International NGOs shoot down Kgathi’s Penal Code amendments
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An international Civil Society Organisation, SRHR Africa Trust formerly known as Southern African Aids Trust (SAT) and Botswana Youth Hub has denounced the Minister of Defence, Justice and Security Shaw Kgathi’s amendment to the penal code to raise sexual consent age from 16 to 18 years. The amendments were passed by parliament recently.
When tabling the Penal Code Amendment Bill, 2018, seeking to align it with the Children’s Act by raising the legal age of maturity from 16 to 18 years, Kgathi stressed that the objective of the Bill is to address incidences of defilement and abuse of children, abduction, indecent assault, and kidnapping.
SRHR Africa Trust & Botswana Youth Hub from the outset denounced the law although they acknowledged that the spirit of the amendments, in particular amendments regarding the increase of the age of sexual consent to 18 years, was done in good faith – to protect children against sexual predators, who in majority of cases are elderly men abusing young girls.
The international Civil Society this week wrote to Members of Parliament (MPs) saying the Penal Code amendments would turn children having sexual activity amongst themselves into criminals. “Whereas the proposed law seeks to protect adolescents from sexual abuse, the unintended effect of the law would be to turn children into criminals as some adolescents between the ages of 16 and 18 are already engaged in consensual sexual activities, some among themselves and some with elderly partners,” SRHR Africa Trust Country Programme Director Thatayaone Gabositwe highlighted in the Bill amendments comments on the Penal Code (Botswana).
The bone of contention for SRGR Africa Trust is that the net effect is that adolescents may in the end be prosecuted and convicted for engaging in what they have previously been lawfully doing. They continue: “to nub this from happening, we strongly recommend that the law be left as it currently stands and have a provision that makes it unlawful for persons above the age of 18 years to have sex with adolescents who are below 16 years.” The NGO insists that in the alternative, the legislators may raise the age of consent to 18 years as proposed but then have a provision that makes sexual activity between children who are both under 18 years lawful.
According to the said Civil Society organizations, to ensure that there is no huge age difference, there should be a gap of a two year age difference to guard against situations where a 17 year 11 months person has sex with a 12 year old, but if a 12 year old has sex with a 14 year old, then no one should be prosecuted.
“Further to the above, it is submitted that the two years age difference be maintained even after the other partner attains the age of majority at 18 years and ceases to be a child, provided though that their sexual partner is still a minor and the said minor gives their consent,” the organizations pointed out.
The SRHR Africa Trust Country Programme Director added that, if one partner is 19 years old and the other is 17 years, (or in the event the age of consent is kept at 16, the one partner is 16 and the other one is 14 years) the older one should not be charged for defilement as the two would for all intents and purposes be peers and may have lawfully had sex before the proposed law came into being.
“In that way, we submit that the relationship cannot be classed as intergenerational and thus less risky for the child. We submit that leaving the age of consent at 16 and having provisos dealing with sexual activities between children and punishing sex between children and adults, we will be acting consistent with the Public Health Act.”
According to the organizations, they say so because the Public Health Act made it possible for adolescents aged 16 and above to access health services on their own without parental consent, and this was in realization of the fact that adolescents do engage in sex and they should therefore be free to access sexual reproductive health services without fearing either their parents or the law.
“Should the age of consent be increased to 18, this may therefore force children to go underground as they may fear the stigma arising from the law penalizing their sexual conduct. We will be inadvertently reversing the gains that we made as a nation in seeking to make universal access to reproductive health rights a reality, which has already proven to be problematic as it has been found that in reality, only 16 out of 335 public health facilities provide youth friendly services according to the United Nations Population Fund 6th Country Programme 2017-2021 Report,” the representative wrote in the MP’s note.
The NGOs state that the UNFPA found that in 2016 in Botswana, there were 6 drop outs out of 16 536 in pre-primary, 271 out of 315 261 in primary school, 1 194 out of 116 068 in junior secondary and 477 out of 57 203 in senior secondary due to teenage pregnancy. From the Bill Memorandum, Gabositwe said they acknowledge that government wishes to raise the age of sexual consent to 18 so that it is in harmony with the Children’s Act.
“But in terms of the Employment Act, section 105 (2), a 14 year old child may be employed to work under certain circumstances. 12.2. In terms of the Public Health Act, section 104 (1) (a) a 16 year old can test for HIV without parental assistance. 12.3. In terms of Police Rifle Association Act, section 7 (1), a 16 year old can join rifle associations and learn how to use firearms. 12.4. A 16 year old is eligible to obtain a license to operate as a barber, a street vendor and a hawker. 12.5. Service of court or legal documents can be made on a 16 year old. 12.6. A 16 year old can obtain a free balloon pilot license. 12.7. A 10 year old in terms of the Adoption of Children Act has the capacity to consent to his/ her adoption.”
The global trend, they posit, is to have the age of consent to sex at 16, and those Botswana children are no different from other children in various parts of the world like in the United States. “We trust that our representations will be considered and adopted for the benefit of our children for we would not like to see our children in prisons. Let the law deal with the unfit elders who sexually abuse our children using their power and purse,” they reiterated.
For more than 2 decades, SRHR Africa Trust has worked with and alongside communities, civil society organizations and networks to mobilize and strengthen their capacity to respond to the HIV epidemic and improve their sexual and reproductive health and rights (SRHR) in 6 East and Southern African countries including Botswana.
SAT has a strategic programmatic focus on women, girls, youth and adolescents coded "The Girl Plan" that seeks to address issues such as Child Marriage, Teenage pregnancy, Gender Based Violence, Keeping Girls in Safe Schools, increasing youth access to SRHR services and menstrual health.
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The curtain came down at the PAP session with pomp and FUNFAIR
It was pomp and funfair at the Pan-African Parliament (PAP) on March 18 as the African Cultural Music and Dance Association (ACUMDA) brought the curtains down on the PAP session with a musical performance.Â
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The occasion was the celebration of the Pan-African Parliament Day (PAP Day) which commemorated the inauguration of the first Parliament of the PAP on 18 March 2004 at the African Union Headquarters in Addis Ababa, Ethiopia.
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The celebrations took place at the seat of the Parliament in Midrand to “reflect on the journey” as the institution turns 19. The event sought to retrace the origin and context of the establishment of the PAP.
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The celebrations included musical performances by ACUMDA and a presentation by Prof. Motshekga Mathole of the Kara Heritage Institute on “Whither Pan-Africanism, African Culture, and Heritage.”
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The PAP Day was officially launched in 2021 to educate citizens about the Continental Parliament and ignite conversations about its future in line with its mandate.
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The establishment of the PAP among the AU organs signalled a historical milestone and the most important development in the strengthening of the AU institutional architecture. It laid solid groundwork for democratic governance and oversight within the African Union system and provided a formal “platform for the peoples of Africa to get involved in discussions and decision-making on issues affecting the continent.”
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The genesis of the PAP can be legally traced back to 1991 with the adoption of the Treaty Establishing the African Economic Community, adopted on June 3, 1991, in Abuja (also known as the Abuja Treaty). This treaty defined the pillars and grounds for realizing economic development and integration in Africa and called for the creation of a continental parliament, among a set of other organs, as tools for the realization of African integration and economic development. This call was reemphasized in the Sirte Declaration of 1999, which called for the accelerated implementation of the provisions of the Abuja Treaty.
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PAP celebrated its ten years of existence in March 2014, a year which coincided with the adoption, on June 27, 2014, in Malabo, Equatorial Guinea, of the Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament (PAP Malabo Protocol), which, once in force, will transform the PAP into a legislative body of the AU. It requires a minimum of 28 countries to ratify it before it comes into force.
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Therefore, the commemoration of PAP Day serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 19 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.
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The celebrations of PAP Day coincided with the closing ceremony of the sitting of the PAP Permanent Committees and other organs. The Sitting took place in Midrand, South Africa under the AU theme for 2023, “Accelerating the implementation of African Continental Free Trade Area (AfCFTA)” from 6 to 17 March 2023.
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PAP President, H.E. Chief Fortune Charumbira, expressed appreciation to members for their commitment during the two-week engagement.
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“We have come to the end of our program, and it is appropriate that we end on a high note with the PAP Day celebrations.Â
“We will, upon your return to your respective countries, ensure that the work achieved over the past two weeks is transmitted to the national level for the benefit of our citizens,” concluded H.E. Chief Charumbira.
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PAP needs to priorities land issues-Prof Mathole
Prof Motshekga Mathole of the Kara Heritage Institute has advised the Pan-African Parliament (PAP) to prioritise the land issue in the continent if they are to remain relevant.
He said this while addressing the Plenary during the commemoration of PAP Day held at the PAP Chambers in Midrand, South Africa
The PAP Day was officially launched in 2021 to commemorate the inauguration of the first Parliament on 18 March 2004 in Addis Ababa, Ethiopia. Intended as a platform for people of all African states to be involved in discussions and decision-making on problems and challenges facing the continent.
In a speech titled “Whither Pan-Africanism, African Culture, and Heritage,” Prof Mathole stated that for PAP to remain relevant, it must address the continent’s key land dilemma, which he feels is the core cause of all problems plaguing the continent
“If this Parliament is to be taken seriously, ownership of land and natural resources must be prioritized at the national and continental levels. Africans are not poor; they are impoverished by imperialist nations that continue to hold African land and natural resources,” said Prof Mathole.
“When African leaders took power from colonialists, they had to cope with poverty, unemployment, and other issues, but they ignored land issues. That is why Africa as a whole is poor today. Because our land and minerals are still in the hands of colonizers, Africa must rely on Ukraine for food and Europe for medical.”
Prof Mathole believes that the organization of the masses is critical as cultural revolution is the only solution to Africa’s most problems.
“We need a cultural revolution for Africa, and that revolution can only occur if the masses and people are organized. First, we need a council of African monarchs since they are the keepers of African arts, culture, and heritage. We need an African traditional health practitioners council because there is no ailment on the planet that cannot be healed by Africans; the only problem is that Africans do not harvest and process their own herbs,” he said.
Meanwhile, PAP President, H.E. Hon Chief Fortune Charumbira expressed satisfaction with the commitment displayed throughout the two-week period and said the PAP Day celebrations were befitting curtains down to the august event.
“On this high note of our two-week engagement, it is appropriate that we close our program on a high note with PAP celebrations, and I would like to thank everyone for your commitment, and please continue to be committed,” said H.E Hon Chief Charumbira.
PAP’s purpose as set out in Article 17 of the African Union Constitutive Act, is “to ensure the full participation of African people in the development and economic integration of the continent”. As it stands, the mandate of the Parliament extends to consultation and playing an advisory and oversight role for all AU organs pending the ratification protocol.
Also known as the Malabo Protocol, the Protocol to the consultative act of the AU relating to the PAP was adopted at the Assembly of Heads of State and Government summit in June 2014 and is intended to extend the powers of the PAP into a fully-fledged legislative organ. It requires a minimum of 28 countries to ratify it before it comes into force.
The commemoration of the PAP Day, therefore, serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 17 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.
The PAP Day commemoration also aims to educate citizens about the PAP and ignite conversations about the future of the continental Parliament in line with its mandate.
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DPP drops Kably threat to kill case
The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.
In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.
Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.
The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.
According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”
Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.
Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.
In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.
A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.
The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”