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DO THE CRIMINAL LAWS OF BOTSWANA ADEQUATELY PROTECT VULNERABLE PEOPLE? PART 1


Before zeroing in attention on the above issue I need to make a public confession as a way of clearing my own conscience, once and for all, and allowing it to rest:
On my first day in Botswana I had the privilege to board the same bus with a beauty Queen. The lady’s attention-grabbing, eye-catching, hypnotic and mouth-watering waistline was flattery aside, indeed a marvel to watch.

Coupled with that, her skin –tight outfit was hugging her velvet body in such a way that we could enumerate all the contours of her guitar-shaped waistline.  All and sundry on the bus were left gaping in painful admiration save for people of her own sex who were green with envy. In fact I always run short of the most descriptive superlatives to lay bare her physical attributes but all I can say is that she was like an angel prancing the corridors of heaven. As I was swept off my feet, I donated my heart and in no time we were head over heels in love.

When she reached her destination we both disembarked from the bus and headed for her mansion. Of course we had a nice moment together. At around 12 midnight the lady started manifesting some worrisome behavioral tendencies such as laughing in a weird fashion, leaking my hair and eating stray pieces of paper which were litteredstrewn all over the floor. I trembled like a badly prepared examination candidate before a statistics exam and my heart was threatening to rip open the ribcage .The noise alerted some neighboring women who rushed to the scene  ,carrying pots and all sorts of cooking utensils, and attacking me for having had a carnal knowledge of an insane person. They effected a citizen’s arrest and I was taken to Bontleng police station for incarceration.

A month down the line I was dragged to court for trial. Luckily, I proved that on a balance of probabilities the lady had been normal on the day in question as she was talking a lot of sense on the bus. My  own witnesses ,who also  included the bus conductor ,convinced the honorable court that the facts were so(as I presented them).It was on that day that I  ,for the first time ,came across the Latin term ‘lucidum intevellum’.I managed to escape liability through that technicality!.

The above is a classic case in which vulnerable people can be taken advantage of and the law does not seem to protect them. This paper will concentrate on the plight of the women, the  youthful  and the mentally challenged or retarded, with reference to the kind of protection afforded them by the criminal laws of Botswana  and Zimbabwe ,respectively, as contained in the two countries’ penal codes. First, it is submitted that their local laws are superb but, just like any other product of human creation, they are neither God-given, water-proof nor stamped with God‘s seal of approval. Which is why even the old Testament Mosaic laws(Genesis ,Exodus ,Leviticus ,Numbers and Deuteronomy) ,which the Almighty Himself prepared ,had to be revised(amended) by Jesus   Christ through the New law(Matthew 5:21 to7:1-12). Again it must be pointed out that the effectiveness of a legal system does not lie in its crafting but its enforcement. As such, a country might have all the best laws imaginable in the world but if the implementation is faulty it amounts to naught!.

In a bid to explore this topic in detail this presentation will be in different segments, parts 1 and  2.Part 1 deals with the codified nature of our criminal laws and also deals with the plight of the mentally challenged. Part 2 handles the youthful and the protection afforded to women, with specific reference to rape.

Probably our first weakness lies in the fact that our criminal laws are codified or written. The word ‘written’ is a technical one and means we have a single document, called the penal code that contains all the criminal laws of the country. That is far from being our most grievous fault!.Instead it lies in the fact that anything not contained in the penal code as a crime cannot be criminalized and , as such ,an ‘alleged offender’ cannot be punished even if he made the most heinous and hair-raising misconducts of them all.

We call this phenomenon the principle of legality and it is rooted in the following fundamental  pillars: the ius acceptum rule(where there is no legal provision there is no crime) ,the ius certum rule (crime creating provisions must be crystal clear),the ius praevium rule (crime does not have retrospective effects),the ius strictum rule(courts must interpret crime creating provisions strictly)  and the nulla poena sine lege(when imposing punishment the courts must take due regard the other afore-mentioned elements). See the first part of section 10:8 of the Botswana constitution.

The ius acceptum rule, in particular, which we shall also discuss in passing, features on section 3 of the Botswana   penal code Chapter 08:01 which reads
‘Subject to the proviso to section 10(8) of the constitution, no person shall be liable to punishment by the common law for any act’. This version is in line with the same section, section 3, of the Zimbabwean Criminal Reform and Codification Act 9:23 of December 2004 in that the common law is expressly excluded.

However ,in the case of Zimbabwe the common law does not apply  only ‘to the extent that this code (penal code) expressly or impliedly enacts ,amends ,modifies or repeals that law’.(section 3:1).Moreover , 3:2 provides that there is nothing that would stop the court ,when interpreting this code ,from obtaining guidance from judicial decisions and legal writings on relevant aspects of this Roman –Dutch law or the legal systems of other countries. In the case of Zimbabwe, therefore, this exclusion is not automatic but qualified! And that naturally follows that the dark side of codified criminal laws can be felt more in the former than latter country.

Accordingly, if there is no legal provision in the penal code one cannot be convicted of a crime even if his conduct is wrong from a moral standpoint .Which is why in an unreported case at Molepolole some men found in possession of human parts could not be convicted of a crime because the penal code is silent about that conduct. Having said that ,perpetrators of ‘wrongs’ against other people ,including  the vulnerable  such as the mentally handicapped or challenged and the youthful cannot, by extension, be punished and that is a gross miscarriage of justice!.The Zimbabwean judges, in sharp contrast, would have fallen back on the common law in handling the Molepolole case, for example.

According to section 10 of the Botswana penal code every person is presumed to be of sound mind ,and to have been of sound mind at any time which comes in question ,until the contrary is proved” and section 11 provides that he can only escape liability ,if because of that mental illness ,he was without the criminal capacity. This section leads us to the emotive provision pertaining to the defilement of imbeciles, idiots and the insane. For the purposes of this article we shall focus on the insane only as the provision is very broad in scope.

Section 148 of the Botswana penal code is worded
 ‘any person who, knowing another person to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of that person under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person against whom the offence was committed was an idiot, is guilty and liable to imprisonment for a term not exceeding 14 years, with or without corporal punishment”.

The inclusion of the word ‘unlawful ‘before ‘carnal knowledge’ is not by accident but by design and to produce an intended effect. Impliedly there are instances when that intimacy may be admissible. In what circumstances could it be lawful to be intimate with such a person?. The concept ‘unlawful ‘, per se, means ‘without a ground of justification’ .A ground of justification is therefore a form of defense that is capable of making conduct that is ordinarily unlawful to become lawful eg consent, private defense, necessity, right of chastisement etc.

I have allowed my imagination to wonder and drewdeduced consent as a possible ground of justification in this context. This consent might have been obtained or given at a specific point in time, before and during the act, when the insane person was temporarily normal and this period is known in Latin as the Lucidum intevellum. (Remember the scenario in the introductory phase of this writing).In this case the idiot or the insane has not been exploited or taken advantage of since he was is in full control of his mental faculties  and denying him inalienable  natural rights such as intimacy  or freedom of association would actually be punitive to him. Surely it will be a case of unfair discrimination and therefore unconstitutional.

Alternatively, it might apply within a marriage institution in which the currently mentally ill spouse was initially of sound mind but developed that condition after marriage. Accordingly they cannot abstain given that consortium Omni vitae are one of the invariable consequences of a marriage. Yes, it is submitted that such a marriage is voidable, and not void ab initio, at the instance of the aggrieved party, who in this case is the normal person who has the option to either stay put and endure or chicken out.

The major flaw of that provision is the inclusion of the term ‘knowingly ‘in that crime. To make matters worse, the interpretation section does not help much in defining the word ‘knowingly’ as section 2(1)(b) reads

‘Knowingly used in connection with any term denoting uttering or using, implies knowledge of the character of the thing uttered or used’
 

Of course, it is an integral part of intention and intention refers to ‘knowledge plus the will’ .This ‘knowledge’ is of the act itself and that the act is unlawful. In this context the alleged offender would need to know that he is being intimate with an imbecile or the insane (the act) and that this intimacy is unlawful (knowledge of unlawfulness).The ‘will’ refers to the wish, desire or want.

Assuming that the legislators had in mind the concept intention the problem is that anyone can easily claim that he was not aware of the fact that the person under debate had such defects. Worse still, the subjective test, used to gauge the existence or otherwise of intention, as I see it, and I am sure lawyers would testify, is arguably the most difficult one. Intention can be direct (dolus directus),indirect(dolus indirectus)or in the form of the dolus eventualis.

Suppose one did not know but was negligent in   failing to know in circumstances in which a normal person, in his own circumstances, would have known that the victim was an idiot or insane?

Would he escape liability? If liable what crime would that be?.It must be borne in mind that the mens rea for the crimes of rape and defilement is intention and not negligence. The Latin concept   ‘mens rea’ means having a guiltyblameworthy state of mind and this can find expression in either dolus (intention) or culpa (negligence).

The punitive measure, for that offence, according to the Botswana criminal laws, is not deterrent enough as the maximum period of imprisonment is 14 years, with or without corporal punishment.

The concluding remark is that flaws which are inherent in our criminal laws need to be amended if they are to adequately protect vulnerable members of our communities. It has also been noted that our criminal laws have very strong points also and these strong areas by far outweigh the weak points.
 

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Botswana to Become a Vaccinated Nation: Pandemic Anxiety Over?

30th March 2021

OSCAR MOTSUMI

This is a question that should seriously exercise the mind of every Botswana citizen and every science researcher, every health worker and every political leader political.

The Covid-19 currently defines our lives and poses a direct threat to every aspect and every part of national safety, security and general well-being. This disease has become a normative part of human life throughout the world.

The first part of the struggle against the murderous depredation of this disease was to protect personal life through restrictive health injunctions and protocols; the worst possibly being human isolation and masks that hid our sorrows and lamentations through thin veils. We suffered that humiliation with grace and I believe as a nation we did a great job.

Now the vaccines are here, ushering us into the second phase of this war against the plague; and we are asking ourselves, is this science-driven fight against Covid-19 spell the end of pandemic anxiety? Is the health nightmare coming to an end? What happy lives lie ahead? Is this the time for celebration or caution? As the Non State Actors, we have being struggling with these questions for months.

We have published our thoughts and feelings, and our research reviews and thorough reading of both the local and international impacts of this rampaging viral invasion in local newspapers and social media platforms.

More significantly, we have successfully organised workshops about the impact of the pandemic on society and the economy and the last workshop invited a panel of health experts, professionals, and public administers to advance this social dialogue as part of our commitment to the tripartite engagement we enjoy working with Government of Botswana, Civil Society and Development partners. These workshops are virtual and open to all Batswana, foreign diplomatic missions based in Gaborone, UN agencies located in Gaborone and international academic researchers and professional health experts and specialists.

The mark of Covid-19 on our nation is a painful one, a tragedy shared by the entire human race, but still a contextually painful experience. Our response is fraught with grave difficulties; limited resources, limited time, and the urgency to not only save lives but also avert economic ruin and a bleak future for all who survive. Several vaccines are already in the  market.

Parts of the world are already doing the best they can to trunk the pestilential march of this disease by rolling out mass-vaccinations campaigns that promise to evict this health menace and nightmare from their public lives. Botswana, like much of Africa, is still up in the disreputable, and, unenviable, preventative social melee of masked interactions, metered distances, contactless commerce.

We remain very much at the mercy of a marauding virus that daily runs amuck with earth shattering implications for the economy and human lives. And the battle against both infections and transmissions is proving to be difficult, in terms of finance, institutional capacities and resource mobilization. How are we prepared as government, and as citizens, to embrace the impending mass-vaccinations? What are the chances of us  succeeding at this last-ditch effort to defeat the virus? What are the most pressing obstacles?

Does the work of vaccines spell an end to the pandemic anxieties?

Our panellists addressed the current state of mass-vaccination preparedness at the Botswana national level. What resources are available? What are the financial, institutional and administrative operational challenges (costs and supply chains, delivery, distribution, administering the vaccine on time, surveillance and security of vaccines?) What is being done to overcome them, or what can be done to overcome them? What do public assessments of preparedness tell us at the local community levels? How strong is the political will and direction? How long can we expect the whole exercise to last? At what point should we start seeing tangible results of the mass-vaccination campaign?

They also addressed the challenges of the anticipated emerging Vaccinated Society. How to fight the myths of vaccines and the superstitions about histories of human immunizations? What exactly is being done to grow robust local confidence in the science of vaccinations and the vaccines themselves? More significantly, how to square these campaigns vis-vis personal rights, moral/religious obligations?

What messages are being sent out in these regards and how are Batswana responding? What about issues of justice and equality? Will we get the necessary vaccines to everyone who wants them? What is being done to ensure no deserving person is left behind?

They also addressed issues of health data. To accomplish this mass-vaccination campaign and do everything right we need accurate and complete data. Poor data already makes it very hard to just cope with the disease. What is being done to improve data for the mass-vaccination campaign? How is this data being collected, aggregated and prepared for real life situation/applications throughout Botswana in the coming campaign?

We know in America, for example, general reporting and treatment of health data at the beginning of vaccinations was so poor, so chaotic and so scattered mainstream newspapers like The Atlantic, Washington Post and the New York Times had to step in, working very closely with civil society organizations, to rescue the situation. What data-related issues are still problematic in Botswana?

To be specific, what kind of Covid-19 data is being taken now to ready the whole country for an effective and efficient mass-vaccination program?

Batswana must be made aware that the  end part of vaccination will just mark the beginning of a long journey to health recovery and national redemption; that in many ways Covid-19 vaccination is just another step toward the many efforts in abeyance to fight this health pandemic, the road ahead is still long and painful.

For this purpose, and to highlight the significance of this observation we tasked our panellists with  the arduous imperative of  analysing the impact of mass-vaccination on society and the economy alongside the pressing issues of post-Covid-19 national health surveillance and rehabilitation programs.

Research suggests the aftermath of Covid-19 vaccination is going to be just as difficult and uncertain world as the present reality in many ways, and that caution should prevail over celebration, at least for a long time. The disease itself is projected to linger around for some time after all these mass-vaccination campaigns unless an effort is made to vaccinate everyone to the last reported case, every nation succeeds beyond herd immunity, and cure is found for Covid-19 disease. Many people are going to continue in need of medications, psychological and psychiatric services and therapy.

Is Botswana ready for this long holdout? If not, what path should we take going into the future? The Second concern is , are we going to have a single, trusted national agency charged with the  mandate to set standards for our national health data system, now that we know how real bad pandemics can be, and the value of data in quickly responding to them and mitigating impact? Finally, what is being done to curate a short history of this pandemic? A national museum of health and medicine or a Public Health Institute  in Botswana is overdue.

If we are to create strong sets of data policies and data quality standards for fighting future health pandemics it is critical that they find ideological and moral foundations in the artistic imagery and photography of the present human experience…context is essential to fighting such diseases, and to be prepared we must learn from every tragic health incident.

Our panellists answered most of these questions with distinguished intellectual clarity. We wish Batswana to join us in our second Mass-vaccination workshop.

*Oscar Motsumi: Email:oscar.motsumi@gmail.com

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The women you see in the news matter. Here’s why

9th March 2021
Jane Godia

Jane Godia

Today is International Women’s Day – it’s a moment to think about how much better our news diet could be if inequities were eliminated. In 1995, when the curtains fell in one of the largest meetings that have ever brought women together to discuss women in development, it was noted that women and media remain key to development.

Twenty-six years later, the relevant “Article J” of the Beijing Platform for Action, remains unfulfilled. Its two strategic objectives with regard to Women and Media have not been met. They are
Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication

Promote a balanced and non-stereotyped portrayal of women in the media.

Today, as we mark International Women’s Day, it’s an indictment on both media owners and civil society that women remain on the periphery of news-making. They cannot claim equal space in either the structures of newsrooms or in the content produced, be that as sources of news or as the subjects of reports. Indeed, the latest figures from WAN-IFRA’s Women in News Programme show just one in five voices in news belong to women*, be they as sources, as the author or as the main character of the news report.

Some progress was evident several years back, with stand-out women being named as chief executive officers, editors in chief, managing editors and executive editors. But these gains appear short lived in most media organisations. Excitement has turned to frustration as one-step forward has been replaced with three steps backwards. In Africa, the problem is acute. The decision-making tables of media organisations remain deprived of women and where there are women, they are surrounded by men.

Few women have followed in the footsteps of Esther Kamweru, the first woman managing editor in Kenya, and indeed sub-Saharan Africa. Today’s standout women editors include Pamela Makotsi-Sittoni (Nation Media Group, Kenya), Barbara Kaija (New Vision, Uganda), Mary Mbewe (Daily Nation, Zambia), Margaret Vuchiri (The Monitor, Uganda), Joyce Shebe (Clouds, Tanzania), Tryphinah Dongwana (Weekend Post, Botswana), Joyce Mhaville (Independent Television -ITV, Tanzania) and Tuma Abdallah (Standard Newspapers,Tanzania). But they remain an exception.

The lack of balance between women and men at the table of decision making has a rollback effect on the content that is produced. A table dominated by men typically makes decisions that benefit men.

So today, International Women’s Day is a grim reminder that things are not rosy in the news business. Achieving gender balance in news and in the structure of media organisations remains a challenge. Unmet, it sees more than half of the population in our countries suffer the consequences of bias, discrimination and sexism.

The business of ignoring the other half of the population can no longer be treated as normal. It’s time that media leaders grasp the challenge, not only because it is the right thing to do, but because it also makes a whole lot of business sense: start covering women, give them space and a voice in news-making and propel them to all levels of decision making within your organisation.

We can no longer afford to imagine that it’s only men who make and sell the news and bring in the shillings to fund the media business. Women too are worthy newsmakers. In all of our societies, there are women holding decision making positions and who are now experts in once male-only domains such as engineers, doctors, scientists and researchers.

They can be deliberately picked out to share their perspectives and expertise and bring balance to the profile of experts quoted on our news pages. Media is the prism through which society sees itself and women are an untapped audience. So, as we celebrate International Women’s Day, let us embrace diversity, which yields better news content and business products, and in so doing eliminate sexism. We know that actions and attitudes that discriminate against people based on their gender is bad for business.

As media, the challenge is ours. We need to consciously embrace and reach the commitments made 26 years ago when the Beijing Platform for Action was signed globally. As the news consuming public, you have a role to play too. Hold your news organization to account and make sure they deliver balanced news that reflects the voices of all of society.

Jane Godia is a gender development and media expert who serves as the Africa Director of Women in News programme.  
WOMEN IN NEWS is WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org

Jane Godia, Director, Africa, Women in News

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Opinions

Why is the media so afraid to talk about sexual harassment?

9th March 2021

MELANIE WALKER

The eve of International Women’s Day presents an opportunity for us to think about gender equality and the long and often frustrating march toward societies that are truly equal.

As media, we are uniquely placed to drive forward this reflection and discussion. But while focusing on the challenges of gender in society, we owe it to our staff and the communities we serve to also take a hard look at the obstacles within our own organisations.

I’m talking specifically about the scourge of sexual harassment. It’s likely to have happened in your newsroom. It has likely happened to a member of your team. It happens to all genders but is disproportionately directed at women. It happens in every industry, regardless of country, culture or context. This is because sexual harassment is driven by power, not sex. Wherever you have imbalances in power, you have individuals who are at risk of sexual harassment, and those who abuse this power.

I’ve been sexually harassed. The many journalists and editors, friends and family members who I have spoken to over the years on this subject have also been harassed. Yet it is still hard for leaders to recognize that this could be happening within their newsrooms and boardrooms. Why does it continue to be such a taboo?

Counting the cost of sexual harassment

Sexual harassment is, simply put, bad for business. It can harm your corporate reputation. It is a drain on the productivity of staff and managers. Maintaining and building trust in your brand is an absolute imperative for media organisations globally. If and when a case gets out of control or is badly handled – this can directly impact your bottom line.

It is for this reason that WAN-IFRA Women in News has put eliminating sexual harassment as a top priority in our work around gender equality in the media sector. This might seem at odds with the current climate where social interactions are fewer and remote work scenarios are in place in many newsrooms and businesses. But one only needs to tune into the news to know that the abuse of power, manifested as verbal, physical or online harassment, is alive and well.

Preliminary results from an ongoing Women in News research study into the issue of sexual harassment polling hundreds of journalists in Sub-Saharan Africa and Southeast Asia indicate that more than 1 in 3 women media professionals have been physically harassed, and just under 50% have been verbally harassed. Just over 15% of men in African newsrooms reported being physically harassed, and slightly less than 1 in 4 reports being verbally harassed. The numbers for male media professionals in Southeast Asia are slightly higher than a quarter on both forms of harassment.

The first step in confronting sexual harassment is to talk about it. We need to strip away the stigma and discomfort around having open conversations about what sexual harassment is and isn’t. Media managers, it is entirely in your power to create dynamics in your own teams that are free from sexual harassment.

Publishers and CEOs, you set the organisational culture in your media company.

By being vocal in recognising that it happens everywhere, and communicating to your employees that you will not tolerate sexual harassment of any kind, you send a powerful message to your teams, and publicly. With these actions, you will help us overcome the legacy of silence around this topic, and in doing so take an important first step to create media environments that truly embrace equality.

Melanie Walker is Executive Director of Media Development of the World Association of News Publishers (WAN-IFRA). She is a creator of Women in News, WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org

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