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African Commission on Human and Peoples' Rights

Concluding Observations and Recommendations - Botswana: 2nd & 3rd Periodic Report, 2011-2015

Adopted at 26th Extraordinary Session July 16 to July 30 , 2019 Banjul,Gambia.



I.                               RECOMMENDATIONS

1.      In view of the foregoing, the Commission makes a number of recommendations to the Government of Botswana.

Reporting obligations and cooperation with the Commission

2.      Botswana should:

Ensure that Periodic Reports to the Commission are submitted every two years in terms of Article 62 of the African Charter;

In the next Report, provide information on the specific issues which were deferred during consideration of the Periodic Report.

Ratification of regional and international instruments

3.      Botswana should consider ratifying the regional and international human rights instruments which it is yet to ratify, including:

The Protocol to the African Charter on Human and Peoples’ Rights on the rights of women in Africa;

The Protocol to the African Charter on Human and Peoples’ Rights Establishing the African Court on Human and Peoples’ Rights;

The African Youth Charter;

The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa;

The African Charter on Democracy, Elections and Governance;

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa;

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa;

The Convention for the Protection of All Persons from Enforced Disappearance;

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

The Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming for the Abolition of the Death Penalty;

The International Covenant on Economic, Social and Cultural Rightsand its Optional Protocol; and

The Convention on the Rights of Persons with Disabilities and its Optional Protocol.

Adoption of legislative or other measures to give effect to the African Charter

4.      Botswana should:

Expedite the revision and enactment of the following laws and policies to enhance enjoyment of human rights:

-          The Ombudsman Act, to confer a human rights mandate on the Office of Ombudsman;

-          The Prisons Act, relating to visitation rights;

-          A law a on the rights of persons with disability;

-          Enact the Bill on Declaration of Assets; and

-          Enact the Education and Training Bill.

Finalize the process of turning the Ombudsman’s Office into a hybrid institution with functions specifically dedicated to the promotion and protection of human rights, in compliance with the Principles relating to the Status of National Institutions (the Paris Principles).

CIVIL AND POLITICAL RIGHTS

Equality

5.      Botswana should take all appropriate legislative and other measures to ensure equal representation of women in decision making positions at all levels including the Government and Parliament.

Death Penalty

6.      Botswana should:

Consider a moratorium on the use of the death penalty with a view to abolishing it, in conformity with the Commission’s Resolutions ACHPR/Res.416(LXIV)2019, ACHPR/Res.42(XXVI)99 and ACHPR/Res.136(XXXXIV)08;

Urgently consider commuting the verdicts of all prisoners sentenced to capital punishment to life imprisonment;

Ensure compliance with minimum standards of fairness in the clemency procedure, as provided in the Commission’s General Comment on the African Charter on Human and People’s Rights: The Right to Life.

Prohibition of torture, cruel, inhuman and degrading treatment

7.      Botswana should:

Enact specific legislation that criminalises torture in accordance with the provisions of the Robben Island Guidelines;

Repeal Section 25 of the Penal Code to end the practice of judicial corporal punishment;

Prioritize the establishment of an accessible and fully independent mechanism to which all persons can report allegations of torture;

Establish the Victims of Trafficking Fund as well as Centres for Victims of Human Trafficking as outlined in the Anti Human Trafficking Act of 2014.

Police, prisons and conditions of detention

8.      Botswana should:

Appoint an independent institution with the mandate to conduct unannounced visits to all places of detention;

Establish an independent police oversight body to investigate allegations of violations committed by the Police;

Ensure that the prisons and detention centres are equipped with facilities to cater for prisoners with disabilities.

Access to and administration of justice

9.      Botswana should appoint an institution responsible for ensuring provision of training to all judges and judicial officers, in accordance with the Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.

Freedom of expression and access to information

10.  Botswana should:

Revise the Cybercrime and Related Crimes Act to ensure that the law is in line with the Declaration of Principles on Freedom of Expression in Africa and does not impose restrictions on the freedom of expression;

Repeal criminal defamation laws which impede freedom of speech in accordance with the Commission’s Resolution ACHPR/Res.169 (XLVIII)10 on Repealing Criminal Defamation Laws in Africa;

Amend the Botswana Communication Regulatory Authority Act to explicitly allow the licensing and regulation of community broadcasters and produce policies to that effect as well as initiate public awareness of community broadcasting and its benefits;

Amend the Botswana Communication Regulatory Authority (BOCRA) Act to provide for the regulation of the state broadcaster and consider transforming the state broadcaster into a public service broadcaster;

Enact a Freedom of Information Act which reflects international best practice.

Freedom of association and assembly

11.  Botswana should initiate legislative and other measures to promote and protect the rights of Human Rights Defenders, in conformity with the African Charter, the UN Declaration on Human Rights Defenders, theKigali and Grand Bay Declarations, in addition to other regional and international human rights instruments which guarantee the right to freedom of association and assembly.

The right to participate in the conduct of public affairs

12.  Botswana should enact equality legislation or policy and affirmative action programmes aimed at encouraging the political participation of women, persons with disabilities and ethnic minorities in efforts to increase their representation in various organs of government, especially political bodies such as parliament.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

13.  Botswana should enact enabling legislation for the promotion and protection of socio-economic rights, in order to ensure justiciability in accordance with the African Charter.

The right to work

14.  Botswana should intensify efforts to combat youth unemployment, and include information in the next Report on the institutional measures developed to address the increased rate of youth unemployment.

Protection of the rights of persons living with HIV/AIDs

15.  Botswana should:

Intensify efforts to address the existing HIV prevalence rate of 18.5%;

Take urgent measures to address the gender disparity in HIV infections, with the view to increasing HIV prevention strategies for women;

Urgently initiate measures to address the high prevalence rate of HIV among children, with the view to eradicating the deaths which occur as a result of paediatric HIV;

Take the necessary measures to extend the provision of the PMTCT program to foreign pregnant women.

The right to culture

16.  Botswana should:

Develop and implement strategies for preserving minority languages, including through ensuring access to minority languages in the education and public services sector;

Expedite development of the Botswana Languages Council and ensure that it is as inclusive as possible.

Protection of the rights of women

17.  Botswana should:

intensify efforts to address gender based violence (GBV), including through increased advocacy programs to educate the public on GBV and its serious effects on women, in addition to expanding services to provide assistance to GBV victims, such as access to legal services and rehabilitation programs;

Ensure that the Marriage Act is amended to govern marriages contracted under customary and religious marriages, to ensure the protection of women in these marriages.

Protection of the rights of children

18.  Botswana should:

Prohibit corporal punishment in schools, in advance of the adoption of the Education and Training Bill;

Prioritize conducting a study on child marriage, with the view to addressing the lack of reporting as a result of cultural sensitivity.

Extractive industries 

19.  Botswana should:

Make reference to the State Reporting Guidelines of the Commission on Extractive Industries to structure the sections in relation to Articles 21 and 24 of the Charter for the next reporting cycle, in particular in the areas identified under the concerns above;

Provide more information in the next report on the implementation of the various laws and policies that have been adopted.

Protection of the rights of indigenous populations/communities

20.  Botswana should:

Prioritize the collection of data specific to the Basarwa people, in order to strengthen the provision of essential public services to this minority group;

Establish a legislative and regulatory framework for the promotion and protection of the rights of all indigenous populations/communities, including the Basarwa people, in addition to appointing a Government institution to monitor implementation of programs targeted for these minority groups;

Take concrete measures to ensure the political representation of all indigenous populations/communities, including the Basarwa communities.

Protection of the rights of LGBTI persons

21.  Botswana should enactlegislation and policies that will ensure the implementation of the Commission’s Resolution ACHPR/Res.275 (LV) 2014 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity.