Last week, we made a review of gender equality in Botswana from the prism of the legal framework. We considered 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.
We concluded that Botswanaâ€™s legal framework is generally conducive to gender equality. This week, we look at gender representation in the cabinet, judiciary, legislature, Ntlo ya Dikgosi, Attorney Generalâ€™s Chambers, the Botswana Police Service (BPS) and Botswana Defence Force (BDF).Â First, cabinet appointments. Both the President and the Vice President are males. In fact, Botswana has never had a female President or Vice President.
Of the eighteen cabinet Ministers, only four, i.e. Phildah Kereng, Dr. Unity Dow; Anna Mokgethi; and Peggy Serame of Environment, Natural Resources Conservation & Tourism; International Affairs & Corporation; Nationality, Immigration & Gender Affairs and Investment, Trade & Industry respectively are women. The two ex-officio members of cabinet being the Permanent Secretary to the President and Secretary to Cabinet, Elias Magosi, and Attorney General, Advocate Abraham Ketshabe, are both male.
Of the nine Assistant Ministers, only two, i.e. Beauty Manake and Nnaniki Makwinja of Agricultural Development & Food Security and Basic Education respectively are woman. One can, therefore, conclude that in Botswana cabinet appointments do not take gender into consideration.Â Second, representation in the judiciary. Botswanaâ€™s highest court, the Court of Appeal, has only one female Justice of Appeal, Leatile Dambe, out of six. She made history by being the first female Justice of Appeal when she was so appointed in May 2018.
As regards the High Court, only five (i.e. Justices Solomon, P; Mogomotsi, T.G; Dube, J; Tau, T and Garekwe, M) out of twenty-seven judges are women. As regards the Industrial Court, only two (i.e. Justices Marumo J.B and Mathiba A.R) out of seven judges are women. Though I was not, at the time of writing this article, able to ascertain the gender representation in the magistracy, it appears there are more female magistrates than there are males though the difference is marginal.
Third, representation in Parliament. Both the Speaker and Deputy Speaker of the National Assembly are male. They are Honourables Phandu Skelemani and Mabuse Pule respectively. It is, however, worth mentioning that Botswana has had two female speakers in succession, namely Dr. Margret Nasha and Honourable Skelemaniâ€™s predecessor, Gladys Kokorwe. Both Parliamentary Party Whips are male. They are Liakat Kablay and Pono Moathodi for the Botswana Democratic Party (BDP) and Opposition respectively.
Even in the 11th Parliament, both the BDP whip and the Opposition whips were males. They were Liakat Kablay and Gilbert Mangole for the BDP and the Opposition respectively. Only three, i.e. Honourables Nnaniki Makwinja, Talita Monnakgotla and Anna Mokgethi, out of fifty-seven Elected Members of Parliament are women. On a positive note, four out of six Specially Elected Members of Parliament (SEMPs) are women. They are Honourables Phildah Kereng, Dr. Unity Dow; Beauty Manake; and Peggy Serame.
His Excellency the President, Dr. Mokgweetsi Eric Keabetswe Masisi, deserves commendation for using the SEMPs provision to reduce the gap between male and female MPs in the 12th Parliament. Ntlo ya Dikgosi, previously called the House of Chiefs, too is marred by gender inequality. Both its Chairman and Deputy Chairman are males. They are Kgosi Puso Gaborone and Kgosi Tshipe Tshipe respectively.
Since its establishment, Ntlo ya Dikgosi has had only one female Chairperson, Kgosi Mosadi Seboko. And that was as far back as 2003 and she lasted for only one year. This is not surprising because Botswanaâ€™s traditional leadership being predominantly patriarchal, chieftainship is inherited by sons from birth.
In the public service too, especially for decision-making positions, gender disparity is rife. According to the Ministry of Labour & Home Affairsâ€™ 2008 Gender Disaggregated Data on Decision Making Positions, 63% of men occupied the civil serviceâ€™s decision-making positions, i.e. D1 scale to F0 scale, compared to a paltry 37% for women. Women had the lowest appointments to the salary scale of F0 (18%) while men had the highest score of appointment to the same salary grade (82%). This situation has not changed.
At the Attorney General (AG)â€™s chambers, pre-2008, women occupied only 42% of decision-making positions while males occupied 58%. The lowest record of women was found in the positions of salary grade F2 being 17 % compared to menâ€™s 83 %. Except for the E2 salary grade where women were more in number than menâ€™s 35%, men dominated all other positions by salary grades. Today, this situation has hardly changed. The AG and at least one of his deputies are male.
Another entity related to the Attorney General is the Directorate on Public Prosecutions (DPP). It is also headed by a male, Stephen Tiroyakgosi. Tiroyakgosiâ€™s predecessor, the late Leonard Sechele, was also male. So was his predecessor, Advocate Abraham Ketshabe. It is, however, worth mentioning that prior to Advocate Abraham Ketshabe, a female, Dr. Athaliah Molokomme was Attorney General for many years. She was the first female Attorney General in Botswana.
Though the Botswana Police Service (BPS) has always employed men only, about three decades ago the BPS began recruiting women into the service. That notwithstanding, the BPSâ€™s decision-making positions are still dominated by men. Just like the pre-2008 situation, 76% of decision-making positions are still occupied by men. The BPS has never had a female Commissioner. It has, however, had Assistant Commissioners and Deputy Commissioners, including the current Deputy CommissionerÂ ofÂ PoliceÂ responsible for Operations, Ms. Dinah Marathe.
Until 2008 when twenty-two women graduated as officer cadets at the Botswana Defence Force (BDF), the BDF did not recruit women soldiers into the army. Today, more than ten years down the line, however, women, obviously because they are still new and few in the army, have not yet found their way into the armyâ€™s high decision-making positions. The BDF has never had a female Commander or Deputy Commander.
Though we are yet to consider other government departments, parastatals, civil society organizations and political parties, it is evident that, in Botswana, decision making positions are male dominated. If Botswana is to achieve the ideal of gender equality, such deliberate measures as a quota system or clear policy pronouncements on gender balance need to be considered, especially in government departments and parastatal organizations. In next weekâ€™s article, we look at gender representation at local government authorities, parastatals, trade unions and political parties.
*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys
The Botswana labour movement predates independence, though, according to ‘Friedrich Ebert Stiftung Trade Union in Botswana: Country Report 2003’, there was no organized labour in the form of vibrant trade unions which could effectively articulate the workers’ interests until 1948.
Post 1948, the labour movement became very robust and active (Hunyepa, 2008). In fact, it is incontrovertible that the labour movement contributed significantly to Botswana’s attainment of independence (Kodzo and Ntumy, 2015).
Though regional in nature, the Francistown Employees Union (FEU) and Serowe Workers Union (SWU) contributed immensely to Botswana’s independence (Hunyepa, 2008).
The same applies to the Bechuanaland Protectorate Workers’ Union (BPWU), Bechuanaland Trade Union Congress (BTUC), Bechuanaland General Workers Organisation (BGWO), Botswana Civil Service Association (BCSA), Botswana Teachers Union (BTU), Bechuanaland Protectorate African Teachers’ Association (BPATA) and African Civil Service Association (ACSA).
BCSA and BTU were formed in 1937 and 1949 respectively. BCSA, now Botswana Public Employees Union (BOPEU), fought for the improvement of workers’ conditions of service from time immemorial (Hunyepa, 2008).
BCSA teamed up with the African Advisory Council (AAC) in its campaigns against the ill-treatment of Africans by the colonial government (Hunyepa, 2008). The AAC, whose leadership was dominated by Chiefs and a few educated Batswana, was the people’s torchbearer in as far as political emancipation was concerned (Hunyepa, 2008).
During the colonial era, when Botswana, then Bechuanaland Protectorate, was under British protection, which I submit was colonisation disguised as protection, labour legislation was premised on two labour statutes which applied in the Cape Colony. These statutes were the Masters and Servants Act of 1856 and the Protection of African Labourers Proclamation 14 of 1936.
The basis for applying these colonial statutes, which were applied mutatis mutandis in the Protectorate as they were in the Cape Colony ( Fombad The Botswana Legal System 57), was the British Order in Council (Bechuanaland and Protectorate General Administration Order in Council of 1891; Fombad The Botswana Legal System 51), decreed by Her Majesty the Queen in pursuance of the powers bestowed upon her by the Foreign Jurisdictions Act.
The Masters and Servants Act applied to Bechuanaland from 1909 to 1963. The Protection of African Labourers Proclamation, which provided employees with very limited protection of their rights and employment security, also applied to Bechuanaland until 1963.
These Acts were infamous especially because the colonial government was believed to be insensitive to the plight of Africans and employees’ rights (Kalonda, 37). These labour laws were untimely repealed in 1963 when Bechuanaland promulgated her first employment statute, the Employment Law.
This was done in an effort to improve labour relations in the country as well as to secure cordial industrial relations and workplace peace. The Government of Botswana did this by enacting relatively worker-friendly labour legislation immediately after independence in 1966(Kalonda, 37).
Consequently, Botswana’s labour relations have, until 2011, been cordial, with only one major strike led by the Manual Workers Union in 1995.The result was the famous National Amalgamated Local Central Government Workers Union v Attorney General 1995 BLR 48 (CA) case.
Botswana has ratified and domesticated all the fundamental International Labour Organisation (ILO)’s Conventions. Consequently, her labour legislation developed to give effect to the ILO Conventions. First, was the Trade Union and Trade Dispute Proclamation, 1942 which, according to ‘Friedrich Ebert Stiftung Trade Union in Botswana: Country Report 2003’, legalised trade unions.
In 1969, the Trade Unions and Trade Dispute Proclamation (TUTDP) was repealed and replaced with the Trade Dispute Act No. 28 of 1969. This Act, inter alia, provided for the establishment of the Industrial Arbitration Tribunal and a Board of Inquiry (IATBI).
It also made provision for settlement of trade disputes and control and regulation of strikes and lockouts. In 1992, the Trade Disputes Amendment Act (TDAA) of 1992 was passed. It replaced the Office of the Permanent Arbitrator with the Industrial Court. It, according to Veronica Moroka & 2 Others v The Attorney General and Another, Court of Appeal Civil Appeal No. CACGB-121-17, also provided for the appointment of judges of the Industrial Court.
This amendment was followed by another in 2004 which resulted in the enactment of a comprehensive TDA which made provision for employer organisations. For many years, only industrial class workers were permitted to unionise in the Public Service.
In 2004, significant amendments were made to the Trade Union and Employers’ Organisation Act, Cap 48:01 which enabled public servants who were not industrial class workers to unionise for the first time in the country’s history.
Previously, public servants could only form staff associations as was the case with Botswana Civil Servants Association (BCSA), Botswana Federation of Secondary School Teachers (BOFESETE), Botswana Unified Local Government Service Association (BULGASA), Botswana Teachers Union (BTU), Association of Botswana Tertiary Education Lecturers (ABOTEL), all of which were staff associations registered in terms of the Societies Act.
Today, Botswana has many registered trade unions within the public service, most of which are affiliates of BOFEPUSU which was formed in 2009 when most of its founding members defected from Botswana Federation of Trade Unions (BFTU).
BOFEPUSU’s founding members were BOPEU and the National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU), formerly Botswana Manual Workers Union. BFTU’s members are mainly private sector trade unions except for BOPEU, which disaffiliated from BOFEPUSU in 2015, and Botswana Government Workers Union (BOGOWU).
In 2016, there was yet another amendment to the Trade Disputes Act (TDA) whose principal object was “to provide for the settlement of trade disputes by the Commissioner of Labour, mediators and arbitrators; for the establishment of the Industrial Court as a court of law and equity; for the recognition of trade unions at the workplace and industry level; for the determination of industrial action, protection of essential services, life and property during industrial action; and for matters incidental or connected therewith.”
The year 2011 was a turning point in Botswana’s labour relations history. BOFEPUSU, following Government’s rejection of its 16% wage increase demand, embarked on countrywide public sector strike.
A total of 2 934 employees, who were deemed to be essential service employees and therefore had no right to strike, as held in The Attorney General v Botswana Land Boards & Local Authorities Workers Union and 3 Others, Case No. CACGB-053-12, lost their jobs.
Government responded to the strike by widening the categorisation of essential services through Statutory Instrument No. 57 of 2011. Government used the Statutory Instrument, made under section 49 of the TDA, to declare certain professions, including teaching, as essential services.
BOFEPUSU referred the matter to the Courts which struck down section 49 of the TDA as unconstitutional in Botswana Land Boards & Local Authorities Workers Union v The Attorney General, Case No. MAHLB-000631-11 and The Attorney General v Botswana Land Boards & Local Authorities Workers Union, Case No. CACGB-053-12.
In July 2016, Botswana Federation of Public Service Unions (BOFEPUSU) reported Botswana to the International Labour Organization (ILO), accusing it of violating two core ILO Conventions, namely Conventions 87 (Freedom of Association and Protection of the Right to Organize) and 98 (The Right to Organize and Collective Bargaining) and having acted contrary to the ILO framework definition of essential services. Following the report, Botswana made the short list of top aggressors and violators out of 24 countries.
In 2017, following protracted court battles relating to Government’s unilateral salary increases outside the Public Service Bargaining Council (PSBC), which resulted in the Botswana Landboards, Local Authorities & Health Workers Union v Director of Public Service Management, Case No MAHGB-000343/16 case, Government did the unthinkable – derecognising the PSBC.
In what the trade unions characterised as victimisation of its leaders, Government attempted to transfer certain trade union leaders, resulting in such cases as Johannes Phalaagae Tshukudu v The Director of Public Service Management & the Attorney General Case No. ICUR 11/16; Koketso Joshua Ntopolelang v K. K Moepeng, High Court Case No. MAHGB-000628-14 and Koketso Joshua Ntopolelang v K. K Moepeng, Civil Appeal Case No. CACGB-106-16.
As late as 2018, while in the middle of negotiations with BOFEPUSU to revive the PSBC, Government wrote a letter to all public service trade unions threatening to derecognise them if they did not regularise their registration in terms of section 46 of the Public Service Act.
BOFEPUSU went to court and interdicted the intended action, arguing that they had always had recognition agreements with Government, long before the inception of the Public Service Act in 2010.
The unions argued that this issue was put to rest after Government conceded that public service unions recognised in terms of the Trade Unions and Employers Organizations Act did not need to apply for fresh recognition under the Public Service Act in the case of Botswana Land boards and Local Authorities Workers’ Union and Ors vs. Director, Public Service Management & Anor 2010(3) BLR 351 per Tshosa J (as he then was). In this case, applicants wanted the joining of other recognised public service trade unions in the settlement of the constitution for the PSBC.
In 2018, relations between government and labour changed for the better, almost going back to the pre-2011 era. The 2019/20 and 2020/21 salary negotiations were conducted in harmony resulting in a 10% and 6% salary increase for scales A and B and C and D respectively.
Also, government committed to the reconstitution of the PSBC; and through the Trade Disputes (Amendment), Bill No. 17 of 2019, Botswana Vaccine Laboratory Services, Bank of Botswana, Diamond sorting, cutting and selling services, Operational and Maintenance Services of the railways, Sewage services, Veterinary services in the public service, Teaching services, Government Broadcasting services as well as the Immigration and Customs services have been removed from the list of essential services.
*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 email@example.com
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 firstname.lastname@example.org
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 email@example.com