Botswana must urgently embrace further safeguards against arbitrary detention for all – UN experts

GABORONE (15 July 2022) – Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit to the country.

"We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties”, the experts said in a statement at the end of the visit.

The Working Group welcomed amendments to the Ombudsman’s Act to expand the mandate of the Office to include a wider human rights remit and the commitment of required financial resources. The experts urged the Government to operationalise the Act without further delay.

The experts observed that most of those subject to criminal proceedings were not represented by a lawyer and legal aid was generally available only in civil matters and for those facing capital punishment. “Lawyers are excluded from investigative interviews. This is a significant impediment to protecting the freedom from arbitrary detention. The role of lawyers in safeguarding against instances of arbitrary detention needs to be entrenched in law and in practice in Botswana,” the experts said.

To further its efforts to divert boys and girls from the criminal justice system, the experts also urged the Government to effectively employ measures of dispositions including counseling, education and vocational training and other alternatives to institutional care.

The Working Group expressed serious concern over Botswana’s policy to automatically detain irregular migrants, often indefinitely and in dire conditions. “Detention in the course of migration must be an exception and is only permissible for the shortest period of time, following an individualised assessment of the need to detain,” the experts said.

They called upon the Government to provide durable, human rights-based solutions for all migrants in Botswana.

The Working Group also urged the Government of Botswana to accelerate its efforts to pass the Mental Health Bill.

“The Mental Disorder Act of 1971 which lacks robust safeguards against arbitrary detention, must be amended to reflect especially article 9 of the International Covenant on Civil and Political Rights and article 14 of the Convention on the Rights of Persons with Disabilities,” the experts said. “It is essential that appropriate community-based services are made available to people with psycho-social disabilities, including those who committed crimes.”

The Working Group noted that corporal punishment is a recognised form of punishment under Botswana’s Penal Code and urged the Government to reconsider the continued existence and application of this form of punishment. “Corporal punishment is reminiscent of legalised torture,” the experts said.

The Working Group also called for the imposition of a moratorium on the death penalty in Botswana, with a view to its abolishment.

During the visit, from 4 to 15 July, the delegation – Elina Steinerte and Mumba Malila - met Government officials, lawyers, civil society representatives and other stakeholders. They visited 19 places of detention, interviewing over 100 people deprived of their liberty.

A final report on the visit will be presented to the Human Rights Council in September 2023.