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
A wife, uncle, and two in-laws fall at the hands of Judah’s despot
The pre-eminent Jewish chronicler, Flavius Josephus, said of Herod the Great that he was “blessed with every gift of looks, body, and mind” but he was a “slave to his passions”. This was in the context of a gloating bloodlust.
His sword knew no sacred cows: neither his own kids, wives, in-laws, next of kin, nor bosom friends were immune from it. He is on record as pestering Caesar Augustus with a barrage of letters seeking permission to execute his own flesh and blood, prompting the Roman emperor to at one time quip that, “It is better to be Herod’s pig than his son”, which was apt: as a “Jew”, Herod did not eat pork and therefore in the event that he kept any pigs, they would never have to be killed.
You are by now well-apprised of the death of Hyrcanus II by the same Herod, General Atiku, in 30 BC. Hyrcanus, a Hasmonean ruler of Judah twice over, was actually the grandfather of Mariamne I, Herod’s most beloved wife and his second of up to 10 wives. It was Mariamne’s own mother Salome, who dreading Herod’s pathological savagery, pitched Mariamne to Herod in the hope that that would insure her family from Herod’s murderous caprices.
Now, Mariamne, General, was as much a stunning beauty as her younger brother Aristobulus III was breathtakingly good-looking. Having tied the knot with Herod in 37 BC, Mariamne had prevailed over her husband to install Aristobulus as High Priest. The post had fallen vacant on the death of Antigonus in 37 BC and Herod had appointed one Ananel, who had no ties whatsoever to the Hasmoneans, the first such in more than a century, in his place. Unable to resist the spirited entreaties of his beloved wife, who had also lobbied Queen Cleopatra of Egypt and her beau Mark Anthony, Herod gave in and replaced Ananel with Aristobulus, who was only 16 years old, in 36 BC.
Because of his enormous charisma and overall affability, Aristobulus was a hit with the masses despite his tender age and Herod was envious of the young man’s rock star-like popularity. To make doubly sure the young man did not harbour a seditious ace up his sleeve, the morbidly paranoid Herod had his spooks watch on both Aristobulus and his mother round the clock. Sensing imminent danger, Aristobulus contacted Cleopatra, asking for a pre-emptive safe passage to Egypt and there enjoy absolute freedom. When Herod got wind of this, he decided to get rid of Aristobulus as he did not wish him to be a perennial thorn in his flesh from the utter safety of self-imposed exile.
The opportunity came at a banquet in Jericho which was organised by Aristobulus’ mother. There, Herod had one of his henchmen cause Aristobulus to drown during a dusk time horseplay in a swimming pool. Of course Herod would forever maintain the drowning was accidental when everybody knew it was in truth a tactical elimination. Poor Aristobulus was only 17 years old having been born in 56 BC. He was the last Hasmonean High Priest and was replaced by the previously deposed Ananel, who was to remain in that position till 29 BC.
HEROD ACQUITTED OVER THE ARISTOBULUS DEATH
It need not be over-emphasised, General, that Mariamne and her mother Alexandra did not take Herod’s line over the all too untimely demise of Aristobulus lying down. If he had reckoned that with the death of Aristobulus he had gotten rid of potentially the most potent threat to his omnipotence, he was totally mistaken. Herod had actually simply fanned the flames of intrigue against him, for mother and daughter confronted him and accused him of murdering their boy in cold blood.
Nor did the two Iron Ladies end matters there: Alexandra wrote a lachrymal letter to Cleopatra to get her to bring her influence to bear on Mark Anthony so that Herod paid dearly and likewise for his nefarious act. Anthony, who at the time was the Roman colossus in charge of the whole of the Middle East, was persuaded and during a visit to Laodicea (in modern-day Turkey, though some accounts say it was Rhodes in Cyprus), he commanded Herod to report to him forthwith and exculpate himself over the affair.
Although Herod put a brave face on the matter, General, he was rather unsure of his eventual fate after the trial. He also suspected rightly or wrongly that Anthony had a thing for the voluptuously beautiful Mariamne and the last thing Herod wanted was for any other man to bed his beloved Mariamne even in death. So before he set off for Laodicea, Herod instructed his uncle Joseph, who was married to his sister Salome, to make sure that in the event that Anthony sentenced him to death, he should immediately put her to the sword. He also detailed a certain Sohemus, a most trusted aide, to stand sentry over the entire womenfolk at the palace.
Herod, however, had the nine lives of a cat, General. Using his immense rhetorical skills and the time-honoured palm greasing, he won himself an acquittal. Meanwhile, the Judean rumourville was abuzz with chatter that Herod had been summarily executed by Anthony, as a result of which people became spendthrifts of their tongues.
Both Joseph and Sohemus disclosed to Mariamne the instructions Herod had left them with in relation to her fate once he was no more. Mariamne was both livid and distraught that her husband regarded her as so easily expendable when outwardly he cherished her beyond words. To her mind, his arrangements with Joseph had nothing to do with love but sprang from sheer monstrosity. She probably thanked God that he was dead, but the fact of the matter was that he was not and when he at long last turned up, she did not want to have anything to do with him, including the conjugation which he so eagerly pined for after such an extended absence.
HEROD KILLS HIS WIFE AND HIS UNCLE
Now, if Herod had a kind of Svengali, General, it was his youngest sister Salome. Salome (65 BC-10 AD) was the most powerful woman at Herod’s court. A sly, scheming, and manipulating vixen, she arguably more than any other living being had the most sway in a negative sense on her brother, who took practically whatever she said as gospel truth.
Let us nevertheless, General, take stock of the fact that the bulk of what we learn about Salome comes from Flavius Josephus, who himself relied on the writings of Herod’s court historian Nicolaus of Damascus. For one reason or the other, Nicolaus did not see eye to eye with Salome and it is therefore possible that much of what Nicolaus relates of her is embellished to smear her before the court of history. Upon his return, Herod was told of the rumours of his death and so was surprised to find Mariamne alive when Joseph and Sohemus should in the circumstances have had her killed if indeed they were loyal to him. In fact, Joseph had even put Mariamne and Alexandra into the safe custody of Roman legions stationed in Judea just in case Jewish malcontents who abhorred Herod turned their wrath on them.
But there was more. Salome reported to Herod that Mariamne, who she hated like the plague, had had sexual relations with both Joseph and Sohemus, this being Mariamne’s reward to them for dishing out to her the dirt on Herod, and that she had on several occasions before attempted to poison him. Now, no one would hump Herod’s most beloved wife and get away scotfree. It is therefore small wonder that Herod straightaway ordered the execution of Joseph and Sohemus. Joseph was 61 years old at the time of his death in 34 BC, having been born in 95 BC. In the case of Mariamne herself though, he had her subjected to a formal court trial not on charges of adultery but of attempted regicide.
Herod had hoped that the court would acquit her, whereupon he would make bygones be bygones so great was his love for the woman, but sadly for him, General, she was found guilty and sentenced to death. Even then, Herod tactfully dilly-dallied on signing the writ of execution and simply had his wife detained at a fortress for some time until Salome prevailed over him to execute her at long last. Writes Josephus: “Thus, with the death of the noble and lovely Mariamne ended the glorious history of the Hasmonean High Priest Mattathias and his descendants.”
For a long time to come though, General, Herod was haunted by the death of his wife to the point of even sometimes coming across as if he had lost his mind. “When Herod realised what this meant (the death sentence passed on Mariamne), he tried in vain to have the verdict changed, but Salome did not rest until the death penalty was carried out,” Josephus informs us. “Herod was heartbroken; nothing could comfort him for the loss of his lovely wife.
For seven years he refused to have her body buried, and held it, embalmed, in his palace. Afterwards, he became so melancholy and despondent, nothing interested him or could arouse any enthusiasm in him for living … He was so far conquered by his passion, that he would order his servants to call for Mariamne, as if she were still alive, and could still hear them … He tried hard to forget his trouble by going hunting and banqueting, but nothing helped. Herod built new cities and erected temples and palaces. He also named a tower in honour of Mariamne.”
HEROD SLAYS SISTER’S EX-HUBBY
Mariamne’s death was not the only one which Herod perpetrated through the instrumentality of Salome. There were actually several and included those of her own husband Costobarus. Salome was married four times, to her uncle Joseph (45 BC); Costobarus (34 BC); Sylleus (circa 27 BC); and Alexas (20 BC).
Like the Herod clan, Costobarus was of Idumean stock. It was Costobarus Herod had made governor of Idumea and Gaza and upon Joseph’s death had him tie the knot with Salome, with the couple eventually siring two children, Berenice and Antipater III. Costobarus, though, soon began to harbour monarchical ambitions of his own and wrote to Cleopatra beseeching her to persuade Mark Anthony to make Idumea independent of Herod and install him (Costobarus) as Rome’s client King of the territory.
Of course upon learning of this, Herod was not amused. It was Salome who pleaded with him not to put her husband to the sword. Next time, however, a dumped Costobarus was not so lucky. Seven years after their marriage, Salome and Costobarus parted ways and a possibly hurt Salome decided to exact vengeance. She informed her brother that he had been harbouring two fugitives from Herodian justice for a full 12 years at his own farm.
The two were simply known as the Sons of Baba. Baba ben Babuta, their father and clan patriarch, was related to the Hasmonean ruler Antigonus, who Herod had replaced and killed in 37 BC with the help of Roman legions. Baba and his sons had resisted Herod at the time, with his sons henceforth persisted in insurrectionist activity against Herod. Baba himself had been captured and blinded by Herod but spared anyway as he no longer posed any threat. Writes Josephus: “Now the Sons of Babas were of great dignity, and had power among the multitude, and were faithful to Antigonus, and were always raising calumnies against Herod, and encouraged the people to preserve the government to that royal family (the Hasmoneans) which held it by inheritance.”
Costobarus had provided the Sons of Baba an indefinite lair “supposing that their preservation might be of great advantage to him in the changes of government afterward”. Following the Salome tip, Herod had Costobarus and the Sons of Baba summarily executed “so that none was left alive of the family of Hyrcanus (the Hasmonean), and the kingdom was wholly in Herod’s power, there being no one of high rank to stand in the way of his unlawful acts” per Josephus.
We may use the information we receive from them, and they may use the information we share with them, to help operate and market services’. WhatsApp is now reserving the right to share data it collects about you with the broader Facebook network, which includes Instagram, regardless of whether you have accounts or profiles there, claiming it needs it to help operate and improve its offerings. More broadly, almost all of the $21.5 billion in revenues which Facebook generated in the third quarter of 2020 came from advertising and there is currently none in WhatsApp.
The company now wants to be able to serve more targeted ads to people on Facebook and Instagram by also garnering their usage habits on WhatsApp and enabling businesses take payments via WhatsApp for items that were selected on other Facebook sites. For long-time users, the option to share data with Facebook was made available in 2016, but it was just that: optional and temporary. It was now to become mandatory for everybody from Feb. 8 but owing to a massive backlash, the company has delayed that to May 15 to try and persuade users to sign up to the new Ts and Cs.
WhatsApp on Monday attempted to address the uproar over privacy concerns with a post on its website, explaining that the update was designed to aid businesses on its platform, as it reiterated in Friday’s post.
“We want to be clear that the policy update does not affect the privacy of your messages with friends or family in any way. Instead, this update includes changes related to messaging a business on WhatsApp, which is optional, and provides further transparency about how we collect and use data.”
These new terms have caused an outcry among technology experts, privacy advocates, billionaire entrepreneurs and government organisations and triggered a wave of defections to rival services. Elon Musk has urged his followers to switch to Signal and the governments of Turkey and India have threatened to block the app if it insists on proceeding.
Elsewhere too, in spite of Whatsapp protestations, millions of its users are already migrating to alternative platforms. Signal saw 7.5 million downloads last week, a 4,200% spike since the previous week and large swaths of users also jumped to Telegram, as the platform gained 9 million new users last week, up 91% from the previous week. Both apps are now topping Google and Apple’s app stores,
Facebook could possibly learn a lesson from history here. Every past empire – Aztec, Mayan, Greco-Roman, Sumerian, Mongol, Chinese, Ottoman and more recently British, all saw their star rise, their glory swell, their boundaries grow and yet each eventually fell, often the instigators of their own downfall.
To understand its influence and control one only has to check out the un-smart sector of the mobile phone industry which for some time has offered handsets a small step up from the basic starter sets with Facebook and Whatsapp as default screen app settings. These limited internet access options have allowed millions of users to connect with affordable data bundle packages.
And for Google smartphone subscribers, the search engine automatically connects its base to Whatsapp and Facebook – one big, happy family. Facebook is also seamlessly linked to Paypal offering contact-less charges for its boosted post advertising, a somewhat sinister partnership which accesses their Paypal log-in and authorisation details without the need to inform the payee – the transaction is simply deducted automatically from the registered credit card. This is Big Brother with a blue logo.
The bottom line here is that if you have any privacy issues at all – and you probably should – you might as well make the switch now before you are forced to sign away your rights in May. And the plus part is that both Signal and Telegram have the technological edge over Whatsapp anyway, the latter even being accessible on multiple platforms simultaneously, not just on your phone. Empires take time to crumble and Facebook is not in imminent danger but information is a weapon that can be used in any war, even a virtual conflict, so don’t give this giant any more ammunition than it already has.
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.