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Experts of the Committee against Torture Commend Botswana on the Ratification of Core Human Rights Treaties, Ask Questions about the Death Penalty and the Ombudsman’s Office
20 July 2022
The Committee against Torture this afternoon concluded its consideration of the initial report of Botswana on its efforts to implement the provisions of the Convention against Torture, with Committee Experts commending the State for ratifying core human rights treaties, while asking questions about the death penalty and the role of the Ombudsman’s office.
Ilvija Puce, Committee Expert and Country Co-Rapporteur, said the Committee commended the commitment expressed by the Government of Botswana by ratifying core human rights treaties. However, these treaties needed to be aligned with domestic legislation, which was yet to take place.
Ms. Puce said the death penalty was perceived as a painful issue for the country, as Botswana was one of the few countries in Africa that still utilised this practice. She requested information about the discussion which was taking place on this issue, and which stakeholders were involved? She noted that the Convention did not directly prohibit the death penalty, however, there were many circumstances around the death penalty in Botswana which fell directly under the Convention. Ms. Puce said that death by hanging was considered to be torture, and the fact that persons were not aware when the penalty would be enacted was a form of psychological torture. There was also no opportunity for the condemned to have a last meeting with their family. Why was Botswana keeping these practices, despite knowing that it created an atmosphere of fear for those awaiting the punishment and others?
Ms. Puce said it was crucial to establish a national human rights institution, noting that Botswana had an Ombudsman’s office. Could the delegation provide information about the law on the national human rights institution and what stage it was at? Did the mandate of the Ombudsman’s office cover police, prisons, or psychiatric hospitals? Were there any reasons why the Paris Principles were not observed in this law?
The delegation said that the death penalty continued to be the law in Botswana. These were private processes which the delegation considered to be very sensitive, as it involved the loss of life. The courts were not enthusiasts of the death penalty, and it was not imposed lightly. Those cases which resulted in the death penalty were of the highest depravity and the most serious. The process sometimes took a while and there was a lot of paperwork which needed to be completed. Consultations on this issue would take place and it was hoped that the people of Botswana would come to a point where they would understand that the death penalty was not the best way to go ahead.
Concerning the Ombudsman’s office, the delegation said that Botswana was committed to creating a safe space for meaningful discussion with civil society organizations. The restructuring of the office of the Ombudsman was ongoing. In its current context, the office handled issues from prisons and police, including assaults and the denial of medical services. Complaints from psychiatric offices were forwarded to the Ombudsman. Botswana had not yet received the international rating of the Ombudsman’s office, so at present, it could not be ascertained whether it complied with the Paris Principles or not.
In concluding remarks, Claude Heller, Committee Chairperson, said the stance of the Committee was to recommend that States adopt a moratorium on the death penalty, as a precursor to its abolition. Mr. Heller thanked the delegation for travelling to Geneva and hoped this would be the first step in a path of cooperation between Botswana and the Committee.
Mr. Shamukuni, in concluding remarks, said that Botswana welcomed all recommendations by the Committee and remained committed to upholding the rule of law and ensuring that all citizens of Botswana were able to fully enjoy their human rights. Mr. Shamukuni expressed sincere appreciation to the Committee for considering Botswana’s initial report.
The delegation of Botswana consisted of representatives of the Ministry of Justice; the Ministry of Foreign Affairs; the Ministry of Defense and Security; the Ministry of Local Government and Rural Development; the Ministry of Labour and Home Affairs; the Ministry of Health; the Botswana Prisons Service; the Botswana Police Service; the Botswana Defense Force; and the Permanent Mission of the Botswana to the United Nations Office at Geneva.
The webcast of the Committee against Torture meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Committee against Torture’s seventy-fourth session can be found here.
The Committee will next meet at 10 a.m. on Tuesday, 26 July, to hold a meeting on follow-up to articles 19 and 22 and to reprisals.
Report
The Committee has before it the initial report of Botswana (CAT/C/BWA/1).
Presentation of Report
MACHANA RONALD SHAMUKUNI, Minister of Justice of Botswana and head of the delegation, said that Botswana subscribed to the ethos of democracy and respect for human rights, and had established a standing inter-ministerial committee on treaties, conventions and protocols. This body met monthly to monitor compliance with and adherence to international agreements, including to treaty bodies. In 2020, the Government established the National Human Rights Committee, which was comprised of Government Ministries and civil society organizations and had helped to draft Botswana’s draft Comprehensive Human Rights Strategy and National Action Plan. The human rights recommendations tracking database was developed to assist the Government in following up the implementation of recommendations emanating from human rights treaty bodies.
Strengthening the country’s structures had resulted in Botswana meeting all reporting obligations to treaty bodies, including the Convention against Torture. Botswana hosted the Working Group on Arbitrary Detention in July 2022. In April 2022, issues of justice were de-linked from the former Ministry of Defence, Justice and Security through the establishment of a dedicated Ministry of Justice, which was mandated, among others, to specifically deliver on the protection and promotion of human rights.
Mr. Shamukuni said that Botswana’s ratification of the Convention signified the country’s commitment to continue governing the affairs of the nation using a human rights-based approach. Although the Penal Code did not incorporate the crime of torture as defined by the Convention, other pieces of legislation extending to the military justice system did, and violations of those acts rendered perpetrators liable to prosecution and punishment. Regulatory provisions relating to the prohibition of torture were found in the legislation, attracting disciplinary sanctions to be imposed on a perpetrator of torture. Furthermore, any person or prisoner who reported being subjected to torture had the right to institute a court process claiming damages against the Government. On access to justice, substantive and procedural justice was guaranteed to all aggrieved persons under the Constitution.
Even during the height of the COVID-19 pandemic, the Government had introduced measures to ensure continued access to justice, including virtual courts, additional shelters, and the introduction of gender-based violence toll-free lines, among other measures.
Mr. Shamukuni said that upon ratification of the Convention, Botswana had entered a reservation regarding article 1, which permitted the infliction of any form of punishment, including the death penalty and corporal punishment, as possible sentences. This remained the legal position in Botswana to date. A major legislative development was the ongoing comprehensive constitutional review process, commissioned with the aim of consulting its populace on what they wanted changed, retained, or introduced; this was due to be presented to the Government before the end of 2022. Mr. Shamukuni concluded by reiterating Botswana’s commitment to the implementation of the Convention and said the delegation stood ready to consider the recommendations of the Committee. Mr. Shamukuni appealed to international partners to provide the necessary technical assistance to help Botswana in the implementation of the Convention.
Questions by Committee Experts
ILVIJA PUCE, Committee Co-Rapporteur, said the Committee was pleased to learn about Botswana’s cooperation with other United Nations mechanisms. The Committee commended the commitment expressed by the Government, by ratifying core human rights treaties, including the Convention on the Rights of the Child, the Convention of the Rights of Persons with Disabilities, and the Convention on the Elimination of Discrimination against Women, among others. However, these treaties needed to be aligned with domestic legislation, which was yet to take place. A process of domestication was outlined in the report; the Expert asked what stage this process was at currently, and what was the estimated timeframe for the domestication of the Convention?
TODD BUCHWALD, Committee Co-Rapporteur, said the report was well written and well organised. The Committee was concerned about the absence of a dedicated law with a dedicated definition of torture, which could create loopholes for impunity. Did the other pieces of legislation previously mentioned contain an actual definition of torture, which matched that in the Convention? Was there a requirement under these laws that if torture was tried as an assault case, a particularly harsh penalty would be applied? Did the Police Act, Penal Code and other legislation include language stating that no exceptional circumstances could be used to justify violations? Did current laws have provisions that ensured compliance with the full range of obligations applied under the Convention? Mr. Buchwald noted that the penalties discussed for cases of torture seemed quite low; were there any prospects for amending this legislation?
Mr. Buchwald asked if the delegation could provide further explanation on the role of the customary courts in Botswana? To what extent were they required to act in line with international law, particularly in line with the Convention? Were the judges in the customary courts in a position to discern the particulars of what the Convention required? If accused persons did not have a lawyer in the customary courts, how were they able to utilise their rights to defend themselves? Did the rule that torture-induced evidence could not be used in court also apply in customary courts? Mr. Buchwald noted the 20-year statute of limitations, stating that while this was not insignificant, statute of limitations should not be applied to torture. Were there plans to change this? Could more information be provided on section seven paragraph two and what it was interpreted to mean? Did this section create a carve out for torture done for the purpose of punishment? What were the pre-1996 laws? What needed to be exempted? It was recognised that the prohibition against torture was also a part of customary international law. Was there a possibility of modifying section seven of the Constitution, which would be a straightforward way of eliminating the effects of the reservation?
Mr. Buchwald said that under the Criminal Procedure, it appeared that evidence was only excluded if it was a confession coerced by torture. Was this rule sufficiently broad to cover other statements, not just confessions? The report stated that Botswana’s courts had jurisdiction on all offences committed in Botswana. Did Botswanan courts have jurisdiction of crimes of torture committed outside of Botswana, for example for Botswana nationals? Was there legislation which gave jurisdiction over such cases? What was the provision and what did it say? Could more information be provided on rehabilitation for child victims of torture? Were specific policies and programmes in place to ensure rehabilitation support for women, trafficking victims, and other vulnerable people who were victims of torture? Did these programmes include psychological support? Was there a system in place to monitor the effectiveness of the system?
Mr. Buchwald said the Committee believed that the right to compensation should not be dependent on the identification of a perpetrator. How did Botswana’s laws address the harms suffered by a torture victim, pending the completion of any criminal case, in cases where the victim was not in a position to pursue a case, or where the perpetrator could not be identified? Could more information be provided about how members of the non-governmental organization council were appointed? Could the Committee provide a general overview on how this Council operated? Regarding guaranteed access to a lawyer for asylum seekers, the report stated that there was no right to a lawyer until the refugee law came into enactment. What was the timeline for this? Would an asylum seeker be able to receive a lawyer for free in the interim, if they could not afford one themselves? Could the delegation describe tangible steps which helped vulnerable asylum seekers at the border to be identified? Was there any training given to border officials? Regarding the visit of the Working Group on Arbitrary Detention to Botswana earlier this month, could views be shared about the preliminary findings?
ILVIJA PUCE, Committee Co-Rapporteur, said the death penalty was perceived as a painful issue for Botswana, which was one of the few countries in Africa that still utilised this practice. Ms. Puce asked the delegation to inform the Committee about the discussion which was taking place on this issue, and which stakeholders were involved in this discussion? How would this discussion be conducted? She noted that the Convention did not directly prohibit the death penalty, however, there were many circumstances around the death penalty in Botswana which fell directly under the Convention. Ms. Puce said that death by hanging was considered to be torture, and the fact that persons were not aware when the penalty would be enacted was a form of psychological torture. There was also no opportunity for the condemned to have a last meeting with their family. Why was Botswana keeping these practices, despite knowing that it created an atmosphere of fear for those awaiting the punishment and others?
Ms. Puce said statistics were very important. The Committee had heard that police brutality was widespread and high, but if there were no statistics, no discussions could be had. Was there any methodology in place to gather statistics on such issues, and if so, who was doing this? Was there an oversight mechanism? Was there a body which gathered such information to create a picture of what happened in the country?
Ms. Puce said it was crucial to establish a national human rights institution, noting that Botswana had an Ombudsman’s office. Could the delegation provide information about the law on the national human rights institution and what stage it was at? Did the mandate of the Ombudsman’s office cover police, prisons, or psychiatric hospitals? Were there any reasons why the Paris Principles were not observed in this law? Did the incoming human rights institution have additional budget lines? How many people were envisaged to conduct this work? Was there any structure already in place? Were regional offices envisaged? Were there mandates to conduct unannounced visits to places of detention?
What were the complaint mechanisms for people who had been mistreated by police? How did people know about the existence of these mechanisms? How did this work in psychiatric hospitals? Regarding the law on legal aid, Ms. Puce asked if a person could not afford a lawyer, did the State provide a lawyer? Could more information be provided about the responsibility of providers of legal aid? Regarding police detention, was the family allowed to visit persons who were detained? Who decided if a person in detention needed medical aid? Who provided the medical aid?
Another Committee Expert asked for an update on the situation of juveniles and women in detention, especially in terms of medical care, employment and vocational activities? Were there particular developments concerning the status and rights of mothers with children in detention? The Expert asked about medical care in prisons, including the shortage of staff, medical equipment, and measures aiming to prevent COVID-19? Were there any developments concerning the rights and treatment of prisoners with HIV/AIDS, drug users and people with infectious diseases?
Responses by the Delegation
MACHANA RONALD SHAMUKUNI, Minister of Justice of Botswana and head of the delegation, said that the Government of Botswana subscribed to the dualist system. Consultations on the death penalty specifically had not yet commenced. However, this was a subject of ongoing debate, and was being discussed within the review of the Constitution, and there would be further public discussions in this area.
The delegation said that the Government of Botswana was committed to creating a safe space for meaningful discussion with civil society organizations. The national human rights coordination committee had recently been added, which met regularly and discussed issues of ratification and reporting. Meetings were held between this body and umbrella bodies of civil society organizations, with information being disseminated to constituencies. The restructuring of the office of the Ombudsman was ongoing. In its current context, the office handled issues from prisons and police, including assaults and the denial of medical services. Complaints from psychiatric offices were forwarded to the Ombudsman. Botswana had not yet received the international rating of the Ombudsman’s office, so at present, it could not be ascertained whether it complied with the Paris Principles or not. The budget of the Ombudsman’s office had been increased this year, and its jurisdiction was spread across the country.
If infants were born in a prison and had been weaned, and if the officer in charge was satisfied that there was a relative or friend who could properly support the child, the child would be handed over, if the mother agreed. Expectant women prisoners were enrolled in prenatal care and postnatal care was also provided in the prisons, as well as early childhood care. Juveniles were offered the opportunity to participate in a range of vocational programmes, including carpentry, gardening and computer literacy. Every prisoner entering prison was screened for early detection of communicable diseases and was treated accordingly.
Addressing the questions on the customary courts, the delegation said that the Botswanan customary courts were different from others around the world. In Botswana, these courts were hybrid institutional structures and were regulated by statutes and procedures. They existed in a hierarchy which was not parallel to the courts of general jurisdiction. Customary courts had limited jurisdiction which was curtailed by the customary courts act and the Constitution. There were many offences which these courts could not hear and needed to be taken to courts of jurisdiction which applied the Penal Code. Judges in customary courts received regular training on issues of procedure. Decisions of customary courts were appealable to magistrate’s courts. Attorneys were not permitted to appear in customary courts. An accused person had the right to transfer their case from a customary court to a magistrate’s court at any point.
MACHANA RONALD SHAMUKUNI, Minister of Justice of Botswana and head of the delegation, said that the preliminary report of the Working Group on Arbitrary Detention was still under consideration by the Government so the delegation could not comment on it.
The delegation said that there was currently no central database on cases of torture, or a mechanism which sought to address data collection. Different institutions, including the national psychiatric hospital and the police, had their own data collection processes. There was a need to disaggregate data at the national level and collate this into a national database, and technical assistance in this regard would be appreciated. Every prisoner admitted to prison was interviewed by the officer in charge. During this interview, issues of health would be raised, which would be dealt with by the officer in charge and the medical officer.
In 2016, the “Treat for All” programme was introduced in Botswanan prisons, which provided all HIV positive prisoners with medication. To date 96 per cent of prisoners in Botswanan prison facilities had been vaccinated against COVID-19. There were currently no programmes in place aimed at dealing with drug addiction in prisons. Prisoners showing signs of addiction were referred to psychiatric facilities for treatment. There was a rigorous complaints procedure in place within the prisons which involved prisoners submitting their complaints, which were then documented and presented to the Minister. Prison officers were duty-bound to meet prisoners regularly to determine if there were any issues which needed to be addressed.
Psychiatric hospitals offered a transparent process for lodging complaints. Complaints were thoroughly investigated, and perpetrators were bought to account. Non-governmental organizations provided different services to victims of human trafficking and provided psychological support to address grief and trauma. Three centres were strategically placed throughout Botswana to provide care and support to trafficking victims.
The Government agreed on the importance of human rights training for law enforcement agencies, prosecutors and judges, with these professionals receiving training before entering into service. Most pieces of legislation in Botswana were silent on the definition of torture, however, the delegation believed that other instruments, including treaties, sufficiently covered obligations under the Convention. The Convention did not stipulate which sentences should be attached to which crime; therefore, depending on the gravity of the offence, national legislation provided appropriate penalties. The Police Act did not offer any exceptions for the prohibition of torture. The reservation to section seven two enabled Botswana to be party to the Convention and could not be removed. Botswanan courts had extra-territorial jurisdiction in torture cases committed outside the country.
The Refugee Control Act had significantly moved ahead, with a bill currently undergoing interrogation by key stakeholders, including the United Nations High Commissioner for Refugees. The delegation was hopeful that the bill would come to light in the next financial year. Legal representation was currently not allowed during the refugee status application, however, the bill contained provisions which would make this possible. It was still being determined if attorneys would be provided pro-bono, or whether asylum seekers would finance their own legal representation. If the bill became an act, asylum seekers would be informed of their rights under the amended Refugee Control Act.
Asylum seekers came to Botswana from as far away as the Democratic Republic of Congo, which posed a challenge for interpretation, due to language differences. There were a few reliable interpreters who assisted the Committee in this regard, specifically in Swahili, which was a key language spoken by many asylum seekers. Government officers at the border post received training on how to identify and deal with vulnerable persons, including those who were humanly trafficked, or asylum seekers. Legal aid was regulated by the legal aid act, which outlined who should be assisted. Attorneys then assessed and determined who should receive legal aid, based on a means test. Children were also entitled to receive legal aid, and this process was instigated by social workers if a parent or guardian was not present.
Statements obtained under duress were inadmissible; this was not restricted to confession statements only. Any statement which was introduced to court needed to meet key criteria, including relevance and materiality. In cases where the Ministry of Justice concluded that the removal of a refugee was suitable, such as in cases where the person had been accused of a serious crime, or was a danger to the community, this person could be sent back to where they came from. There were no grounds to returning a person to a country if they faced a risk of being tortured. The delegation was open to receive proposals from the Committee which would help to fortify the Refugee Control Act.
Questions by Committee Experts
ILVIJA PUCE, Committee Expert and Country Co-Rapporteur, said the answers provided by the delegation would be helpful for concluding observations. Ms. Puce asked about conditions surrounding the death penalty; how was this executed? The conditions surrounding the death penalty should not amount to torture. How far had the engagement of non-governmental organizations envisaged the appointment of members of the national human rights institution? Which age – 8 or 14 – was the age of criminal responsibility? Why were there two ages in Botswanan law?
What was the reason that people who were settled in refugee camps were not allowed to move? Did people live there for decades and for generations, without any prospect to settle outside the camp, as information provided suggested? There were reports that children in prisons were not provided with appropriate resources; were there plans to improve this situation? What plans did the Government have to provide prisoners with meaningful activities to allow for rehabilitation? Had changes in law considered accumulating family prison visits to account for long travel time to the prison?
TODD BUCHWALD, Committee Expert and Country Co-Rapporteur, asked about the reservation to section seven, stating that his understanding from the responses was that this reservation was needed to protect the ability to use corporal punishment and the death penalty. Could the reservation apply only to paragraph two section seven? This would still ensure the use of corporal punishment and the death penalty for Botswana. This was not ideal from the Committee’s point of view, but it would narrow the reservation.
How was the reduction of diet in prison assessed, and whether it was proportional to the gravity of discipline required? Was it observed by a medical professional? How often was this punishment used in practice? On extra-territorial jurisdiction for cases of torture, Mr. Buchwald noted that any extradition agreement was a way to get hold of a person, but did not create jurisdiction itself. It did not seem to him when he read the legislation that Botswana had legislation on extra-territorial jurisdiction for cases of torture. Regarding the three-year statute of limitation on torture claims, was this politically possible?
ILVIJA PUCE, Committee Expert and Country Co-Rapporteur, asked about death in police custody, citing reports of people hanging themselves in custody. Ms. Puce asked about investigations into such incidents and any conclusions drawn?
Responses by the Delegation
The delegation said that regarding the request to limit the reservation to section seven paragraph two, this would not provide the adequate safeguards for Botswana. Members of the Botswanan Defence Forces could be tried for offences they committed outside Botswana. The Penal Code stated that a person under the age of eight years was not criminally responsible, nor was a person under the age of 14 years, unless they knew at the time that the act should not be committed.
The refugee camp was structured as a village and contained a primary school, preschool facilities, a clinic, and a police station. The children in the centres for illegal immigrants were not housed alone; they came with their parents. Prisons were currently places of rehabilitation and provided elaborate programmes in this regard, including in construction, trade, agriculture, and horticulture. Regarding reduction of diet in prison, this issue did form part of the law as one of the punishments which may be enacted upon a prisoner who had committed a prison offence. Once the punishment had been ordered, a medical practitioner was engaged to ensure the prisoner could physically and mentally undergo such punishment. If it was deemed this was not the case, another punishment would be awarded. The prisoner could also request a different punishment of light manual labour. Regarding the accumulation of visiting hours at prisons, the delegation would consider looking into whether this could be revised.
The delegation said there was possibility for laws around corporal punishment in schools to be amended, and this was being reviewed. The death penalty continued to be the law in Botswana. These were private processes which the delegation considered to be very sensitive, as it involved the loss of life. The courts were not enthusiasts of the death penalty, and it was not imposed lightly. Those cases which resulted in the death penalty were of the highest depravity and the most serious. The process sometimes took a while and there was a lot of paperwork which needed to be completed. The death penalty was popular in the country. Consultations on the death penalty would take place and it was hoped that the people of Botswana would come to a point where they would understand that the death penalty was not the best way to go ahead.
If ever there was a death in police custody, investigations were conducted, as this death was deemed unnatural. It would then be decided if the file would be closed or if a hearing would be conducted on the matter.
Question by a Committee Expert
TODD BUCHWALD, Committee Expert and Country Co-Rapporteur, asked again about the death penalty, reiterating the points that the family was not notified, asking if society would be amendable to monitoring some of the practices that went with this?
Response by the Delegation
MACHANA RONALD SHAMUKUNI, Minister of Justice of Botswana and head of the delegation, said there would be room for taking these comments into consideration and attempt to meet some of the expectations.
Closing Remarks
CLAUDE HELLER, Committee Chairperson, said the stance of the Committee was to recommend that States adopt a moratorium on the death penalty, as a precursor to its abolition. Mr. Heller thanked the delegation for travelling to Geneva and hoped this would be the first step in a path of cooperation between Botswana and the Committee. The Committee stood ready to assist Botswana wherever they could and was grateful for the openness of the delegation, which had made the dialogue very constructive.
MACHANA RONALD SHAMUKUNI, Minister of Justice of Botswana and head of the delegation, thanked the Chair for the friendly and able matter the sessions were facilitated. The review was timely, as it came after the establishment of the new Ministry of Justice. Botswana welcomed all recommendations by the Committee and remained committed to upholding the rule of law and ensuring that all citizens of Botswana were able to fully enjoy their human rights. Mr. Shamukuni expressed sincere appreciation to the Committee for considering Botswana’s initial report.
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