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COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF BOTSWANA
06 March 2006
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Committee on the Elimination
of Racial Discrimination
6 March 2006
The Committee on the Elimination of Racial Discrimination has considered the fifteenth and sixteenth periodic reports of Botswana on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, P. C. T. Skelmani, Minister for Presidential Affairs and Public Administration of Botswana, said that Botswana fully recognized its commitment to the objectives of the Convention. Botswana was a young country, however, and, given its limited resources and level of development, it had had to put nation building and unification before cultural diversity. It was estimated that Botswana had over 40 tribes and/or ethnic groups plus numerous new groups among naturalized citizens representing diverse countries and regions of origin. The Government had always held to geographic representation in order to cater to all communities. One issue of contention in Botswana had been that some groups said that their languages were not promoted by the Government. There was already a new government policy in place to promote those languages in the near future. If any groups remained marginalized, that did not have to do with their ethnicity, but with other factors such as their lifestyle or their remoteness from centres with social and other facilities. The Government had elaborated the Remote Area Development Programme to address the special needs of those groups, such as the Basarwa, although it was true that programmes had not always produced the results the Government would have wished.
In preliminary concluding remarks, Linos-Alexandre Sicilianos, Committee Expert acting as Country Rapporteur for Botswana, said that while the delegation and the Committee had not always seen eye to eye, he was pleased to observe that the delegation had shown some flexibility in a number of areas, particularly in regard to Constitutional reform on the membership of the House of Chiefs, the Chieftainship Act, the introduction of mother-tongue education up to grade five, and the welcome acceptance of United Nations Special Rapporteurs' visits to the country.
The Committee will present its written observations and recommendations on the fifteenth and sixteenth periodic reports of Botswana, which were presented in one document, at the end of its session, which concludes on 10 March.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to consider individual communications in private and then, in a public meeting, to hear a report by Committee Expert Patrick Thornberry on draft harmonized guidelines for a common core document for all treaty bodies which are part of the proposed reforms for the Office of the High Commissioner for Human Rights.
Report of Botswana
Urbanization has been rapid in Botswana, with the number of people living in urban areas increasing from 9 per cent in 1971 to an estimated 50 per cent in 1999. The fifteenth and sixteenth periodic reports of Botswana, submitted in one document (CERD/C/495/Add.1), say that Botswana also has one of the highest per capita HIV/AIDS rates in the world and that crisis continues to put a great strain on the Government. A landlocked country in Southern Africa of 1.7 million people who speak some 30 languages, principally Setswana (78.2 per cent) and Ikalanga (7.9 per cent), the Tswana-speaking population is composed of various ethnic groups loosely referred to as the principal tribes, and other ethnic groups referred to as the minority tribes. In terms of numbers, some of the tribes referred to as minority may actually have a larger population than the majority or Principal tribes, which are named in the Constitution. Indeed, one area of dissatisfaction identified by minority groups in Botswana is the Tribal Territories Act, originally proclaimed by the British Government in 1899 and re-enacted in 1933, by which the tribal territories are defined in terms of the dominant tribes occupying them. That dissatisfaction is found, similarly, with representation in the House of Chiefs, which mirrors, in some ways, the tribal demarcation of the Tribal Territories Act. A third area of dissatisfaction is that English is the official language and Setswana is the national language. Some groups do not understand why Government media does not broadcast in minority languages or why minority languages are not taught in the schools.
The report notes that at the time of drafting of the Botswana Constitution, in 1965, the concern throughout Africa was for unity and efforts were made to play down tribal affiliations. Today, after conducting consultations with Batswana throughout the country, the Government has acknowledged that the realities that prevailed at the time of independence have changed. In 2000 the Balopi Commission was established to review laws considered by some to be discriminatory against the minority tribes, and a Bill amending those sections of the Constitution was introduced before the Parliament.
Presentation of Report
P. C. T. SKELMANI, Minister for Presidential Affairs and Public Administration, presenting the report of Botswana, said that Botswana fully recognized its commitment to the objectives of the International Convention on the Elimination of all Forms of Racial Discrimination. Commitment alone, however, was not enough: that commitment had to be translated into concrete action by way, for example, of domestic instruments. The pace at which such instruments could be translated into action, however, depended on the circumstances of each country, including its history, level of development, and the complexity of the issues being addressed.
Botswana was a young country and, given its limited resources and level of development, it had had to prioritize. It had had to put nation building and unification before cultural diversity. That was not to say that Botswana did not value cultural diversity or recognize that it could be an important element in promoting national unity. For that reason, Botswana was taking measures to promote language.
Botswana had many historical legacies that, if they could not be lived with, would take time to address. In that regard, Mr. Skelmani said that Botswana had worked progressively over the years to tackle laws and practices considered discriminatory by some, though the pace of the reforms, he acknowledged, had been seen as too slow or even defensive by some. Hence, there had been periodic displays of frustration by some members of the community. That was normal in a democracy and the Government had responded positively to such pressures.
The present report was the product of collaborative efforts between the State and non-State actors, as opposed to past reports. In preparing the report, account was taken of the Committee's concluding observations following the August 2002 review. In addition, the Government had set up an Inter Ministerial Committee on Treaties, Conventions and Protocols to facilitate the country's implementation and fulfilment of its reporting obligations to the international instruments to which it was a party.
Mr. Skelmani said he wished to clarify the use of the terms Tswana and Non-Tswana in various reports. A citizen of Botswana was called a Motswana, in the singular, and Batswana in the plural. The terms Motswana and Batswana were used in reports in the generic sense, without denoting ethnic identity or origin. When talking about Tswana and Non-Tswana, an impression was sometimes created, he said, that those who were not of the Tswana ethnic group did not speak Setswana, whereas in fact most did. The issue of contention was that some groups complained that their languages were not promoted by the Government. However, the Government already had a policy to promote those languages in the near future.
If any groups had remained marginalized, that did not have to do with their ethnicity, but with other factors such as their lifestyle or their remoteness from centres with social and other facilities. The Remote Area Development Programme had been elaborated to address the special needs of those groups, such as the Basarwa. It was also true to say that the programmes meant to address their needs had not always produced the results the Government would have wished, Mr. Skelmani said.
The Government's land policy had attracted international attention. In Botswana no group had exclusive rights to land. The laws provided that every citizen was entitled to land anywhere in the country if it were available, regardless of their ethnic or tribal origin. Entities to allocate land were not controlled by tribal administration, Mr. Skelmani noted. They implemented national laws that ensured there was no discrimination.
Historically, Mr. Skelmani said, it was correct to say that Paramount Chiefs ruled over other tribes. The existing Chieftainship Act, however, did not make any reference to Paramount Chiefs. The term was commonly used to refer to the Chiefs of the eight ex officio members of the House of Chiefs as mentioned in the Constitution. The Constitution had since been amended in an effort to remove such inequalities. The Chieftainship Act was also being reviewed to bring it into line with those amendments. It was estimated that Botswana had over 40 tribes and/or ethnic groups plus numerous new groups among naturalized citizens representing diverse countries and regions of origin. For that reason it was not realistic to have a House of Chiefs based purely on ethnicity. The Government had always held to geographic representation in order to cater to all communities.
Under the laws of Botswana, he said, each and every case of ill-treatment of any person, regardless of ethnicity, was investigated. The Government was particularly sensitive to the cases of Basarwa, due to the wide publicity given to their alleged ill-treatment, and also the fact that they were considered a vulnerable group. Even though such cases were always thoroughly investigated, so far none had revealed evidence of ill-treatment. The Government consulted for 10 years with the people who were relocated from the Central Kalahari Game Reserve. It was not true that they had been forcibly removed. If that were true, there would be none left. The Government had taken its decision in the belief that it was acting in the best interest of its people.
There were over 500 customary courts spread throughout the country. There was no generally applicable customary law. Each law was unique to particular tribes or communities and applied to those who were part of those communities.
Oral Questions Raised by the Rapporteur and Experts
LINOS-ALEXANDRE SICILIANOS, the Committee Expert serving as Country Rapporteur for Botswana, said that the Committee had had frequent contacts with the State party and many conversations regarding Constitutional reform. He congratulated Botswana on the inclusion of non-governmental organizations in the drafting of the report and on the setting up of the Inter Ministerial Committee to help it comply with its treaty obligations.
First, regarding the definition of discrimination in Botswana's Constitution, he wished to draw attention to the fact that in Section 3 of Botswana's Constitution, discrimination was prohibited, but that it did not cover all the types of racial discrimination identified in Article 1 of the Convention. More importantly, Section 15 of the Constitution contained many exceptions to that prohibition, including a provision that customary law could introduce distinctions on a tribal basis in its application. That appeared to him to be in direct contradiction with the Convention.
Additionally, in the Chieftainship Act the notion of tribe appeared to only refer to the eight Tswana tribes identified as such, whereas all others were considered to be communities. That situation was borne out by the High Court's Kamanakao judgment in which acknowledged that the terms "chief" and "tribe" are defined to refer only to the eight Tswana tribes. That designation had far-reaching consequences, going far beyond membership in the House of Chiefs, and affected land and other rights. It was for that reason that the Act had to be reformed. While assurances had been made that the reform would be carried out, it had not been done to date. The Chieftainship Act remained in contravention of both Botswana's Constitution, and of the Convention, Mr. Sicilianos said.
There was a pending complaint before the High Court in Botswana regarding relocation of the Basarwa that had not been resolved. In the meantime, reports of ill-treatment of the Basarwa and the cutting of social services to their communities had been received. Mr. Sicilianos could not understand how a solution could not be negotiated, given that there were only some 2,500 persons to be relocated and the game reserve in question was some 52,000 square kilometres, or a territory larger than Switzerland.
Refugees and asylum-seekers, despite the fact that the Refugee Act stipulated a 28-day period in which to consider and rule on their cases, in practice were systematically detained and treated under the prison's act, in some cases for a period of three to four years until their cases were heard. Those who were granted refugee status were still legally precluded from working in the formal sector and were also excluded from the HIV anti- retroviral programme and the mother-to-child HIV/AIDS transmission prevention programme. Mr. Sicilianos also requested more information on the issue of Zimbabwean immigration. He noted that there was a provision for prohibited immigrants in the law, and that the president could issue a decree to that effect. He wondered if an appeal procedure existed to challenge that presidential decree.
There was no State legal aid system, except the possibility to appoint a pro Deo counsel in death penalty cases, Mr. Sicilianos observed. That situation mainly affected non-Tswana tribes, and was counter to the Convention's requirements for non-discrimination in the carrying out of justice.
Other Experts asked if the Ombudsman received complaints of racial discrimination; and whether the majority voting system ensured greater representation within Parliament. They also touched upon the situation of the Basarwa who were relocated; rules for the issuance of hunting licenses and their enforcement; the lack of a definition of racial discrimination, as required by article 1 of the Constitution; the actual and legal situation regarding teaching in minority languages; the lack of work permits for refugees; why there were no Zimbabweans granted refugee status; and whether the smaller tribes could be given the possibility of direct representation in Parliament.
Committee Experts also asked about the effect of rapid, growing urbanization on ethnic groups; requested further details on differences in rights for those living in Tribal Territories and Crown Lands, if any; asked about the situation on the ground for minority ethnic women and women refugees; requested additional data on ethnic groups' participation in the National Assembly and other administrative bodies; inquired about treatment of refugees or illegal immigrants and the average length of their detentions; asked what civil recourse existed for cases of discrimination; inquired what was the actual consultation procedure that took place with the Basarwa to negotiate their relocation, and, in particular, was the standard of informed consent adhered to in that context; and what vision the Government had for the Basarwa's future, by 2016, say, as well as what vision that group might have for themselves in the same time frame.
Response by the Delegation
Mr. Skelmani said that the Government did not think that the Constitution allowed customary law to discriminate because everyone in that tribe or community was subject to that customary law. The problem arose when customary law involved chieftainship, and one of the chiefs of the so-called "paramount chiefs" imposed a Kgosana from one tribe on another, minority tribe. That situation, however, was subject to the outcome of the review of the Chieftainship Act. That review would also deal with the outcome of the Kamanakao Judgment. Indeed, section 15 (4) (d) of the Constitution was intended to protect the customary law of each community or tribe, and therefore their culture. The Government's exceptions or derogations were meant to protect the cultures of various communities rather than to discriminate. Customary law did not deal with discrimination, and did not have to, because the Penal Code, which could be enforced in the customary courts, was enacted to deal with discrimination. There was a right of appeal to a decision of a customary court to a higher customary court, as well as a right to appeal to the High Court, on a restricted basis.
It was true, the delegation said, that under the Constitution Amendment Act, which reconstituted the House of Chiefs, some members would be elected, others designated and five selected by the President. All of the members of the House of Chiefs would be equal, but the method of their appointment had been a compromise. The Government had never pretended that the chapter on that question was closed or that the debate ended here.
As previously stated, in Botswana there was no group right to land, the delegation stressed. Every individual could apply for and receive land anywhere in the country if it were available; it was irrelevant what an individual's tribal community was. In the Government's view, that lack of restriction owing to ethnic or tribal allegiance represented an improvement for the country, he said.
The Basarwa were relocated out of the Central Kalahari Game Reserve after 10 years of negotiations with them. There had been informed consent among those who were relocated: they moved out voluntarily and were compensated. The amount of the compensation had also been a product of those negotiations. Those who refused to do so were left alone. The relocation was completed in 2002, Mr. Skelmani noted. Thereafter, it was true that some who had been voluntarily relocated and compensated had returned in breach of their agreement. As far as the Government was aware those who exercised their right to take the case to the High Court were very few.
The Central Kalahari Game Reserve was established in 1961. Since relocation, anyone who had a legitimate purpose to go into the reserve could only do so by obtaining a permit. A budget for assistance to people within the Kalahari Reserve was not sustainable because they were scattered in very small settlements all over the Reserve; hence, the relocation exercise. There were other reasons for the relocation as well, for example, the conflict between the people in the Reserve and the wildlife there. The age of the hunter-gatherer was truly over, Mr. Skelmani observed. Wildlife had been depleted and the lifestyles of tribes had changed. Hunting was increasingly done for commercial purposes. Hunting licenses were issued free to those who were relocated, but only for restricted purposes, and not in the Central Kalahari Game Reserve.
Every Motswana spoke his or her own language. It was true, however, that only Setswana and English were presently being used as a medium of instruction in the schools. The delegation was not aware, however, of any case of dropouts on account of the use of Setswana and English only in the schools. Nevertheless, the Government had a new policy to teach up to grade five in the mother tongue of the various tribes. That policy remained to be implemented, however, because the logistics and the modalities were still being worked out.
As for the use of English in the courts, no one was at a disadvantage because of his or her language: interpretation was always provided. In the courts themselves interpreters were being sent for training and to sensitize them. The delegation noted, however, that difficulty remained in the need for interpretation before the actual trial procedure began, when the accused consulted with a lawyer, for example. Also, other than Pro Deo counsel provided in the High Court, there was no legal aid provided by the Government. That was owing to a lack of resources and did not affect Basarwa only.
Asylum-seekers were processed as soon as possible. But there were cases where there had been difficulties in establishing the facts, and further investigation had therefore been necessary. The 28-day limit was something to help the Government organize its work, but if it was not possible to make the appropriate determination within that time limit, it could not be helped. If further investigations were necessary it would not be proper to grant asylum without that information, and during that process the asylum-seeker remained in custody.
It was not true that refugees were precluded by law from working in the formal sector. A recognized refugee was allowed to work if there was employment. If they found a job, it was then up to the employer to apply for the necessary permit from the Government. It was true, on the other hand, that refugees were not presently included in the Anti-Retroviral Therapy Programme. One reason was that if one were put on therapy it had to be continued for life and the Government could not know whether the refugees would continue their therapy when they left Botswana. Also, there were insufficient resources, the delegation said.
Regarding immigrants, there was no government policy to ill-treat anyone, including immigrants. Where there had been ill-treatment, be it by police officers or anyone, appropriate measures had been taken, the delegation said. There was such a case before the courts currently involving some police officers and members of the Botswana Defence Force. Also, it was possible to appeal a presidential decree on immigrant status, as in the Kenneth Good case.
There was no disaggregated data on government aid to minorities. The ethnicity factor did not feature in the distribution of resources. One example was a programme for feeding children under the age of five. Age was the only criterion for qualifying. Another example was the Remote Area Development Programme that targeted marginalized groups.
Regarding political representation, members of Parliament were not elected on the basis of tribal groupings or ethnicity. In fact, many members of parliament did not originally come from the constituencies they represented. The electoral system was constituency-based and there was no proportional representation or ethnic representation. For the greater part, the candidates came from political parties, but a person could stand for election as an independent candidate as well.
Vision 2016 was a document, which had been called a social agreement, that set out the direction in which Botswana was moving. It was the result of extensive consultations between the Government and the people. The seven pillars of Vision 2016 took account of the wishes and expressions of the people's will. With regard to the question of whether the Basarwa's vision had been incorporated in that plan, the delegation said that the consultation tried to cover everybody. Not one community that he knew of had disagreed with the seven pillars set out in it, which had been distilled from the popular consultations. Whether that vision specifically included the Basarwa's wishes or not, he could not confirm. In that vein, however, it should be noted that the majority of the Basarwa living in the country were not living in the Kalahari Reserve, but were dispersed throughout it. Those who were in the Reserve were marginalized and their wishes did not necessarily represent those of the rest of the country.
In conclusion, the delegation stressed that it was willing and desirous of working with the Committee to move forward, but that the pace might not be so swift as could be desired. Botswana must ensure that the pace of reforms did not put undue strain on the new country and tear it apart.
Preliminary Remarks
LINOS-ALEXANDRE SICILIANOS, Committee Expert acting as Country Rapporteur for Botswana, thanked the delegation for the report and for the replies to the questions raised, which had been frank and open and had shed light on the matters raised. While observing that the delegation and the Committee had not always seen eye to eye on certain issues, he was pleased to observe that the delegation had shown some flexibility in a number of areas, particularly in regard to Constitutional reform, the Chieftainship Act, the introduction of mother-tongue education up to grade five, and the welcome acceptance of United Nations Special Rapporteurs' visits to the country. It would not, however, be appropriate to formulate any specific concluding observations at the moment, Mr. Sicilianos said, as the concluding observations would be the fruit of the common reflection of all the Committee members.
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For use of the information media; not an official record
of Racial Discrimination
6 March 2006
The Committee on the Elimination of Racial Discrimination has considered the fifteenth and sixteenth periodic reports of Botswana on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, P. C. T. Skelmani, Minister for Presidential Affairs and Public Administration of Botswana, said that Botswana fully recognized its commitment to the objectives of the Convention. Botswana was a young country, however, and, given its limited resources and level of development, it had had to put nation building and unification before cultural diversity. It was estimated that Botswana had over 40 tribes and/or ethnic groups plus numerous new groups among naturalized citizens representing diverse countries and regions of origin. The Government had always held to geographic representation in order to cater to all communities. One issue of contention in Botswana had been that some groups said that their languages were not promoted by the Government. There was already a new government policy in place to promote those languages in the near future. If any groups remained marginalized, that did not have to do with their ethnicity, but with other factors such as their lifestyle or their remoteness from centres with social and other facilities. The Government had elaborated the Remote Area Development Programme to address the special needs of those groups, such as the Basarwa, although it was true that programmes had not always produced the results the Government would have wished.
In preliminary concluding remarks, Linos-Alexandre Sicilianos, Committee Expert acting as Country Rapporteur for Botswana, said that while the delegation and the Committee had not always seen eye to eye, he was pleased to observe that the delegation had shown some flexibility in a number of areas, particularly in regard to Constitutional reform on the membership of the House of Chiefs, the Chieftainship Act, the introduction of mother-tongue education up to grade five, and the welcome acceptance of United Nations Special Rapporteurs' visits to the country.
The Committee will present its written observations and recommendations on the fifteenth and sixteenth periodic reports of Botswana, which were presented in one document, at the end of its session, which concludes on 10 March.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to consider individual communications in private and then, in a public meeting, to hear a report by Committee Expert Patrick Thornberry on draft harmonized guidelines for a common core document for all treaty bodies which are part of the proposed reforms for the Office of the High Commissioner for Human Rights.
Report of Botswana
Urbanization has been rapid in Botswana, with the number of people living in urban areas increasing from 9 per cent in 1971 to an estimated 50 per cent in 1999. The fifteenth and sixteenth periodic reports of Botswana, submitted in one document (CERD/C/495/Add.1), say that Botswana also has one of the highest per capita HIV/AIDS rates in the world and that crisis continues to put a great strain on the Government. A landlocked country in Southern Africa of 1.7 million people who speak some 30 languages, principally Setswana (78.2 per cent) and Ikalanga (7.9 per cent), the Tswana-speaking population is composed of various ethnic groups loosely referred to as the principal tribes, and other ethnic groups referred to as the minority tribes. In terms of numbers, some of the tribes referred to as minority may actually have a larger population than the majority or Principal tribes, which are named in the Constitution. Indeed, one area of dissatisfaction identified by minority groups in Botswana is the Tribal Territories Act, originally proclaimed by the British Government in 1899 and re-enacted in 1933, by which the tribal territories are defined in terms of the dominant tribes occupying them. That dissatisfaction is found, similarly, with representation in the House of Chiefs, which mirrors, in some ways, the tribal demarcation of the Tribal Territories Act. A third area of dissatisfaction is that English is the official language and Setswana is the national language. Some groups do not understand why Government media does not broadcast in minority languages or why minority languages are not taught in the schools.
The report notes that at the time of drafting of the Botswana Constitution, in 1965, the concern throughout Africa was for unity and efforts were made to play down tribal affiliations. Today, after conducting consultations with Batswana throughout the country, the Government has acknowledged that the realities that prevailed at the time of independence have changed. In 2000 the Balopi Commission was established to review laws considered by some to be discriminatory against the minority tribes, and a Bill amending those sections of the Constitution was introduced before the Parliament.
Presentation of Report
P. C. T. SKELMANI, Minister for Presidential Affairs and Public Administration, presenting the report of Botswana, said that Botswana fully recognized its commitment to the objectives of the International Convention on the Elimination of all Forms of Racial Discrimination. Commitment alone, however, was not enough: that commitment had to be translated into concrete action by way, for example, of domestic instruments. The pace at which such instruments could be translated into action, however, depended on the circumstances of each country, including its history, level of development, and the complexity of the issues being addressed.
Botswana was a young country and, given its limited resources and level of development, it had had to prioritize. It had had to put nation building and unification before cultural diversity. That was not to say that Botswana did not value cultural diversity or recognize that it could be an important element in promoting national unity. For that reason, Botswana was taking measures to promote language.
Botswana had many historical legacies that, if they could not be lived with, would take time to address. In that regard, Mr. Skelmani said that Botswana had worked progressively over the years to tackle laws and practices considered discriminatory by some, though the pace of the reforms, he acknowledged, had been seen as too slow or even defensive by some. Hence, there had been periodic displays of frustration by some members of the community. That was normal in a democracy and the Government had responded positively to such pressures.
The present report was the product of collaborative efforts between the State and non-State actors, as opposed to past reports. In preparing the report, account was taken of the Committee's concluding observations following the August 2002 review. In addition, the Government had set up an Inter Ministerial Committee on Treaties, Conventions and Protocols to facilitate the country's implementation and fulfilment of its reporting obligations to the international instruments to which it was a party.
Mr. Skelmani said he wished to clarify the use of the terms Tswana and Non-Tswana in various reports. A citizen of Botswana was called a Motswana, in the singular, and Batswana in the plural. The terms Motswana and Batswana were used in reports in the generic sense, without denoting ethnic identity or origin. When talking about Tswana and Non-Tswana, an impression was sometimes created, he said, that those who were not of the Tswana ethnic group did not speak Setswana, whereas in fact most did. The issue of contention was that some groups complained that their languages were not promoted by the Government. However, the Government already had a policy to promote those languages in the near future.
If any groups had remained marginalized, that did not have to do with their ethnicity, but with other factors such as their lifestyle or their remoteness from centres with social and other facilities. The Remote Area Development Programme had been elaborated to address the special needs of those groups, such as the Basarwa. It was also true to say that the programmes meant to address their needs had not always produced the results the Government would have wished, Mr. Skelmani said.
The Government's land policy had attracted international attention. In Botswana no group had exclusive rights to land. The laws provided that every citizen was entitled to land anywhere in the country if it were available, regardless of their ethnic or tribal origin. Entities to allocate land were not controlled by tribal administration, Mr. Skelmani noted. They implemented national laws that ensured there was no discrimination.
Historically, Mr. Skelmani said, it was correct to say that Paramount Chiefs ruled over other tribes. The existing Chieftainship Act, however, did not make any reference to Paramount Chiefs. The term was commonly used to refer to the Chiefs of the eight ex officio members of the House of Chiefs as mentioned in the Constitution. The Constitution had since been amended in an effort to remove such inequalities. The Chieftainship Act was also being reviewed to bring it into line with those amendments. It was estimated that Botswana had over 40 tribes and/or ethnic groups plus numerous new groups among naturalized citizens representing diverse countries and regions of origin. For that reason it was not realistic to have a House of Chiefs based purely on ethnicity. The Government had always held to geographic representation in order to cater to all communities.
Under the laws of Botswana, he said, each and every case of ill-treatment of any person, regardless of ethnicity, was investigated. The Government was particularly sensitive to the cases of Basarwa, due to the wide publicity given to their alleged ill-treatment, and also the fact that they were considered a vulnerable group. Even though such cases were always thoroughly investigated, so far none had revealed evidence of ill-treatment. The Government consulted for 10 years with the people who were relocated from the Central Kalahari Game Reserve. It was not true that they had been forcibly removed. If that were true, there would be none left. The Government had taken its decision in the belief that it was acting in the best interest of its people.
There were over 500 customary courts spread throughout the country. There was no generally applicable customary law. Each law was unique to particular tribes or communities and applied to those who were part of those communities.
Oral Questions Raised by the Rapporteur and Experts
LINOS-ALEXANDRE SICILIANOS, the Committee Expert serving as Country Rapporteur for Botswana, said that the Committee had had frequent contacts with the State party and many conversations regarding Constitutional reform. He congratulated Botswana on the inclusion of non-governmental organizations in the drafting of the report and on the setting up of the Inter Ministerial Committee to help it comply with its treaty obligations.
First, regarding the definition of discrimination in Botswana's Constitution, he wished to draw attention to the fact that in Section 3 of Botswana's Constitution, discrimination was prohibited, but that it did not cover all the types of racial discrimination identified in Article 1 of the Convention. More importantly, Section 15 of the Constitution contained many exceptions to that prohibition, including a provision that customary law could introduce distinctions on a tribal basis in its application. That appeared to him to be in direct contradiction with the Convention.
Additionally, in the Chieftainship Act the notion of tribe appeared to only refer to the eight Tswana tribes identified as such, whereas all others were considered to be communities. That situation was borne out by the High Court's Kamanakao judgment in which acknowledged that the terms "chief" and "tribe" are defined to refer only to the eight Tswana tribes. That designation had far-reaching consequences, going far beyond membership in the House of Chiefs, and affected land and other rights. It was for that reason that the Act had to be reformed. While assurances had been made that the reform would be carried out, it had not been done to date. The Chieftainship Act remained in contravention of both Botswana's Constitution, and of the Convention, Mr. Sicilianos said.
There was a pending complaint before the High Court in Botswana regarding relocation of the Basarwa that had not been resolved. In the meantime, reports of ill-treatment of the Basarwa and the cutting of social services to their communities had been received. Mr. Sicilianos could not understand how a solution could not be negotiated, given that there were only some 2,500 persons to be relocated and the game reserve in question was some 52,000 square kilometres, or a territory larger than Switzerland.
Refugees and asylum-seekers, despite the fact that the Refugee Act stipulated a 28-day period in which to consider and rule on their cases, in practice were systematically detained and treated under the prison's act, in some cases for a period of three to four years until their cases were heard. Those who were granted refugee status were still legally precluded from working in the formal sector and were also excluded from the HIV anti- retroviral programme and the mother-to-child HIV/AIDS transmission prevention programme. Mr. Sicilianos also requested more information on the issue of Zimbabwean immigration. He noted that there was a provision for prohibited immigrants in the law, and that the president could issue a decree to that effect. He wondered if an appeal procedure existed to challenge that presidential decree.
There was no State legal aid system, except the possibility to appoint a pro Deo counsel in death penalty cases, Mr. Sicilianos observed. That situation mainly affected non-Tswana tribes, and was counter to the Convention's requirements for non-discrimination in the carrying out of justice.
Other Experts asked if the Ombudsman received complaints of racial discrimination; and whether the majority voting system ensured greater representation within Parliament. They also touched upon the situation of the Basarwa who were relocated; rules for the issuance of hunting licenses and their enforcement; the lack of a definition of racial discrimination, as required by article 1 of the Constitution; the actual and legal situation regarding teaching in minority languages; the lack of work permits for refugees; why there were no Zimbabweans granted refugee status; and whether the smaller tribes could be given the possibility of direct representation in Parliament.
Committee Experts also asked about the effect of rapid, growing urbanization on ethnic groups; requested further details on differences in rights for those living in Tribal Territories and Crown Lands, if any; asked about the situation on the ground for minority ethnic women and women refugees; requested additional data on ethnic groups' participation in the National Assembly and other administrative bodies; inquired about treatment of refugees or illegal immigrants and the average length of their detentions; asked what civil recourse existed for cases of discrimination; inquired what was the actual consultation procedure that took place with the Basarwa to negotiate their relocation, and, in particular, was the standard of informed consent adhered to in that context; and what vision the Government had for the Basarwa's future, by 2016, say, as well as what vision that group might have for themselves in the same time frame.
Response by the Delegation
Mr. Skelmani said that the Government did not think that the Constitution allowed customary law to discriminate because everyone in that tribe or community was subject to that customary law. The problem arose when customary law involved chieftainship, and one of the chiefs of the so-called "paramount chiefs" imposed a Kgosana from one tribe on another, minority tribe. That situation, however, was subject to the outcome of the review of the Chieftainship Act. That review would also deal with the outcome of the Kamanakao Judgment. Indeed, section 15 (4) (d) of the Constitution was intended to protect the customary law of each community or tribe, and therefore their culture. The Government's exceptions or derogations were meant to protect the cultures of various communities rather than to discriminate. Customary law did not deal with discrimination, and did not have to, because the Penal Code, which could be enforced in the customary courts, was enacted to deal with discrimination. There was a right of appeal to a decision of a customary court to a higher customary court, as well as a right to appeal to the High Court, on a restricted basis.
It was true, the delegation said, that under the Constitution Amendment Act, which reconstituted the House of Chiefs, some members would be elected, others designated and five selected by the President. All of the members of the House of Chiefs would be equal, but the method of their appointment had been a compromise. The Government had never pretended that the chapter on that question was closed or that the debate ended here.
As previously stated, in Botswana there was no group right to land, the delegation stressed. Every individual could apply for and receive land anywhere in the country if it were available; it was irrelevant what an individual's tribal community was. In the Government's view, that lack of restriction owing to ethnic or tribal allegiance represented an improvement for the country, he said.
The Basarwa were relocated out of the Central Kalahari Game Reserve after 10 years of negotiations with them. There had been informed consent among those who were relocated: they moved out voluntarily and were compensated. The amount of the compensation had also been a product of those negotiations. Those who refused to do so were left alone. The relocation was completed in 2002, Mr. Skelmani noted. Thereafter, it was true that some who had been voluntarily relocated and compensated had returned in breach of their agreement. As far as the Government was aware those who exercised their right to take the case to the High Court were very few.
The Central Kalahari Game Reserve was established in 1961. Since relocation, anyone who had a legitimate purpose to go into the reserve could only do so by obtaining a permit. A budget for assistance to people within the Kalahari Reserve was not sustainable because they were scattered in very small settlements all over the Reserve; hence, the relocation exercise. There were other reasons for the relocation as well, for example, the conflict between the people in the Reserve and the wildlife there. The age of the hunter-gatherer was truly over, Mr. Skelmani observed. Wildlife had been depleted and the lifestyles of tribes had changed. Hunting was increasingly done for commercial purposes. Hunting licenses were issued free to those who were relocated, but only for restricted purposes, and not in the Central Kalahari Game Reserve.
Every Motswana spoke his or her own language. It was true, however, that only Setswana and English were presently being used as a medium of instruction in the schools. The delegation was not aware, however, of any case of dropouts on account of the use of Setswana and English only in the schools. Nevertheless, the Government had a new policy to teach up to grade five in the mother tongue of the various tribes. That policy remained to be implemented, however, because the logistics and the modalities were still being worked out.
As for the use of English in the courts, no one was at a disadvantage because of his or her language: interpretation was always provided. In the courts themselves interpreters were being sent for training and to sensitize them. The delegation noted, however, that difficulty remained in the need for interpretation before the actual trial procedure began, when the accused consulted with a lawyer, for example. Also, other than Pro Deo counsel provided in the High Court, there was no legal aid provided by the Government. That was owing to a lack of resources and did not affect Basarwa only.
Asylum-seekers were processed as soon as possible. But there were cases where there had been difficulties in establishing the facts, and further investigation had therefore been necessary. The 28-day limit was something to help the Government organize its work, but if it was not possible to make the appropriate determination within that time limit, it could not be helped. If further investigations were necessary it would not be proper to grant asylum without that information, and during that process the asylum-seeker remained in custody.
It was not true that refugees were precluded by law from working in the formal sector. A recognized refugee was allowed to work if there was employment. If they found a job, it was then up to the employer to apply for the necessary permit from the Government. It was true, on the other hand, that refugees were not presently included in the Anti-Retroviral Therapy Programme. One reason was that if one were put on therapy it had to be continued for life and the Government could not know whether the refugees would continue their therapy when they left Botswana. Also, there were insufficient resources, the delegation said.
Regarding immigrants, there was no government policy to ill-treat anyone, including immigrants. Where there had been ill-treatment, be it by police officers or anyone, appropriate measures had been taken, the delegation said. There was such a case before the courts currently involving some police officers and members of the Botswana Defence Force. Also, it was possible to appeal a presidential decree on immigrant status, as in the Kenneth Good case.
There was no disaggregated data on government aid to minorities. The ethnicity factor did not feature in the distribution of resources. One example was a programme for feeding children under the age of five. Age was the only criterion for qualifying. Another example was the Remote Area Development Programme that targeted marginalized groups.
Regarding political representation, members of Parliament were not elected on the basis of tribal groupings or ethnicity. In fact, many members of parliament did not originally come from the constituencies they represented. The electoral system was constituency-based and there was no proportional representation or ethnic representation. For the greater part, the candidates came from political parties, but a person could stand for election as an independent candidate as well.
Vision 2016 was a document, which had been called a social agreement, that set out the direction in which Botswana was moving. It was the result of extensive consultations between the Government and the people. The seven pillars of Vision 2016 took account of the wishes and expressions of the people's will. With regard to the question of whether the Basarwa's vision had been incorporated in that plan, the delegation said that the consultation tried to cover everybody. Not one community that he knew of had disagreed with the seven pillars set out in it, which had been distilled from the popular consultations. Whether that vision specifically included the Basarwa's wishes or not, he could not confirm. In that vein, however, it should be noted that the majority of the Basarwa living in the country were not living in the Kalahari Reserve, but were dispersed throughout it. Those who were in the Reserve were marginalized and their wishes did not necessarily represent those of the rest of the country.
In conclusion, the delegation stressed that it was willing and desirous of working with the Committee to move forward, but that the pace might not be so swift as could be desired. Botswana must ensure that the pace of reforms did not put undue strain on the new country and tear it apart.
Preliminary Remarks
LINOS-ALEXANDRE SICILIANOS, Committee Expert acting as Country Rapporteur for Botswana, thanked the delegation for the report and for the replies to the questions raised, which had been frank and open and had shed light on the matters raised. While observing that the delegation and the Committee had not always seen eye to eye on certain issues, he was pleased to observe that the delegation had shown some flexibility in a number of areas, particularly in regard to Constitutional reform, the Chieftainship Act, the introduction of mother-tongue education up to grade five, and the welcome acceptance of United Nations Special Rapporteurs' visits to the country. It would not, however, be appropriate to formulate any specific concluding observations at the moment, Mr. Sicilianos said, as the concluding observations would be the fruit of the common reflection of all the Committee members.
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