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Gender equality in Botswana: the legal framework

On 5th March 2020, hundreds of Batswana women, led by the First Lady, Neo Masisi, joined the world in celebrating International Women’s Day.

The question is: has Botswana made significant strides towards gender equality twenty-five years after the Beijing Conference which was held in China under the theme ‘Action for Equality, Development and Peace’?

In this article, we make a review of gender equality in Botswana from the prism of the legal framework. We consider such aspects as land ownership rights; non-land property ownership rights; succession and inheritance rights; divorce petition rights; rights to independent travel; labour rights and citizenship rights. First, land ownership rights. Botswana has no law that deprives women, both married and unmarried, from owning land to the same extent that men do. Second, non-land property rights. Similarly, no law in Botswana accords one gender, even regarding married people married in or out of community of property, better rights over the other with respect to acquisition and/or ownership of non-land property.

My view in this regard is fortified by the Abolition of Marital Power Act 34 of 2004. Section 7 of the Abolition of Marital Power Act 34 of 2004 provides that “…, a husband and wife married in community of property shall have equal capacity to (a) dispose of the assets of the joint estate; (b) contract debts for which the joint estate is liable; and (c) administer the joint estate.
Also, subject to section 9 of the Abolition of Marital Power Act 34 of 2004, “…a spouse married in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse”.

Further, in terms of section 15(2) of the Abolition of Marital Power Act 34 of 2004 a spouse married out of community of property has a right of recourse against the other spouse in so far as he or she has contributed to the acquisition of property by that other. Third, succession and inheritance rights. The landmark case of Mmusi and Others v Ramantele and Another MAHLB-000836-10 has established the rights of women to inherit and, I opine, to succession in terms of family and tribal positions of authority.

The inheritance provision is in keeping with international best practice because as per the United Nations Entity for Gender Equality and the Empowerment of Women, “…legislation should prohibit discrimination against women and girls in inheritance and explicitly allow females to inherit property and land on an equal basis with males”. The succession provision is also in line with international best practice because as per the United Nations Entity for Gender Equality and the Empowerment of Women, “…laws governing lines of succession should ensure equality of rank between mothers and fathers, between brothers and sisters, between daughters and sons, and between spouses.

Even in statutory law, I am unaware of any statute that makes women’s rights to inherit less than those of their male counterparts. Hitherto the Mmusi case, the disparity was more to do with practice emanating from the unwritten customary law of some tribes, in that case the BaNgwaketse, and not codified statutory law passed the Legislature. Fourth, divorce petition rights. In terms of the High Court Act, CAP. 04:02, a married woman, just like a married man, can, as Plaintiff, commence divorce proceedings. Neither spouse needs assistance by the other or any other person to petition for divorce.

Not only that. When spouses divorce, each is entitled to half the share of the joint estate. Also, each is liable for half the liabilities of the joint estate. Further, each party has the same rights with respect to the custody, access and visitation of the minor children. Also, each party is liable for the maintenance of the minor children. Fifth, rights to independent travel. While Batswana women, especially married women before the passing of the Abolition of Marital Power Act 34 of 2005, suffered discrimination in many respects, they never suffered any legal restrictions in terms of independent travel.

Women, like men, have always enjoyed an almost unfettered constitutional right to the freedom of movement as enshrined in section 14 of the Constitution of the Republic of Botswana. Sixth, access to employment opportunities and benefits in the workplace. In terms of the Employment Act, CAP. 47:01, both men and women enjoy the same rights to employment. There is no law which legitimizes more pay for men than for women. Men and women are also equally entitled to such benefits in the workplace as rest periods, leave with pay, paid public holidays, paid sick leave, severance pay, e.t.c in terms of sections 93, 98, 99, 100 and 27 respectively of the Employment Act, CAP. 47:01.

In addition, women’s rights to absence from work in connection with confinement and maternity allowance; payment of maternity allowance; prohibition of termination of employment during maternity leave; and permission to nurse the child after returning to work are protected in terms of sections 113, 114, 115, 116, 117 and 118 respectively of the Employment Act, CAP. 47:01. In my view, the Employment Act, CAP. 47:01 is gender discriminatory to the extent it does not provide for paternity leave, payment of paternity allowance and prohibition of termination of employment during paternity leave.

Seventh, citizenship rights. In 1984 Botswana regressed significantly when the Legislature legislated against women passing on the right of citizenship to their children. In terms of the amended Citizenship Act, such right was to be only enjoyed by men. Thankfully, Unity Dow, then attorney and human rights activist, challenged the constitutionality of the Citizenship Act. In the seminal case of Dow v. Attorney General 1991 BLR 233(HC), the court held that women, just like men, have the right to pass on Botswana citizenship to their children. This is the law today. In view of the aforegoing, it is evident that Botswana’s legal framework is conducive to gender equality. This is indeed commendable.

Next week, we look at gender representation in the executive, judiciary, legislature, Ntlo ya Dikgosi, previously the House of Chiefs, and the public service. We will also look at gender representation in government agencies and directorates, the Botswana Police Service, Botswana Defence Force, local government authorities, parastatals, organized groups, e.g. trade unions and employers’ organizations, political parties and the private sector.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys

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Botswana’s legislative framework on Gender Based Violence: is there progress? (Part II)

1st September 2020

In this series, we discuss Botswana’s legislative framework on Gender Based Violence (GBV), regard being had to the strengths and weaknesses of the relevant legislation, which is mainly the Penal Code, Cap. 08:01; Criminal Procedure and Evidence Act, Cap. 08:02 and the Domestic Violence Act, Cap. 28:05.

As stated in part I, in 2013, the International Commission of Jurists (ICJ) published a report titled ‘Women’s Access to Justice in Botswana: Identifying the Obstacles & Need for Change’(“the Report”), whose author is Leah Hoctor.

As discussed in part I, the report outlined some legislative strengths and gaps. It also made recommendations thereto. In part I, we outlined the legislative strengths and gaps thereto. We also made an exposition of the recommendations as suggested in the Report.

In this article, we make a cursory exposition of the extent to which the weaknesses have been addressed through, inter alia, implementation of the recommendations. We deal with marital rape, sexual harassment, the cautionary rule and the exclusion or strict regulation of admissibility of certain forms of evidence in sexual violence cases.

We start with marital rape. Section 141 of the Penal Code provides that “Any person who has unlawful carnal knowledge of another person, or who causes the penetration of a sexual organ or instrument, of whatever nature, into the person of another for the purposes of sexual gratification, or who causes the penetration of another person’s sexual organ into his or her person, without the consent of such other person, or with such person’s consent if the consent is obtained by force or means of threats or intimidation of any kind, by fear of bodily harm, or by means of false pretences as to the nature of the act, or, in the case of a married person, by personating that person’s spouse, is guilty of the offence termed rape.”

It is clear that section 141 supra, recognises all other forms of rape, except marital rape. This perpetuates the fallacy that, in marriage, sexual consent is perpetual and needs not be sought during the subsistence of the marriage.

In relation to marriage, section 141 only criminalizes the act where a perpetrator, not married to the victim, personates the victim’s spouse.

Put simply, marital rape remains uncriminalised in Botswana. This, despite the fact that the Convention on the Elimination of all Forms of Violence Against Women designates marital rape as a form of domestic violence.

Not only that. According to Nasha, R.M (2020), in her thesis titled ‘Criminalising Marital Rape in Botswana: The Need for Legal Reform’, ‘…marital rape violates numerous human rights that range from the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment, the right to security and liberty of the person, as well as the right to health….’

There is, however, a view that depending on the circumstances of a case, a spouse can be convicted of rape within the meaning of section 141 as it is. I agree, but what would we lose by making an explicit provision that criminalises marital rape?

We now turn to sexual harassment. Sexual harassment does not appear among the crimes specified in the Penal Code, Cap. 08:01. So, in terms of our law, sexual harassment is still not a criminal offence.

In terms of our law, the closest there is to sexual harassment is ‘sexual abuse’ which is defined in the Domestic Violence Act, Cap.28:05 as ‘…including but is not limited to any sexual conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the applicant.’

The other is ‘domestic violence’ which the Domestic Violence Act, Cap.28:05 defines as ‘…any controlling or abusive behavior that harms the health or safety of the applicant and includes- (a) physical abuse or threat thereof; (b) sexual abuse or threat thereof; (c) emotional, verbal or psychological abuse; (d) economic abuse; (e) intimidation; (f) harassment; (g) damage to property; Copyright Government of Botswana (h) where the applicant and the respondent do not stay in the same home, entry into the applicant’s home without his or her consent; (i) unlawful detainment; or (j) stalking.

Admittedly, the Domestic Violence Act, Cap.28:05 does have a definition for ‘harassment’ but it does not make mention of sexual harassment. It defines ‘harassment’ as  ‘…engaging in a pattern of conduct that constitutes fear of harm including- (a) loitering outside of or near the building or place where the applicant resides, works, carries on business, studies or happens to be; (b) making telephone calls or inducting another person to make telephone calls to the applicant, whether or not a conversation ensues; or (c) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the applicant’s home or work.’

It, however, ought to be noted that the Domestic Violence Act, Cap.28:05 only applies to people in a domestic relationship, i.e. a relationship between an applicant and the respondent in any of the following ways- (a) they are or were married to each other; (b) they are or were cohabiting; (c) they are a child of the applicant or respondent; (d) they are family members; (e) they would be family members related by affinity if the persons referred to in paragraph (b) were, or could be married to each other; (f) they share or shared the same residence; or (g) they are or were in an engagement, dating including an actual or perceived romantic, intimate or sexual relationship.

It also ought to be noted that under the Domestic Violence Act, Cap.28:05 the victim, and not the state, launches civil proceedings against the perpetrator and the best remedy that the victim can get is a restraining order against the perpetrator. The police only come into the picture in enforcing the order if there is a breach of the court order.

However, though it does not use the words ‘sexual’ and ‘harassment’, section 146 of the Penal Code, Cap. 08:01, which deals with Indecent assaults, addresses some aspects of sexual harassment. For instance, section 146 (3) provides that ‘whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or intrudes upon the privacy of such woman, is guilty of an offence and is liable to imprisonment for a term not exceeding one year.’

We now turn to the cautionary rule. The rule provides that magistrates and judges should caution themselves on the dangers of convicting on uncorroborated evidence of the complainant or the victim as the case may be.

In terms of section 239 of the Criminal Procedure and Evidence Act, Cap. 08:02, except in cases of perjury and treason, it is lawful for a court to convict a person on the single evidence of any competent and credible witness.

However, in terms of the cautionary rule, magistrates and judges should caution themselves on the dangers of convicting on uncorroborated evidence of the complainant or the victim as the case may be.

The position of the law in Botswana, as per such authorities as Tlhowe v. The State 2008 (1) BLR 356 (CA), is that, in sexual offences, the evidence of the complainant need not be corroborated but it does require that magistrates and judges should warn themselves of the dangers of convicting the accused on the uncorroborated evidence.

In Tlhowe v. The State 2008 (1) BLR 356 (CA), the court held, inter alia, that ‘Over the years, the practice had developed of applying the so-called cautionary rule in the evaluation of the evidence of a complainant in a rape case. The correct approach was that, once the complainant’s credibility had been established and the cautionary warning correctly applied by the court, the accused could be convicted on the single evidence of the complainant. Additional corroborative evidence was not required.’

Therefore, Botswana has not abolished the cautionary rule despite concerns that its application may prejudice victims of sexual violence who often have no witness to corroborate their case because sexual offences are done in secret.

We now turn to the exclusion or strict regulation of admissibility of certain forms of evidence in sexual violence cases.

There is no provision in the Criminal Procedure and Evidence Act, Cap. 08:02 which provides for the exclusion or strict regulation of admissibility of certain forms of evidence in sexual violence cases.

Evidence of prior sexual history or medical evidence related to virginity, for instance, is not excluded despite the fact that experience has shown that such evidence often leaves victims of sexual violence with secondary trauma because of intrusive cross examination by attorneys in court.

Though no empirical study has been conducted in that regard, anecdotal evidence suggests that some victims of sexual violence have dropped cases because of the fear and shame of being asked questions in that regard.

This is, however, mitigated by the provision for on camera trials through which a victim’s privacy can be achieved.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or anmorima@gmail.com

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Botswana’s legislative framework on Gender Based Violence: is there progress? (Part 1)

25th August 2020

In this series, we discuss Botswana’s legislative framework on Gender Based Violence(GBV), regard being had to the strengths and weaknesses of the relevant legislation, which is mainly the Penal Code, Criminal Procedure and Evidence Act and the Domestic Violence Act.

In 2013, the International Commission of Jurists (ICJ) published a report (“the Report”) titled ‘Women’s Access to Justice in Botswana: Identifying the Obstacles & Need for Change’, whose author is Leah Hoctor.

The Report defines GBV as including ‘…a wide variety of conduct, including, but not limited to sexual assault, physical and emotional domestic violence, and sexual harassment.’

It states that GBV ‘…incidents will usually involve multiple abuses of human rights, such as rights to bodily integrity, to freedom from torture and cruel, inhuman or degrading treatment, to equality and non-discrimination and sometimes to life.’

According to the Report, the prevalence of GBV is very high in Botswana as in other parts of the world. It stated that in Botswana, ‘…a recent study outlines that as many as 67% of the women surveyed had experienced at least one form of gender-based violence; 35% had experienced physical violence by an intimate partner; 27% had suffered rape or attempted rape in the community and 23% had been sexually harassed.’ There is no doubt that the situation is worse today.

The Report started by acknowledging the positive legislative steps Botswana has taken to combat the scourge of GBV. It then stated the legislative gaps and made recommendations thereto.

In this article, we outline the legislative strengths and gaps thereto. We also make an exposition of the  recommendations as suggested in the Report. To avoid misrepresentation, we quote the recommendations verbatim.

In the article(s) that follow, we make an analysis of the extent to which the weaknesses have been addressed through, inter alia, implementation of the recommendations.

Among the positive legislative steps taken by Botswana is the amendment of the Penal Code, in 1998, in terms of which the definition of rape was broadened from vaginal penetration to all forms of penetration and by any instrument. It also increased the penalties for various forms of sexual assault.

According to the Report, at the time, the Penal Code specified a minimum sentence of 10 years for rape, increasing to a minimum of 15 years where injury results or where the perpetrator had HIV at the time of the rape; a minimum of five years for attempted rape and a maximum of seven years for indecent assault.

The other positive legislative step is the amendment of the Criminal Procedure and Evidence Act to provide for in-camera hearings in sexual offences cases.

The other positive legislative step is the 2008 enactment of the Domestic Violence Act which, according to the Report, for the first time, established a system of protection orders applicable in situations of domestic violence.

We now turn to the legislative gaps and the recommendations thereto. The Report states that despite improvements in definitions, sentencing and procedures with respect to the Penal Code, Criminal Procedure and Evidence Act and Domestic Violence Act, a number of problems remain, hence its recommendations as discussed below.

First, is the recommendation for an unambiguous legislative provision clarifying that rape within marriage falls within the definition of rape in the Penal Code and constitutes a criminal offence under Botswana’s criminal law for which individuals can be prosecuted to the full extent of the law.

Second, is the recommendation for a comprehensive prohibition of sexual harassment in all public and private spheres and corresponding criminal, civil and administrative penalties.

Third, is the recommendation for legislative exclusion or strict regulation of admissibility of certain forms of evidence in sexual violence prosecutions, such as evidence of prior sexual history or medical evidence related to virginity.

Fourth, is the recommendation for legislative abolition of the cautionary rule in cases of sexual violence. Fifth, is the recommendation for undertaking a meaningful consultation process to consider whether a specific criminal offence of domestic violence should be created.

Seventh, is the recommendation for the issuance of directives that spell out the responsibility of identified officials to effectively investigate all instances of gender-based violence brought to their attention, with a view to enabling subsequent accountability of the perpetrators, including through prosecution.

Eighth, is the recommendation for the development of comprehensive guidelines directed at police officers, prosecutors, social workers, health professionals and members of the judiciary, concerning all forms of gender-based violence.

According to the Report, these guidelines should complement the new Regulations for the Domestic Violence Act which have been developed and the related guidelines for police services.

Among other things, the guidelines should explain the wide variety of conduct which can constitute gender-based violence and outline the applicable criminal laws. Specifically, the guidelines should address the necessity of eradicating mistaken assumptions and stereotypes as to what constitutes such violence.

The guidelines should also detail the specific needs of survivors of various forms of gender-based violence, emphasizing that they must be treated with respect and appropriate sensitivity. They should also emphasize that such violence must be dealt with as serious criminal conduct and that procedures applied during investigation and legal proceedings must not cause further harm to the survivor.

The said guidelines should provide detailed, and profession specific, procedural guidance on the way in which to handle complaints and cases of gender-based violence. Further, they should clarify, for prosecutors and members of the judiciary, the appropriate rules of evidence and court room procedures which must be applied in cases of gender-based violence.

Nineth, there is need to establish an effective system by which to monitor and review the handling of complaints of gender-based violence so as to identify best practices and eradicate problematic approaches.

Tenth, is the recommendation for the provision of ongoing and regular training and education on gender-based violence and relevant legal frameworks to a cross section of stakeholders, including police officials, judges, tribal authorities, prosecutors.

According to the Report, such initiatives should be conducted in close cooperation with civil society and experts and take account of best-practice models.

Eleventh, is the recommendation for dissemination of information to women on the forms of legal protection available to them in situations of gender-based violence via commonly used means of public information, such as radio broadcasts. Relevant materials and communication should be conducted in close cooperation with civil society and experts and take account of best-practice models.

As stated above, in the article(s) that follow, we shall make an analysis of the extent to which the aforesaid recommendations have been implemented.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or anmorima@gmail.com

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School re-opening during COVID-19-the health, educational and logistical dilemma (Part II)

11th August 2020

As you are aware, on 27th July, the Greater Gaborone COVID-19 zone was put under lock down after a reported spike in new COVID-19 cases. In essence, we have suffered the much dreaded second spike.

Worth mentioning is the fact that new COVID-19 cases were also identified in some schools in Gaborone and Mogoditshane, with one private school recording an estimated 30% infection rate. In view of this, Botswana Sectors of Educators Trade Union (BOSETU) has called for the closure of schools up to next year, arguing that no effective learning can occur under the circumstances.

BOSETU’s calls notwithstanding, the only commitment that government has made is that pre-schools will not re-open when schools re-open. The question is: is government right not to accede to calls to leave all schools closed when the Greater Gaborone lockdown is lifted, possibly in a week’s time? To answer this question, a detailed background is required.

In May, when government announced its intention to open schools on 2nd June and 16th June for completing classes and all other classes respectively, debate ensued as to whether it would be safe in view of the COVID-19 pandemic.

At the time, trade unions, especially BOSETU and Botswana Teachers Union(BTU) argued that the shortage of classrooms, laboratories, toilets, washing basins, etc will make the observance of social distancing and hygiene impossible, risking an uncontrollable spread of COVID-19 when schools re-open.

Government, on the other hand, argued that the aforesaid constraints notwithstanding, opening schools is important lest our children lag behind to an extent which will be difficult of remediation in future. Government further argued that schools have been assigned funds to address the infrastructural concerns raised by the trade unions.

At the time, I argued that because government had, for years, failed to build more classrooms, laboratories and toilets, such backlog could not be addressed in the two months that schools were closed during the national lockdown. I also argued that the high teacher-student ratio caused by limited teachers, classrooms and laboratories would also take years to address.

I, however, argued that be that as it may, schools must open at one point or another. To me, the question then was: when would it be appropriate for schools to re-open, and in what manner?
In attempting to answer the question, I considered what other countries had done. At the time, France, which had recorded 70 new cases of COVID-19 in schools, had allowed schools to reopen, with classes capped at 10 students for preschools and 15 students for other age groups.

In the United Kingdom, there were plans to re-open schools from 1st June though trade unions were opposed to the decision. Some local Councils were threatening to defy the national government and not re-open as planned, arguing that opening so early poses a risk of a second COVID-19 spike.

In South Africa, government also intended to re-open schools in June, but trade unions, especially the South African Democratic Teachers Union (SADTU), were threatening to advice teachers not to go back to work until it is safe to do so. South Africa’s Minister of Basic Education, Angie Motshekga, defended government’s decision to re-open, arguing that it would be unfair for those who do not want to re-open to disadvantage those who want to re-open.

As you may be aware, the South African government later decided to close schools when, as trade unions had warned, the country suffered a second COVID-19 spike.  From the above, it is clear that the trend was to re-open schools in June. The Botswana government was, therefore, not alone in that regard. However, I argued then, as I do now, that this is not a case of the majority; It is a question of life and death where rationale, not numbers, must prevail.

I also wish to add that the determining factor here should be the circumstances of each country, taking into account such factors as the health system’ s readiness to cope should the number of those who require hospitalisation rise exponentially. The question I posed then was whether opening in June would not pose the risk of a second COVID-19 spike as had happened in France?

According to the guidelines given by the Ministry of Health & Wellness, all institutions, including schools, must practice social distancing, where people must be about two meters apart. I argued then that if we still have classes of more than forty students, some of whom share chairs, desks, textbooks and laboratory equipment, social distancing is not feasible in schools.

I also argued that the requirement for combis to keep registers, take body temperatures, and to keep record of such in respect of all passengers, including students, was a near impossibility. To illustrate my point, I gave an example of urban schools, where students would have to be waiting for combis from as early as 5:30 am, in the cold of winter.

As you are aware, that early in the morning combis are in a rush and students struggle for combis with those going to work. Is it realistic that combi operators would keep registers; take temperatures and record such in such circumstances?  I also argued that the fact that this routine must also be done at schools compounds the problem. I gave an example of a senior secondary school with, say, 2000 students, arguing that taking body temperatures is a near impossibility considering that some schools would have only two thermometers, for instance?

I opined that even if the students arrive at school as early as 6:00 am, it is near impossible for them to complete all the said protocols in time to start their lessons at, say, 7:45 am? As you may have observed, an attempt to adhere to the above protocols has resulted in students overcrowding, for instance, in queues at the school gate, something which increases the risk of infection.

Then there is the requirement to wash hands regularly. I questioned whether our schools would have enough washing basins and soap or sanitizers for such? Even if we had enough, how many students would wash their hands, especially in the cold of winter?

Then there is the requirement to wear face masks. I had a suspicion that it will be difficult for students, especially at lower primary school to wear face masks at all, or to wear them properly. Then there are boarding schools whose hostels are, as of necessity, congested, with bunker beds and shared showers. In some schools, about 98% of students are boarders. I wondered how social distancing and hygiene would be ensured in such an environment?

Then there is mealtime where students queue for meals; seat in groups when they eat; and gather at the tap for washing their hands and utensils after meals. Then there are primary school students, especially at lower levels, who, even if they may have been told that COVID-19 is a deadly virus, may not have the cognitive and affectionate ability to comply with the social distancing and hygiene protocols.

I concluded that if strict regard is had to the aforegoing, schools would not re-open in June, even in January 2021. I, however, opined that that would have devastating consequences in the long term, contending that we must make do with what we have and re-open schools as soon as it is safe to do so for the sake of our children’s future.

For me, the question was: when and how, then, should we re-open schools? I gave three alternatives in order of priority. The first alternative was for schools to re-open in July. This view was informed by the fact that June is the coldest month of the year, during which many people contact the influenza virus and suffer bouts of flue.

It was my view that if schools opened in June, we may face a double jeopardy of flue and COVID-19 in schools. I contended that because when somebody has flue, they have a temperature rise, this will pose a challenge considering the requirement to take temperatures for COVID-19.

I argued that, as per the COVID-19 protocols, we could end up having to refer many students whose temperatures are more than 37.4 Degrees Celsius not because of COVID-19, but because of a common cold, something which would, no doubt, overwhelm our system.

As you are aware, we have students with such underlying illnesses as Asthma. Ordinarily, such conditions worsen in winter. Some may be triggered by allergies, and some students may be allergic to the sanitizers that will be used. The second alternative was for only completing classes (i.e. Standard 7, Form 3 and Form 5) to re-open in June, and the rest to re-open in January 2021.

In my view, this would free up classrooms; laboratories; hostels and dining halls, making compliance with the COVID-19 social distancing and hygiene protocols feasible. The third alternative was for only Form 5s to re-open in June and the rest, including Standard 7s and Form 3s, to re-open in January 2021.

As you are aware, we have automatic progression from Standard 7 to Form 1. We also have near automatic progression from Form 3 to Form 4. In my view, there would, therefore, be limited impact on Standard 7s and Form 3s since their examinations are, for all intents and purposes, more formative than summative.

I opined that to cater for the subject matter the students would have lost, a bridging course and/or remedial lessons could be developed for January 2021. Also, the Form 1s and Form 4s could open early and have reduced school vacations to cover up for lost time. I argued that, in any event, students taking such practical subjects as Agriculture, Home Economics and Design & Technology have already lost a lot of time in preparing for their practical examinations.

At the time, government had hinted at the possibility of using the double shift system in terms of which a class would be split into two, with each sub-class coming to school at different times. You may be aware that this system has been used before and it was stopped because of the numerous problems it presented. Besides overworking teachers, something which affected their delivery and led to poor results among students, some students were attacked and raped by criminals because they had to knock off late from school.

I argued that in the COVID-19 era, this would be problematic because students, especially in urban areas, would be put at the risk of boarding combis which have not been sanitized and without the requisite social distancing since such protocols are unlikely to be observed when it is dark, especially in winter.

From the new infections recorded in the one school in Gaborone and another in Mogoditshane, it is clear that if the COVID-19 virus finds its way into a school, many students may be infected.
Therefore, in view of my argument that it is difficult for students to comply with COVID-19 protocols, it may be in the children’s best interest that school re-opening be delayed until it is safe for them to return.

In my view, considering that August is said to be the peak month for many countries, including our neighbour, South Africa, it may be advisable to re-open schools in January 2021 because after August/September very little will be left of third term. Logically, the January 2021 argument should only be applicable for the schools in the Greater Gaborone zone, but if the Greater Gaborone zone schools are to remain closed, so too should schools in the rest of the country because students sit for the same national examinations.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or HYPERLINK “mailto:anmorima@gmail.com” anmorima@gmail.com

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