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

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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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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