which are the Kalanga, who
may constitute 25 percent of the population. Each of the Tswana tribes is represented
in the House of Chiefs while other groups are allowed onlv a subchief. ^-
thou^ ethnic rivalries are not entirely absent, no ethnic group suffers from serious
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 tne K^alagadi and the San (the
Bushmen), do not have full access to government services and legal redress, partly
because of their distance from settled areas and their nomadic ufestyle. They are
poorly represented in politics, but some have settled in villages and are gaining better
access to government services. Government policy on remote area dwellers was
under review at year's end.
The Constitution and Penal Code forbid discrimination based on color, race, nationality,
or creed but do not mention discrimination based on sex. Moreover, some
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 may not, without the husband's consent, purchfise or sell property or make
other legally binding agreements. While a woman mav enter a binding transaction
as a public trader, she may become a trader only with her husband's consent. Under
customary law a husband may have additional wives after consulting with his first
wife and the families, although this practice is dying out.
Marriage license applications are increasingly accompanied by explanations of
marriage "out of common property" under whiai a woman retains the property she
brings to a marriage as well as full adult legal standing after marriage.
A married woman is required to obtain her husband's permission for the use of
contraceptives or for operations to prevent conception. Abortion is tdlowed in cases
of rape, incest, when the physical or mental health of a mother is threatened, or
when the child is likely to suffer grave physical or mental 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. Otherwise, the law does not require consent of the husband
or father for an abortion.
The Attorney General maintains that, in general, women have no legal recourse
in sex discrimination cases. However, a female attorney successfully chaUen^d the
Citizenship Act, arguing that the law discriminated against her by preventmg her
from transmitting Botswana citizenship to her children. The ruling, upheld by the
High Court in 19i92, means the citizenship law must now be rewritten, and many
other laws may be affected.
Inheritance laws and customs call for each child to receive a share of an estate
regardless of sex. The oldest male child receives a larger share because he is responsible
for his widowed mother and minor siblings.
Domestic violence against women, induing rape, is on the increase as Botswana
society becomes increasingly urbanized. Men have traditionally had the right to
"chastise" their wives physically, although many now disapprove of the practice. The
police are reluctant to intervene in marital problems because they are considered
the family's business. Such problems are still frequently settled by the extended
family, with the majority of the cases of domestic violence brought to police attention
ultimately withdrawn at the family's request. While the maximum penalty for
a convicted rapist is life imprisonment with mandatoiy corporal punishment, the average
sentence is 4 years with corporal punishment. Female genital mutilation (circumcision)
is now rarely performed and only by a few traditional doctors.
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. There is a growing
number of women's oi^ganizations. The most active group is Emang Basadi,
which seeks to educate women about their rights, argues lor the enforcement of fathers'
obligations to support their children, and advocates day care in institutions
that employ large numbers of women, such as the national university and banks.
In addition, numerous local women's groups are organized for self-help.
Section 6. Worker Rights
a. The Right of Association
Workers have the legal right to establish or join
trade unions with the exception of pensionable government employees. These government
workers may form associations which function as quasi-unions but lack the
right to negotiate wages. Unions are well developed in mining, railways, banking,
and among government blue-collar workers. There is one major confederation of
trade unions, the Botswana Federation of Trade Unions (BFTU). Trade unions in
Botswana are independent of government control or party aflUiation and actively
seek to represent their members' interests. Unions may employ administrative staff,
but Botswana 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 afliliated.
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 past strikes has been legal. There were no strikes in 1992. The Government
Manual Workers Union, having unsuccessfully struck in late 1991 for a
large wage increase, is now claiming in a law suit that the Government reneged on
an agreement to grant the raise.
Unions freely join international organizations, and labor representatives regularly
attend international conferences. Aner extensive testimony from employers and
trade unions, the 1992 session of Parliament amended the Trade Union and Employers'
Organizations Act, rescinding the right of the Minister of Labor to have a
representative attend meetings of union decisionmaking bodies. The Minister must
stul 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 can now 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 woik 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 others.
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 have
had to be ne^tiated directly with employers. Although the law prohibits employers
from dismissmg workers for union activities, enforcement is uneven. Dismissals may
be appealed to labor officers or civil courts, but labor officers rarely do much more
than prescribe 2 months' severance pay.
Labor law and practice in Botswana's only export processing zone, in Selebi-
Phikwe, is the same as in the rest of the countiy.
c. Prohibition of Forced or Compulsory Labor
Neither forced nor compulsory
labor is practiced in Botswana, and both are specifically forbidden by the Constitution.
d. Minimum Age for Employment of Children
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
those over 16 may be employed in night work. No person 16 or younger is permitted
to work in any hazardous job, inclumng mining, m addition, young people may not
be recruited for jobs outside the country. Scattered violations of age standards occur
in small family firms and in the informal sector as the Department of Labor is insufficiently
staffed to enforce strict compliance by small enterprises. 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.
e. Acceptable Conditions of Work
Minimum monthly wages are established by
law for all but agricultural and domestic woikers. The levels vaiy by industiy and
the type of job and are enforced by the Ministry of Commerce and Industry. TTie
lowest minimum is barely adequate for one person to maintain a decent standard
of living in an urban environment. In most cases, workers must supplement this
with a second job or subsistence farming. Most families have more than one wage
earner.
The law mandates a maximum 48-hour workweek with provisions for overtime
pay (time and a half) after 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 job 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. Thou^ the Government
employs a corps of safety and health inspectors, enforcement of safety stand18
ards, which is a shared responsibility of the Ministries of Labor, Mines, and Health,
is hampered by inadequate stafling. While woricers who complain about hazardous
conditions are legally protected from dismissal, enforcement of this protection has
been uneven.
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