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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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Opinions

Internal party-democracy under pressure

21st June 2022

British novelist, W. Somerset Maugham once opined: “If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.”

The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties — ruling and opposition.

As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.

We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.

Former President, Festus Mogae once stated that Botswana’s democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.

Although many may not publicly care to admit, Mogae’s assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values.  This has been happening over the years now, and the situation is getting worse by the day.

Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in the Bulela Ditswe dispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.

Bulela Ditswe was an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.

Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.

We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties – ruling and opposition — have embraced this position and believe democracy is the hindrance to their political ambitions.

These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.

Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.

The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.

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Opinions

The Big Deal About Piracy

21st June 2022
piracy

Piracy of all kinds continues to have a massive impact on the global creative industry and the economies of the countries where it thrives.

One of the biggest misconceptions around piracy is that an individual consumer’s piracy activities, especially in a market the size of Botswana’s, is only a drop in the pool of potential losses to the different sectors of the economy piracy affects.

When someone sitting in Gaborone, Botswana logs onto an illegal site to download King Richard online, they don’t imagine that their one download will do anything to the production house’s pocket or make a dent in the actors’ net worth. At best, the sensitivity towards this illegal pirating activity likely only exists when contemplating going about pirating a local musician’s music or a short film produced locally.

The ripple effects of piracy at whatever scale reach far beyond what the average consumer could ever imagine. Figures released by software security and media technology company, Irdeto, show that users in five major African territories made approximately 17,4 million total visits to the top 10 identified piracy sites on the internet.

The economic impact of this on the creative industry alone soars to between 40 and 97.1 billion dollars, according a 2022 Dataprot study. In addition, they estimate that “illegally streamed copyrighted content consumes 24% of global bandwidth”.

As Botswana’s creative industry remains relatively slight on the scale of comparison to industries such as Nollywood and Nilewood where the creative industry contributes a huge proportion to West and East Africa’s respective GDPs, that does not imply that piracy activities in Botswana do not have a similar impact on our economy and the ability of our creative industry to grow.

When individuals make decisions to illegally consume content via internet streaming sites they believe they are saving money for themselves in the name of enjoying content they desire to consume. Although this is a personal choice that remains the prerogative of the consumer, looking beyond the fact that streaming on illegal content sites is piracy, the ripple effect of this decision also has an endless trail of impact where funds which could be used to grow the local creative industry through increased consumption, and revenue which would otherwise be fed back into Botswana’s economy are being diverted.

“Why can’t our local creative industry grow?” “Why don’t we see more home-grown films and shows in Botswana?” are questions constantly posed by those who consume television content in Botswana. The answer to this lies largely in the fact that Botswana’s local content needs an audience in order for it to grow. It needs support from government and entities which are in a position to fund and help the industry scale greater heights.

Any organisational body willing to support and grow the local creative industry needs to exist and operate in an economy which can support its mandates. Content piracy is a cycle that can only be alleviated when consumers make wiser decisions around what they consume and how.

This goes beyond eradicating piracy activities in so far as television content is concerned. This extends to the importation and trade in counterfeit goods, resale of goods and services not intended for resale across the border, outside its jurisdiction, and more. All of these activities stunt the growth of an economy and make it nearly impossible for industries and sectors to propel themselves to places where they can positively impact society and reinvest into the country’s economy.

So what can be done to turn the tide here in Botswana in order to see our local production houses gain the momentum required to produce more, license more and expand their horizons? While those who enforce the law continue to work towards minimizing piracy activities, it’s imperative that as consumers we work to make their efforts easier by being mindful of how our individual actions play a role in preventing the success of our local creative networks and our economy’s growth.

Whether you are pirating a Hollywood Blockbuster, illegally streaming a popular Motswana artist’s music, or smuggling in an illegal decoder to view content restricted to South Africa only, your actions have an impact on how we as a nation will make our mark on the global landscape with local creative productions. Thembi Legwaila is Corporate Affairs Manager, MultiChoice Botswana

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Opinions

Our Strength is our Unity

18th March 2022
Craig-Cloud

Putin Chose War.  We Remain United with Ukraine.

U.S. Ambassador Craig L. Cloud

This is a dangerous moment for Europe and for freedom-loving people around the world.  By launching his brutal assault on the people of Ukraine, Vladimir Putin has also committed an assault on the principles that uphold global peace and democracy.  But the people of Ukraine are resilient.

They’ve had a democracy for decades, and their bravery is inspiring the world.  The United States, together with our Allies and partners across the globe, will continue to support the Ukrainian people as they defend their country.  By choosing to pay for a war instead of investing in the needs of Russians, Putin’s invasion of Ukraine will be a strategic failure for the Kremlin and ravage the future of the Russian people.

When the history of this era is written, it will show that Putin’s choice to launch an unprovoked, unjust, and premeditated attack left the West more unified and Russia exponentially weaker.

United in Our Response

This will not end well for Vladimir Putin.  Together, the United States and our Allies and partners are taking action to hold Russia accountable.  As a result of unprecedented global sanctions coordination, the United States, the United Kingdom, the European Union, Japan, and Canada have removed selected Russian banks from the SWIFT messaging system and imposed restrictive measures on the Russian Central Bank.

President Biden announced sweeping financial sanctions and stringent export controls that will damage Russia’s economy, financial system, and access to cutting-edge technology.  After Putin began his invasion, the ruble hit its weakest point in history, and the Russian stock market plunged.

Along with the United Kingdom and European Union, the United States imposed sanctions on the architects of this war, including Putin himself.

By moving in close coordination with a powerful coalition of Allies and partners representing more than half of the global economy, we have magnified the impact of our actions to impose maximum costs on Putin and his regime.  In response to Putin’s war of choice, we will limit Russia’s ability to do business in U.S. dollars.

We will stunt Russia’s ability to finance and grow its military.  We will impair Russia’s ability to compete in the global economy.  And we are prepared to do more.

In addition to economic penalties, this week President Biden authorized an additional $1 billion over the $350 million of security assistance he recently approved, and a $650 million in 2021, to immediately help Ukraine defend itself, bringing America’s total security assistance to Ukraine over the past year to $2 billion.

We also stand ready to defend our NATO Allies.  President Biden has coordinated with Allied governments to position thousands of additional forces in Germany and Poland as part of our commitment to NATO’s collective defense.

He authorized the deployment of ground and air forces already stationed in Europe to NATO’s eastern and southeastern flanks:  Estonia, Latvia, Lithuania, Poland, and Romania.  Our Allies have also added their own forces and capabilities to ensure our collective defense.  There should be no doubt about the readiness of the greatest military Alliance in the history of the world:  NATO is more united than ever.

The United States has also coordinated with major oil-producing and consuming countries to underscore our common interest in securing global energy supplies.  We are working with energy companies to surge their capacity to supply energy to the market, particularly as prices increase.

Putin’s Unprovoked and Premeditated War

This was an attack that Vladimir Putin has planned for a long time.  He methodically moved more than 150,000 troops and military equipment to Ukraine’s border.  He moved blood supplies into position and built field hospitals, demonstrating his intentions all along.

He rejected every good-faith effort by the United States and our Allies and partners to address his fabricated security concerns and to avoid needless conflict and human suffering by engaging in diplomacy and dialogue.

Putin executed his playbook exactly as we had warned he would do.  We saw Russia’s proxies increase their shelling in the Donbas.  We saw the Russian government launch cyber-operations against Ukraine.  We saw staged political theater in Moscow and heard outlandish and baseless claims made about Ukraine in an attempt to justify Russia’s aggression.

Russia continues to justify its military aggression by falsely claiming the need to stop “genocide” in Ukraine – despite there being no evidence that genocide was occurring there.  We saw Russia use these tactics before when they invaded Ukraine in 2014 and Georgia in 2008.

And then, at almost the very same moment the United Nations Security Council was meeting to stand up for Ukraine’s sovereignty and forestall disaster, Putin launched his invasion in violation of international law.  Missiles began to rain down, striking historic cities across Ukraine.  Then came air raids, columns of tanks, and battalions of troops, all riding a renewed wave of disinformation and outright lies.

We have been transparent with the world.  We declassified our intelligence about Russia’s plans so there could be no confusion and no cover up.  Putin is the aggressor.  Putin chose this war.  And now his people will bear the consequences of his decision to invest in war rather than in them.

Transatlantic Unity and Resolve Stronger Than Ever

Putin’s goal of dividing the West has failed.  In the face of one of the most significant challenges to European security and democratic ideals since World War II, the United States and our Allies and partners have joined together in solidarity.  We have united, coordinating intensively to engage as one with Russia and Ukraine, provided assistance to Ukraine, developed a broad response, and reaffirmed our commitment to NATO.

Putin has failed to divide us.  Putin has failed to undermine our shared belief in the fundamental right of sovereign nations to choose their destiny and their allies.  And Putin will fail to erase the proud nation of Ukraine.

The next few days, weeks, and months will be incredibly difficult for the people of Ukraine.  Putin has unleashed great suffering on them.  But the Ukrainian people have known 30 years of independence, and they have repeatedly shown they will not tolerate anyone who tries to take their country backwards.

The world is watching this conflict closely, and if Russian forces commit atrocities, we will explore all international mechanisms that could be used to bring those responsible – whether members of the military or their civilian leadership – to account.

Putin’s aggression against Ukraine will cost Russia profoundly, both economically and strategically.  The Russian people deserve better from their government than the immense cost to their future that this invasion has precipitated.

Liberty, democracy, and human dignity are forces far more powerful than fear and oppression.  In the contest between democracy and autocracy, between sovereignty and subjugation, make no mistake:  Freedom will prevail.

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