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Botswana - Initial reports of States parties due in 1997: Addendum [2004] UNCRCSPR 3; CRC/C/51/Add.9 (27 February 2004)
UNITED NATIONS
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CRC
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Convention on the Rights of the Child
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Distr. GENERAL
CRC/C/51/Add.9 27 February 2004
Original: ENGLISH
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COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER
ARTICLE 44 OF THE CONVENTION
Initial reports of States parties due in 1997
BOTSWANA
[10
January 2003]
GE.04-40572 (E) 030504
List of abbreviations
BNYC The
Botswana National Youth Council
BOCONGO Botswana Council of NGOs
BOFWA Botswana Family Welfare Association
DMSACs District Multi-Sectoral AIDS Committees
DSW Division of Social Welfare
EWTC National Early Warning Technical Committee
FHD Family Health Division (in the Ministry of Health)
MFDP Ministry of Finance and Development Planning
MLG Ministry of Local Government
MTP II Second Medium Term Plan
NCPD National Council on Population and Development
NDP National Development Plan
NPA National Programme of Action for the Children
NPP National Population Policy
PMTCT Prevention of mother-to-child transmission (of HIV)
RNPE Revised National Policy on Education
UNAIDS Joint United Nations Programme on HIV/AIDS
UNDP United Nations Development Programme
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
WHO World Health Organization
CONTENTS
Paragraphs Page
Introduction 1 - 35 6
I. GENERAL MEASURES OF IMPLEMENTATION 36 - 76 12
II. DEFINITION OF THE CHILD (art. 1) 77 - 99 21
III. GENERAL PRINCIPLES 100 - 148 24
A. Non-discrimination: article 2 100 - 121 24
B. Best interests of the child: article 3 122 - 128 28
C. Right to life, survival and development:
article 6 129 -
134 29
D. Respect for the views of the child: article 12 135 - 148 30
IV. CIVIL RIGHTS AND FREEDOMS 149 - 183 32
A. Name, nationality, identity: article 7 149 - 155 32
B. Freedom of expression and access to appropriate
information:
articles 13 and 17 156 - 164 33
C. Freedom of thought, conscience and religion:
article 14 165 -
169 33
D. Freedom of association and of peaceful assembly:
article 15 170 -
172 35
E. Protection of privacy: article 16 173 - 176 36
F. Torture and degrading treatment: article 37 (a) 177 - 183 36
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE 184 - 228 37
A. Parental guidance and parental responsibilities:
article 5 and
article 18, paragraphs 1 and 2 184 - 188 37
B. Separation from parents: article 9; family
reunification: article
10; and recovery of maintenance
for the child: article 27, paragraph 4
189 - 198 38
CONTENTS (continued)
Paragraphs Page
C. Children deprived of a family environment: article 20
and periodic
review of placement: article 25 199 - 205 41
D. Adoption: article 21 206 - 215 42
E. Illicit transfer and non-return of children: article 11 216 -
217 44
F. Abuse and neglect of children: articles 19 and 39 218 - 228 44
VI. BASIC HEALTH AND WELFARE 229 - 273 46
A. Children with disabilities: article 23 229 - 238 46
B. Survival and development: article 6, paragraph 2, and
health and
health services: article 24 239 - 269 48
C. Social security: articles 26 and 18 270 - 273 55
VII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES 274 - 308 56
A. Education: article 28 274 - 293 56
B. Aims of education: article 29 294 - 300 60
C. Leisure, recreational and cultural activities: article 31 301 -
308 61
VIII. SPECIAL PROTECTION MEASURES 309 - 380 62
A. Children in situations of emergency 309 - 345 62
1. Refugee children: article 22 309 - 319 62
2. Children in armed conflict: article 38 320 - 321 64
3. The administration of juvenile justice: article 40 322 - 335 64
4. Children deprived of their liberty: article 37
and
physical and psychological recovery and
social reintegration of the
child: article 39 336 - 345 67
CONTENTS (continued)
Paragraphs Page
B. Children in situations of exploitation, including physical
and
psychological recovery and social reintegration 346 - 374 69
1. Economic exploitation: article 32 346 - 353 69
2. Drug abuse: article 33 354 - 356 70
3. Sexual exploitation and sexual abuse: article 34 357 - 371 70
4. Sale, trafficking and abduction: article 35 372 - 373 74
5. Other forms of exploitation: article 36 374 74
C. Children belonging to a minority or indigenous group:
article 30
375 - 380 74
Introduction
- In
1995 Botswana acceded to the Convention on the Rights of the Child. The
Convention is an international treaty which contains detailed
provisions in
relation to all aspects of children’s rights and obliges the Government to
respect and implement them.
- The
Government of Botswana is obliged to prepare a report to the Committee on the
Rights of the Child, which monitors the compliance
of all States bound by the
Convention. A delegation of the Government of Botswana will attend a session of
the Committee of the
Rights of the Child at the United Nations in Geneva where
constructive dialogue takes place about how best to fully realize
children’s
rights in Botswana. The Committee will then publish their
“Concluding Observations” on the situation in Botswana which
will
make recommendations for action and highlight areas of government policy which
deserve commendation.
- The
purpose of this report is to provide a picture of how national law and policy
along with institutional mechanisms and structures
have been used to implement
the rights of the child. It aims to provide an accurate analysis of the
situation of children’s
rights including some reflections on areas which
require improvement.
- The
obligations contained in the Convention are diverse and cover fundamental
principles such as non-discrimination, respect of the
views of the child, the
best interests of the child, and the right to life, survival and development.
In addition there are groups
of rights specific to education, family life,
health and welfare as well as civil rights and protective measures for children
in
especially difficult circumstances. Some of the obligations are direct for
example, the provision of education and juvenile justice
systems which meet
international standards, and some are indirect, for example, enabling parents,
guardians and families to carry
out their roles as caretakers and protectors.
All of these rights are discussed in this report and set in the context of
Botswana.
- The
Ministry of Local Government (MLG) is the custodian of the Convention
on the Rights of the Child in Botswana. With the active
leadership
and support of Minister M.N. Nasha, the Division of Social Welfare, in
consultation with key partners, has finalized this
report. The United Nations
Children’s Fund (UNICEF) has provided technical assistance and financial
support in this process.
History
- The
Republic of Botswana became an independent country on 30 September 1966
following a pre-election poll in which Seretse Khama (later
Sir Seretse Khama),
leader of the Bechuanaland (Botswana) Democratic Party, was elected to become
the country’s first President.
The area which is now recognized as
Botswana had originally been inhabited by the Nomadic Basarwa (also known as San
peoples or
Bushmen) until the fourteenth century when the area began to be
settled by Tswana-speaking peoples. In the early nineteenth century
Europeans
began to invade the area and three chiefs emerged as prominent leaders. After
expansionary pressure from the Afrikaners
they sought protection from the
British and in 1885 a protectorate was declared to the north of the Molopo
River. To the south of
the river the Tswana-inhabited land was annexed to the
Cape Colony and became the British Crown Colony of Bechuanaland.
This Colony, which was made up of mineral- and water-rich lands, was later
ceded to the Boers prior to the formation of the South
African Union in 1910.
At the same time the Protectorate was expanded to its current borders.
- Sir
Seretse Khama served as President until his death in 1980 after which his party
continued to enjoy substantial support. He was
succeeded by his Vice-President,
Quett Ketumile Masire, who retired in March 1998 and who was in turn succeeded
by his Vice-President,
Festus Mogae. President Festus Mogae chose as his
Vice-President Ian Khama, Sir Seretse Khama’s son and the former head of
the army, and they were re-elected most recently in 1999.
Geography
- Botswana
is a landlocked country in the heart of southern Africa sharing borders with
Namibia in the west and north, Zambia in the
north, Zimbabwe in the north-east
and South Africa in the east and south. It straddles the Tropic of
Capricorn and has a land area
of approximately 581,730 square kilometres, much
of it flat and covered with the thick sand layers of the Kalahari desert. Its
altitude
averages 1,000 metres above sea level. In the north-west the Okavango
River flows in from Namibia and soaks into the sand forming
the Okavango Delta
and in the north-east there are the salt deserts of the Makgadikgadi Pans.
- Rainfall
varies from 650 millimetres (mm) per year in the north-east to less than 250 mm
in the south-west. Drought is a recurring
problem although in early 2000 record
rainfall brought serious flooding. Botswana experiences extremes of climate
with winter temperatures
below freezing being common in the Kalahari.
- Botswana
is mineral rich and diamonds, copper and nickel are mined in large quantities.
Gold is still mined near Francistown and
there is a soda ash and salt extraction
plant in the Sua Pan.
- By
reason of the arid landscape only about 5 per cent of the land area is
cultivable and cattle ranching is the most significant agricultural
enterprise.
Subsistence farmers rely on cattle, sheep, goats, maize, sorghum, beans,
peanuts, cotton seed and other dryland crops.
Population and demography
- According
to the Statistical Bulletin of June 2001, the population of Botswana
was 1,326,796 at the census in August 1991. This was
41 per cent higher
than the 1981 census, giving an annual population growth rate between 1981 and
1991 of 3.5 per cent. Based on
the 1991 population and housing census, the
population of Botswana was projected to increase to 1,693,970 by the 2001
census, an
increase of 27.7 per cent. The population was estimated to have
grown at an average annual rate of 2.5 per cent during the period
1991-2001.
The sex ratio was expected to improve from 91.6 males per 100 females in 1991 to
93.9 males to 100 females in 2001.
- Urbanization
has been rapid with the number of people living in urban areas increasing from
9.5 per cent in 1971 to 15.9 per cent
in 1981 and 45.7 per cent in 1991. In
1999 the Government estimated the urban population at 50 per cent and the United
Nations Population
Fund reported a 28 per cent urbanization rate in 1997. This
growth is due in part to substantial population growth in traditional
urban
areas like Gaborone and Francistown and the reclassification of many large
villages to urban areas. Some 50 per cent of the
total population live within
100 kilometres of the capital, Gaborone.
- Citizens
of Botswana are known as Batswana. A large proportion are Setswana-speaking with
a substantial minority being Kalanga. The
Tswana-speaking population is made up
of various ethnic groups including Bakgatla, Bakwena, Balete, Bangwaketse,
Bangwato, Barolong,
Batawana and Batlokwa. There are also smaller ethnic groups
such as Baherero, Bahurutshe, Bakalanga, Bakgalagadi, Bakgothu (khoikhoi
or
Hottentots), Balala, Bambukushu, Banoka (River San), Basarwa (San or Khoisan),
Basubiya and Bayei. In addition, there are significant
minorities of people of
European, Asian and mixed ancestry.
- English
is the official language whilst Setswana is the national language. However,
there are numerous other languages and dialects
spoken which have not as yet
been enumerated. A significant proportion of the population speaks either
English or Setswana but the
exact number will not be known until after
computation of the 2001 census.
- At
the 1991 census over half of the population were children with a significant
proportion of the population being under the age of
5 (see table 1 below). In
1991 average life expectancy was 63.3 years for men and 67.1 for women (average
65.2), increasing from
52.3 and 59.7 (average 56.2) in 1981. The 1997-1998
demographic survey estimated that the life expectancy was 66.2. However the
Joint United Nations Programme on HIV/AIDS (UNAIDS) using its method of
accounting for the impact of the HIV/AIDS epidemic, estimated
that life
expectancy would drop to 46.2 by the year 2000.
Table 1
De facto population under 19 by age and sex, 1991
censusa
|
Male
|
Female
|
Total
|
Percentage of total population
|
0-4
|
96 676
|
96 989
|
193 665
|
14.6
|
5-9
|
97 563
|
99 051
|
196 614
|
14.8
|
10-14
|
89 887
|
93 596
|
183 483
|
13.8
|
15-19
|
73 112
|
79 413
|
152 525
|
11.5
|
Total
|
357 238
|
369 049
|
726 287
|
54.7
|
a Source: Statistical Bulletin, June
2000.
Economy
- Between
the late 1960s and the early 1990s Botswana recorded the highest sustained real
GDP growth rates in the world, averaging 6.1
per cent between 1966 and 1991.
Following a recession in 1992-1993 growth resumed and has continued since.
Generally strong growth
in diamond revenue has ensured large government reserves
and budget surpluses. In 1998-1999 GDP was
P23,258.9[1] million or
P14,494.5 per head ($1 was roughly equivalent to 5 pula).
- Prior
to the emergence of the diamond industry the economy of Botswana was dominated
by agriculture, particularly cattle ranching.
By 1998-1999 the mining sector
accounted for 35 per cent of GDP but this reflects an overall decline
due to growth in other sectors.
The prominent sectors in 1998-1999 are
manufacturing, which contributed 4.7 per cent of GDP; construction, 5.9 per
cent; banking,
insurance and business, 10.5 per cent; and trade, hotels and
restaurants, 11.8 per cent. Agriculture represented only 2.8 per cent
of GDP,
while Government accounted for 16 per cent.
- The
Government is the main employer. Including local government and parastatals, it
accounts for 47 per cent of people in formal
employment. Other employers
include commerce (17.5 per cent), manufacturing (10 per cent) and financial and
business services (6.5
per cent). Despite its economic prominence the mining
industry accounts for only about 3.5 per cent of the labour force while
agricultural
employment has declined to 2 per cent from 17 at independence.
Informal and self-employment accounts for 35 per cent of employment.
- Employment
of Batswana in South African mines has decreased significantly in recent years.
There was a 15.4 per cent drop between
1998 and 1999 from 11,981 people in the
first quarter of 1998 to 10,378 for the same quarter in 1999.
- The
rate of unemployment is defined as “those persons seeking work as a
percentage of all those who are economically active”.
For the whole of
Botswana the unemployment rate was thus estimated at 21.5 per cent in the
1995-1996 Botswana Labour Force Survey.
Distribution of the unemployed by age
group shows that unemployment was highest for the 20-24 year group, with 38.9
per cent looking
for work, followed by 35.4 per cent for the 15-19 age group.
The rate of unemployment was higher in urban areas (22.6 per cent)
than in rural
areas (20.0 per cent)
- Income
inequality is high especially in comparison with other countries although it has
declined marginally since 1985-1986. The
poorest 20 per cent of the population
had only 12 per cent of income share, compared with the middle 40 per
cent having 29 per cent
and the wealthiest 20 per cent having 59 per cent of the
national income. There is also disparity between income levels of male-
and
female-headed households. This is more pronounced in urban areas where both the
mean and median incomes of female-headed households
is less than half that of
their male counterparts. Similarly disposable income (cash income plus income
in kind) shows great disparities
between urban and rural areas. The median
income was P809 in towns compared to an average of P1,710 whilst in rural areas
the median
was P417 compared to an average of P641. Public expenditure is
reflected in table 2 below.
Table 2
Public expenditurea
1996
|
1997
|
1998
|
Public expenditure as percentage of GDP
|
35.9
|
35.5
|
39.6
|
Annual growth in real public expenditure
|
11.5
|
5.5
|
..
|
Overall budget surplus
|
21.4
|
11.8
|
15.0
|
Health share of expenditure
|
6.0
|
5.4
|
5.1
|
Table 2 (continued)
1996
|
1997
|
1998
|
Education share of expenditure
|
25.2
|
23.4
|
24.7
|
Defence share of expenditure
|
7.8
|
8.2
|
8.8
|
Ratio of defence to health/education expenditure
|
25.8
|
28.5
|
29.6
|
a Source: Ministry of Finance and Development
Planning.
Constitutional and administrative structure
- The
Constitution of Botswana was adopted at independence. It provides for a
republican form of government headed by the President with three main
administrative organs: the executive, legislature and the judiciary. The
executive branch consists of the Cabinet headed by the
President and is
responsible for initiating and directing national policies.
- The
legislative organ is the National Assembly. It has 46 members made up of the
Attorney-General, the Speaker and 40 members elected
at general multiparty
democratic elections every five years. The remaining four are specially elected
by Parliament itself. The
National Assembly acts in consultation with the
15-member House of Chiefs on tribal matters, and is the supreme law-making
authority
in the Republic. Elections take place on the basis of universal adult
suffrage and the main opposition party is the Botswana National
Front. The
opposition have held 16 per cent of seats since the 1999 elections compared with
30 per cent following the 1994 elections.
In 1999, 77.1 per cent of citizens
registered voted at the national elections. However only 37.7 per cent of those
eligible are
actually registered to vote.
- There
are 11 ministries which, together with the Attorney-General’s Chambers,
Auditor General’s office, Independent Electoral
Commission, and the
Ombudsman constitute central government. Each ministry is subdivided into
offices (generally “departments”
or “divisions”) with
different areas of responsibility. Those relevant to the implementation of
children’s rights
will be discussed in the relevant sections of this
report.
- The
country has 25 administrative districts comprising 15 district councils, 2 city
councils and 4 town councils. Some services such
as health clinic
infrastructure and staff and school infrastructure are provided at the local
level (coordinated centrally by the
Ministry of Local Government) while others
are provided from central government - for example teachers, hospitals, social
workers,
and youth officers (provided by their respective ministries). In each
district there is also a district commissioner whose role
is to coordinate the
provisions of services which emanate directly from central government. In
addition there are Village Committees
and Tribal Administrations dealing with
customary matters at the local level. In the first half of 2001 an inquiry into
the structure
of local government was commenced.
- The
Chief Justice (and President of the Court of Appeal) is appointed by the
President. Magistrates and the judiciary who make up
the High Court and Court of
Appeal are appointed by the President acting in accordance with the advice of
the Judicial Service Commission
(sections 96 (2), 100 (2) and 104,
Constitution of Botswana). The Judicial Service Commission is made up of the
Chief Justice, the Chairman of the Public Service Commission and
one other
member who is appointed by these two acting together.
The legal system
- The
Botswana legal system is plural, comprising Roman-Dutch law and statutory
enactments (common law), and the customary law. The
Roman-Dutch law was
imported from the Cape Colony into Botswana in 1891 primarily to apply to
non-Batswana, but subsequently it was
applied to all persons in Botswana. The
two systems coexist although there are differences in the law and its
application.
- The
highest court in Botswana is the Court of Appeal which is the superior court of
record and to which appeals from the High Court
can be taken. The High Court
has original jurisdiction to hear and determine civil and criminal proceedings.
It acts as an appellate
body for the magistrates’ courts and the Customary
Court of Appeal. The common law is made up of statute and precedents which
are
cases upon which the High Court and Court of Appeal have ruled. The
Constitution guarantees the right to legal representation (para. 10 (2) (d)) in
criminal cases at the defendant’s own expense.
- Since
independence the customary courts have derived their authority from the
Customary Courts Act No. 57 of 1968. The Common Law
and Customary Law Act 1987
also lays down rules which are meant to guide the courts in deciding whether
customary or common law applies.
The customary courts have jurisdiction to deal
with cases where the matter arises wholly within their jurisdiction. They deal
with
a wide variety of matters of civil and criminal law which affect children.
Their criminal jurisdiction is limited and prevents them
from dealing with cases
such as treason, bigamy, corruption, abuse of office, robbery, rape and other
serious offences. When dealing
with criminal matters they follow the Customary
Court Procedure Rules. Their jurisdiction does not allow them to deal with
matters
such as the dissolution of civil marriages, testate succession or
insolvency. Legal representation at the customary courts is not
permitted (s31
Customary Courts Act). However a person has the right to have a case
transferred to another court where she/he has
the right to legal representation
(s36 Customary Courts Act) if permission to transfer is given by the
Commissioner of Customary
Courts.
- Customary
law is administered by the chief (kgosi, plural dikgosi), headman
or Court President who will confer with the elders of the community. Chiefs
will also confer with each other on matters
of significance at the House of
Chiefs. The cases are generally dealt with at the kgotla (a public
meeting and also the name of the public location where it takes place, plural
dikgotla).
- The
application of the Acts regulating the jurisdiction and procedures of the
customary courts is limited by the levels of and training
of the dikgosi,
and the lack of dissemination, training and awareness-raising which is done
amongst the public at large. In addition the Acts are
not translated into
Setswana. Dikgosi will often become involved with dispute
resolution outside the court system where there is room for discretion in the
way they exercise
their powers (legal or persuasive). The difficulties in
overseeing their activities stems from the fact that the bulk of customary
law
is unwritten and practice can vary between different dikgotla (as customs
vary according to different traditions). It is fluid and is a function of the
patterns of behaviour within a particular
community.
- The
local police are officials of the customary courts and they work alongside the
national police force. Both police forces tend
to prefer to use customary
courts because they dispense swift and accessible justice. The Customary Court
of Appeal deals with appeals
from the customary courts (dikgotla) who
administer Customary Law.
- The
magistrates’ court may also use customary law norms in decision-making and
the higher courts have the power to review customary
law decisions on appeal
although this has rarely occurred.
- The
effectiveness of the two systems, the rules that guide them and the interplay of
the systems at both the cultural and legal levels
all have an impact on the way
children’s rights are protected and promoted in Botswana. These issues
will be raised again
in the relevant sections below.
I. GENERAL MEASURES OF IMPLEMENTATION
- Botswana
signed the World Declaration on the Survival, Protection and Development of
Children and the Plan of Action for Implementing
the World Declaration
on 29 May 1992, thus taking the first step towards the
preparation and development of a National Programme
of Action for the Children
of Botswana (NPA).
- In
March 1995 Botswana acceded to the Convention on the Rights of the Child and
entered a reservation to article 1. The reservation
was entered as it was felt
that the various statutes pertaining to the definition of a child in Botswana
were in conflict with the
Convention definition (see section II below). There
are currently no plans to withdraw that reservation.
- Before
Botswana acceded to the Convention, consultations were held with stakeholders
including government departments, districts,
non-governmental organizations
(NGOs), communitybased organizations and the private sector. The culmination of
the consultation
process was a national conference held in Gaborone in June
1993, which attracted participants from all sectors of the society.
- The
former Minister of Labour and Home Affairs, Mr. B.K. Temane officially launched
the Convention in July 1995. Children were invited
to the gathering. Pointing
out that the purpose of the launch was to create necessary awareness among
policy makers, parents, caregivers
and the entire community about the rights and
special needs of children, the Minister also said that the launch was an
occasion to
educate children in particular about their individual and collective
rights as well as their duties and responsibilities to themselves
and the
society.
- There
is no single body with overall responsibility for the coordination of policies
relating to children, or for monitoring the implementation
of the Convention.
There are, however, administrative and institutional structures formulated by
Government to facilitate the achievement
and implementation of national child
welfare policies and legislation. These are generally within the remit of the
Division of Social
Welfare at the Ministry of Local Government which has
therefore become the custodian of the Convention within Botswana.
Incorporation of the Convention
- In
the legal system of Botswana treaties are not self-executing. For such treaties
to be enforceable and applicable they must generally
be incorporated by
legislative enactment into the domestic law. The incorporation can either be of
the whole text of the treaty
or specific provisions, or the integration of
treaty rules by defining terms used in the statute by reference to their meaning
in
a particular treaty. The Convention has not been incorporated into the
domestic laws in this way. However, the Botswana courts
have pronounced that:
“Botswana is a member of the community of civilized states which has
undertaken to abide by certain
standards of conduct and, unless it is impossible
to do otherwise, it would be wrong for its Courts to interpret its legislation
in a manner which conflicts with the international obligations Botswana has
undertaken.”[2] This
case was taken by a mother who was asserting her right to pass her citizenship
on to her children. It follows therefore that,
notwithstanding the
non-incorporation of the Convention into Botswana domestic laws, where domestic
law is challenged it should be
interpreted by the courts in light of the
provisions of the Convention and other international human rights obligations.
This does
not, however, mean that the State could be challenged in court for
failure to implement a provision of the Convention outside a constitutional
claim.
- The
Government of the Republic of Botswana is committed to upholding the rule of law
and affording to its citizenry and all peoples
in Botswana the protection and
the enjoyment of the fundamental freedoms and rights of the human race, without
any distinction whatsoever,
as provided for by the Constitution of Botswana. In
this regard any person can allege through the High Court and ultimately the
Court of Appeal of Botswana that any
of these rights are being violated or
infringed. There have been cases where the State has been found in violation of
these rights
and the Government has also, on the basis of such decisions,
amended its laws accordingly. However, as mentioned above there is no
system of legal assistance to take such cases. This limits the utility and
practical application
of the constitutional rights, except in criminal cases
which attract the death penalty, and where counsel is provided
pro deo. There are a small number of NGOs such as Ditshwanelo and
Metlhaetsile Women’s Information Centre which provide legal
assistance.
The ombudsman/mosireletsi
- The
Ombudsman Act of 1995 created the position of Ombudsman. The incumbent may
investigate any action taken by or on behalf of a government department
or other
authority in the exercise of their administrative functions. The office of the
Ombudsman may investigate following a complaint
by the person affected, or on
its own initiative where considered necessary. The Ombudsman has been in post
since the latter part
of 1997 and has investigated matters such as prison
conditions and prisoner’s rights, corruption in the granting of
scholarships
to students pursuing higher studies and complaints of harassment by
government employees. In 1999 he received 390 complaints. Unfortunately
the breakdown of cases is not disaggregated by age of complainant but the
Ombudsman remains competent to deal with complaints made
by or on behalf of
children, even though the general public is unlikely to be aware of this power.
There is one investigative officer
within the office with responsibility for
issues relating to children, women and youth. It is felt that more could be
done to extend
the capacity of the Ombudsman’s office in this
area.
Vision 2016
- In
1997 the Presidential Task Group on a Long-Term Vision for Botswana produced
Vision 2016 “Towards Prosperity for All”
after a period of
consultation. This document details the country’s long-term goals and the
principles on which they are built.
It is aimed at guiding strategic thinking
and policy-making and unifying all Batswana. All subsequent National
Development Plans
should reflect its aims. Among its basic objectives are
sustained development and social justice, and it proposes action across
a broad
spectrum such as “building a compassionate, just and caring nation”
and “building a safe and secure nation”.
Part of this Vision is to
“address the conflict between some aspects of traditional culture and the
‘emerging rights
of the child’ as expressed by resolutions of the
United Nations” (p. 33). The implementation of the Vision is done by
the
Vision Council which consists of members of Government and civil
society.
The National Programme of Action
- The
National Programme of Action for the Children of Botswana covers the 10-year
period 1993-2003. These dates were chosen to coincide
with the National
Development Plan 8 (NDP 8) to ensure that children’s rights were
placed at the centre of the development
agenda. NPA is wide-ranging and covers
a brief macroeconomic overview of the country; an analysis of the evolving
situation of children
and women; and most importantly an identification of
vulnerable groups of children and formulation of strategies and actions to
address
their needs. It identifies seven such groups: street children; working
children; children with disabilities; orphans; girls; abused
children; and
children who are socially and culturally disadvantaged.
- The
10 goals of NPA (showing the social indicators) are:
- − Reducing
non-HIV-related infant mortality rates by one third to 30 per 1,000 and
under-five mortality rates by one third to
38 per 1,000;
- − Reducing
maternal mortality rates by half from 300 to 150 per 100,000 live births;
- − Reducing
malnutrition levels in children under 5 to half of the 1990 levels (for moderate
malnutrition) from 15 to 7 per cent,
and the virtual elimination of
severe malnutrition;
- − Increasing
access to safe water supply from 68 per cent of rural households
to 95 per cent;
- − Increasing
access to sanitary means for excreta disposal from 41
to 70 per cent of rural households;
- − Securing
universal access to, and improvement of, the quality and relevance of basic
education;
- − Significantly
reducing adult illiteracy;
- − Promoting
early childhood development with the emphasis on family and community
involvement;
- − Improving
protection of children in especially difficult circumstances and tackling the
root causes leading to such situations;
- − Promoting
widespread understanding and observance of the CRC.
- NPA
provides various mechanisms and structures for its coordination and monitoring.
At the national level, the National Council on
Population and Development (NCPD)
is the main coordinating body for monitoring and implementing NPA and is also
the highest body
advising Cabinet on all population and development issues. The
NCPD was created by presidential directive in 1992 (a year before
NPA was
adopted) and consists of government officials, representatives of the private
sector and independent experts whose appointment
is approved by Cabinet. It
reports to Cabinet through the Ministry of Finance and Development
Planning.
- NCPD
formulated a National Population Policy (NPP). It was intended that this policy
would provide a framework for the coordination
of NPA but it was approved only
in August 1997 (four years into NPA) while the implementation plan for this
policy was not finalized
until the end of 1999. As a result the development of
the planned District Programmes of Action and the conduct of the Mid-Decade
Review of NPA in 1995 did not materialize. Despite these failures, coordination
of NPA still remains one of the key responsibilities
of NCPD for the remainder
of NPA period.
- The
delay in establishing NPP does not mean that NPA has been completely ignored as
many of its goals were incorporated into the National
Development Plan 8 (NDP 8)
which covers the period 1998 to 2003, and which is coordinated by the Ministry
of Finance and Development
Planning. A midterm review of NDP 8 has already
taken place and was the subject of Parliamentary debate. However, there was no
budget specifically delineated for the implementation of NPA within NDP 8,
although provision was made indirectly for childrelated
programming.
- For
the United Nations Special session of the General Assembly on children
in 2001 the Ministry of Finance and Development Planning
undertook a review
of the implementation of NPA. As part of this, a multiple indicator survey was
carried out by the Central Statistics
Office in October 2000. These
exercises were undertaken with the assistance of UNICEF. Unfortunately the
review and the complete
survey results had not been published at the time of
drafting this report. In the meanwhile the impact of NPA can be measured
through
census databases (conducted every 10 years, with the last one conducted
in 2001), annual statistical reports and literacy, family
health and education
surveys conducted by the Central Statistics Office. In addition the Government
of Botswana, in collaboration
with United Nations Development Programme
(UNDP), produced a Human Development Report
in 2000.
- At
district and community levels NPA should be used as the basis for development of
district and village plans of action, which would
be periodically reviewed
through the respective Councils. However NPA was only published after the
completion of District Development
Plan 5 and Urban Development Plan 2, and
therefore was not incorporated into these documents. The aim instead is to
build the goals
of NPA into annual plans, as well as into the next District and
Urban Development Plans.
Ministry of Local Government
- The
Ministry of Local Government (MLG) has the portfolio responsibility for child
welfare and responsibility for the preparation of
this report within its
Division of Social Welfare (DSW). DSW is primarily responsible for assisting
Government to formulate social
welfare policy and improve the economic, social,
cultural, physical and spiritual conditions of the people in accordance with NDP
8. Social workers who implement these policies are employed to work at the
local level by a separate department of MLG, the Department
of Local Government
Service Management, which can sometimes create conflicting demands on them. DSW
was moved to the Ministry of
Labour and Home Affairs in an effort to coordinate
policy and planning however, following a review, was moved back again. These
moves, together with lack of human and institutional capacity, have adversely
affected the ability of the division to develop and
coordinate the law and
policy relating to children. There are problems of poor delivery of service
particularly in the remote and
rural areas. DSW’s status has been under
review by Cabinet and was upgraded to departmental status.
- DSW
established a National Child Welfare Committee, a multidisciplinary committee
comprising representatives of various government
departments, various NGOs,
UNICEF and the University of Botswana, with DSW serving as the Secretariat. The
Committee is tasked with
overseeing activities for children; publicizing the
Convention and monitoring its implementation; and overseeing the commemoration
of the Day of the African Child throughout the country. Despite some successful
work particularly relating to the amendment of the
Affiliation Proceedings Act,
the National Child Welfare Committee has become increasingly inactive and
attendance at its meetings
has been poor. However, measures are being taken to
revitalize the Committee, or to replace it with a more effective body.
- DSW
is in the process of implementing a Short-Term Plan of Action for Orphans. An
orphan is defined as “a child below 18 years
who has lost one (single
parents) or two (married couples) biological or adoptive parents”. The
plan was developed in line
with a recommendation made during a conference on the
Implications of Orphanhood in Botswana in September 1998, and implemented
during
1999. The Plan seeks to register all orphans in Botswana and to provide
material and psychosocial support to those who are in need.
It also established
posts for Orphan Desk Officers in all districts, and a monthly “food
basket” of basic necessities
which is supplied to the caregivers of
orphans in need. Provision is also made for clothing, shelter and other costs.
By the end
of 2000 approximately 25,000 orphans had been registered, although
official projections were that approximately 65,000 children were
likely to have
been orphaned as a result of the HIV/AIDS epidemic by that time. Implementation
of this ambitious plan has been somewhat
slower than hoped owing to a range of
factors including human resource shortages, a lack of public awareness and
logistical and technical
constraints, in particular lack of transport. The Plan
is due to be replaced with a five-year plan, and an evaluation is currently
being planned by DSW in partnership with UNICEF.
District and Urban Councils
- District
and Urban Councils throughout the country have a responsibility to provide
services to children through social workers.
These services include:
assessment of individual children in need of care; preparation of social enquiry
reports to the Juvenile
Court to assist the Commissioner of Child Welfare to
address cases; assessment of prospective adoptive parents prior to court
hearings;
monitoring the implementation of the Children’s Act with regard
to cases of neglect; assessment and registration of orphans
who are assisted
under the ShortTerm Plan of Action for Orphans; public education and/or
awareness on children’s rights; facilitating
formation of District Child
Welfare Committees; and supervision of juveniles/children who come into conflict
with the law when they
are placed on probation. However social workers are
hindered by the fact that they are employed centrally.
- In
addition the District Child Welfare Committees do not exist in all districts and
where they do there is no effective communication
between them, the National
Child Welfare Committee and DSW. It is felt there are no well-organized
agencies at community level to
deal with the rights of children or welfare
particularly in the rural areas and that there is a need for the improvement of
services
at district and village levels.
Ministry of Labour and Home Affairs
- The
Ministry of Labour and Home Affairs houses the Department of Culture and Youth
and the Women’s Affairs Department. The
Department of Culture and Youth
has, among other roles, responsibility for developing and reviewing policy in
all matters relating
to youth (aged 12-29) affairs and implementing and
monitoring youth programmes and initiatives. This responsibility was created
following the adoption of the National Youth Policy in 1996. The Department is
currently developing a National Action Plan for Youth
in close collaboration
with the Botswana National Youth Council (BNYC). Youth workers are employed at
district and subdistrict level
working with youth, mainly on project-based
initiatives such as economic empowerment, skills training, environmental matters
and
exchange programmes. District Youth Councils have been established and the
Department aims to establish multipurpose youth centres
providing training,
recreation and counselling in each district.
- The
Department of Culture and Youth also has responsibility for the promotion of
culture and the performing arts. It has developed
a National Cultural Policy to
promote Botswana’s rich cultural heritage in a manner which respects and
promotes the rights
of children and women. This policy, which proposes a
multisectoral approach has recently been adopted by Cabinet and is about to
be
tabled in Parliament.
- The
Women’s Affairs Unit was set up in 1981 to facilitate the full involvement
of women in the development process. In 1996
it was upgraded to departmental
status and coordinates women’s activities at the local, national and
international level, disseminates
information and facilitates the implementation
of the National Gender Programme Framework. Following the Fourth World
Conference
on Women in 1995 the Government collaborated with women’s NGOs
to identify 6 out of 10 areas of the Beijing Declaration as
priority issues for
Botswana. These are women and poverty including economic empowerment; women in
power and decisionmaking;
education and training of women; women and health; violence against women
including human rights; and the girl child. These issues
formed the basis
of the National Gender Programme Framework, which was compiled with the
assistance of UNDP, and its ShortTerm Plan
of Action 1999-2003 which treats the
issues relating to girls as cross-cutting. The Plan of Action is implemented by
committees
that focus on each issue and includes representatives of governmental
and non-governmental interest groups and experts.
- There
is a National Council on Women which is appointed by the Minister and serves as
an Advisory Board, with the Department of Culture
and Youth serving as the
Secretariat. The department has organized a Gender Focal Points Forum for
coordination with other ministries
and the first meeting was held in 2001.
There are also strong links with the Women’s NGO Coalition to promote the
implementation
of the Short-Term Plan of Action.
Other relevant central Government programmes
- There
are other activities, agencies and programmes created or initiated by central
government ministries which impact upon the implementation
of children’s
rights in Botswana which will be detailed in the relevant sections
below.
Non-governmental organizations (NGOs)
- Botswana
has a significant number of NGOs which are concerned with children,
children’s rights, women’s rights and human
rights. These
organizations supplement and complement government programmes on children and
some advocate on children’s rights
issues. They actively contribute to
policy-making and are represented on various governmental bodies on an
ad hoc basis. There
is no children’s NGO network or coalition at the
moment although several NGOs which are involved in children’s issues
are
members of the Botswana Council of NGOs (BOCONGO).
- The
role of BOCONGO is to network, disseminate information and build capacity with
NGOs. They produce a regular newsletter and are
the coordinating point for
various coalitions of NGOs on youth, women, and people with disabilities. They
have recently developed
an NGO policy to develop a partnership framework between
Government and civil society groups, to regulate the registration and operation
of NGOs and to streamline the financial support and the working relationships
between Government and NGOs. The policy is currently
being considered by the
Ministry of Labour and Home Affairs. As part of this process BOCONGO has also
developed a Code of Conduct
to regulate internal and external
relationships.
- Some
NGOs receive grants or subsidies from ministries either directly or through a
coordinating body such as the Botswana Council
for the Disabled or BNYC.
BOCONGO receives funds (P600,000 in the current year) for salaries and other
operating costs from the
Department of Culture and Youth. While they are
welcomed, these funding arrangements have been criticized for being random,
irregular,
short-term and inadequate, which inhibits the ability of NGOs to
develop their services and strategies. It is hoped that this will
be improved
with the implementation of NGO Policy.
- BNYC
was established in 1974 and brings together NGOs and Government to plan,
coordinate and implement programmes of significance
to young people. The
secretariat of BNYC is headed by an Executive Director who works with the
guidance of a Board and the headquarters
are in Gaborone. The Government partly
funds BNYC which, nevertheless, operates as an autonomous body. The objectives
of BNYC are
to: advise Government on all matters pertaining to youth activities
in the non-governmental sector; guide, encourage, and plan youth
activities
within the non-government sector; coordinate, by exchange of information and
discussions, the voluntary organizations
working with or for youth; promote a
channel through which organizations are informed of government policy and
programmes affecting
the youth; and provide advice to the Department of Culture
and Youth on the allocation of funds for youth services to the non-governmental
sector. Funding is then provided through BNYC to affiliates made up of 32
District Youth Councils and NGOs dealing with a variety
of matters affecting
youth. These organizations work on issues including the following: HIV/AIDS
and adolescent reproductive health;
empowerment of young women; children in
especially difficult circumstances; youth mobilization and empowerment for
greater intervention
and creation; life skills, moral training; and crime
prevention.
- The
District Youth Councils also foster the development of Village Youth Councils.
In the past they worked closely with youth officers
who were employed by local
government. However since these officers became directly employed by the
central ministry these links
have changed. The youth officers no longer have
access to local resources and local government will not provide them. The
Department
of Culture and Youth is making efforts to improve the situation.
Although the services provided by district youth councils and NGOs
funded by
BNYC are often aimed at and utilized by under-18s it is generally the case that
the youth councils are made up of those
who have completed the school system and
are over 18.
Cooperation with international organizations
- The
Botswana Government has also received extensive support from international
organizations such as UNICEF, UNDP, UNFPA, United Nations
High Commissioner for
Refugees (UNHCR) and World Health Organization as well as the Swedish
International Development Agency which
sponsored the 1998 Conference on the
implications of orphanhood in Botswana.
Dissemination of the report and the Convention
- In
order to give effect to the provisions of article 44, paragraph 1, of the
Convention a consultation process took place in the preparation
of this report.
Personal interviews were held with representatives of key ministries as well as
with a range of NGOs. Drafts of
this report were widely circulated to
government ministries, district councils and various NGOs and comments were
incorporated.
The Government of Botswana is grateful to UNICEF which provided
invaluable technical advice and assistance in the preparation of
the report.
Upon finalization of this report MLG will consider having it published in order
that it may be made available to the
general public. It is acknowledged that
not enough has been done to publicize the Convention, and much remains to be
done.
- UNICEF
has made some efforts to publicize the Convention on the Rights of the Child in
newspapers but this has not been ongoing.
With the support of UNICEF the
Government has translated the Convention into Setswana and is awaiting
publication.
- As
has been mentioned chiefs, judges, magistrates and the Court President will
often deal with juvenile criminals or children directly
or indirectly affected
by family cases. However, they are generally unaware of the Convention and
other relevant international instruments
and have not been trained in such
matters. In relation to the Children’s Act their levels of familiarity
vary. Youth officers
have also not received training in the Convention.
- It
is apparent that, in practice, teachers are not familiar with the crucial
instruments of law relating to children. In the course
of teacher training all
teachers study “Foundations of Education” which incorporates some
training in guidance and counselling.
Teachers are currently not trained or
made aware of the Convention unless they train specifically to become teachers
of moral education
at junior secondary level. The training of teachers for
moral education has only recently begun as it is a new introduction to the
syllabus. There is no copy of the Convention available in the resource library
based in the curriculum development department in
Gaborone and there is no
record of the Convention being distributed to schools.
- A
police college has recently been built and as part of their basic training all
national police officers are studying basic human
rights principles. The police
are currently developing their curriculum in relation to this. At the moment
the levels of awareness
of the relevant international instruments in practice
are poor although there is some familiarity with the Children’s Act.
This
is expected to improve with the new training.
- In
general social workers (and social and community development officers) are aware
of the main instruments of Botswana law relating
to children’s rights
particularly the Children’s Act. However training in relation to the
Convention is lacking.
- Prison
Officers are not given specific training in dealing with juveniles or
human rights although a social worker is usually employed
by Botswana
Prison and Rehabilitation Service at each prison (see section on “Children
deprived of their liberty” below).
- Some
NGOs such as the Women and Law in Southern Africa, Emang Basadi,
Metlhaetsile Women’s Information Centre and Ditshwanelo
- The Botswana
Centre for Human Rights have undertaken awareness raising of issues
relating to the international human rights obligations
of Botswana, of the
Convention and of children’s rights in general. This has been done
through conferences, workshops, casework,
consultancy and advice to Government.
This kind of activity tends to be focused around the main urban areas, Gaborone
in particular.
They are often invited to comment on human rights issues in the
press and their concerns are publicized but in general this kind
of publicity
has not focused specifically on children’s rights issues.
- It
is acknowledged that more needs to be done to disseminate the Convention. A
joint effort is planned by Government in conjunction
with UNICEF to publicize
the Convention and its report.
II. DEFINITION OF THE CHILD (art. 1)
- There
is lack of uniformity in the various statutes of Botswana which relate to
children as each statute serves a specific purpose.
Consequently, at the time
of accession Botswana entered a reservation as follows:
“The
Government of the Republic of Botswana enters a reservation with regard to the
provisions of article 1 of the Convention
and does not consider itself bound by
the same insofar as such may conflict with the Laws and Statutes of
Botswana.”
- A
brief synopsis of statutes relevant to the definition of a child follows.
Generally courts should always ensure that they ascertain
to their satisfaction
the ages of any children involved in any dispute, civil or criminal, before them
in order to extend the relevant
protections provided for in the statutes.
- According
to section 49 of the Interpretation Act the legal age of majority in Botswana
is 21 and it is at this age that a child acquires full legal capacity to
act on his/her own
officially and in legal matters. There is no stipulated
minimum age at which a child becomes eligible to seek independent legal
advice
but a child below the age of majority is deemed not to have any
locus standi, capacity to contract and to sue or be sued without
parental
consent or assistance.
- The
Constitutional Amendment Act of 1997 reduced the voting age from 21 years
to 18.
- The
Children’s Act (Cap 28:04) defines a child as any person below the age
of 14 years (s2). This Act makes provision for the
appointment
of Commissioners of Child Welfare to deal with neglect, ill-treatment and
abuse of children; for the custody of children
in need of care; for the
establishment of children’s and juvenile courts and institutions for the
reception of children; and
for other matters incidental to the above.
- For
purposes of the Adoption Act (Cap 28:01) a child is a person under the age
of 19 years (s2). This Act makes provision for the
adoption of
children in Botswana and for related matters.
- The
Affiliation Proceedings Amendment Act of 1999 defines a child as a person
below 18 years of age. This Act provides for the making
of orders for the
maintenance of such children and other associated matters.
- In
terms of the Deserted Wives and Children’s Protection Act (Cap 28:03),
which regulates the making of orders for the maintenance
of wives and children
who have been deserted and are without adequate means of support, a child is a
person under 16 years of age
or who is under 21 years and is not earning his own
living (s2). This means that, for purposes of this Act, any person who is
between
16-21 years and is earning his/her own living is not a child.
- Civil
marriage is regulated by the Marriage Act (Cap 29:01), according to which a
person below 21 years of age requires the consent
of his/her parents or
guardian (only the father’s consent is required if the person’s
parents are married) unless she/he
is a minor widow or widower. No male below
16 years of age or female below 14 may marry (s17). At common
law, a minor boy attains majority upon marriage while a minor girl who
marries falls under the guardianship of her husband. This
differential
treatment of females and males is contrary to the nondiscrimination principle in
the Convention. An amendment to the
Marriage Act to provide for a uniform
minimum age for civil marriage of 18 years is currently being considered by
Parliament.
- Persons
below the age of 8 years are not criminally responsible for any act or omission
in terms of section 13 (1) of the Penal Code.
Between the ages of 8 and 14 it
is possible that they can be demonstrated to be criminally responsible if it is
proved by the prosecution
that the child had the capacity to know that she/he
ought not perform the act or make the omission at the time. However a male
child
under 12 years of age is presumed to be incapable of having carnal
knowledge (s13 (3)) and therefore cannot technically be responsible
for
rape.
- Consent
to sexual intercourse can only be given by a girl of 16 years and above.
Furthermore any person who unlawfully has carnal
knowledge of any girl below the
age of 16 is guilty of defilement (s147 (3) Penal Code). It is a defence
to this charge that the
person had reasonable cause to believe that the female
was above 16 or was his wife. There is also a crime of indecently assaulting
a
boy under 14 (s166 Penal Code).
- The
Evidence in Civil Proceedings Act (Cap 10:02) provides that no child shall be
excluded from being sworn as a witness or be deemed
incompetent to give evidence
in respect of age, provided that such child understands the nature and
recognizes the religious obligation
of an oath (s5). The Criminal
Procedure and Evidence Act (Cap 08:02) states that every person who is not
excluded, by the same Act, from giving evidence shall be deemed to be competent
and
compellable to give evidence in criminal proceedings. Children are not
excluded by the Act as witnesses, but a child who does not
understand the
implications of an oath may be admitted to give evidence without being sworn in
or without affirmation (s221).
- The
Mental Disorders Act (Cap 63:02) which regulates the law relating to the
treatment and placement in care of those suffering from
mental disorders defines
a child as a person below 16 years of age.
- For
purposes of the Education Act (Cap 58:01), a child is a person under the age of
“maturity”. Maturity has not been defined in Botswana law so
possibly
maturity may be interpreted to mean the age of majority of 21
years.
- There
is no conscription in Botswana. The Botswana Defence Force Act (Cap 21:05)
provides that a person under the apparent age of
18 years shall not be enlisted
in the armed force - section 17 (2).
- The
sale of liquor to persons below 18 years of age is proscribed by section 36 of
the Trade and Liquor Act (Cap 43:02). No trader may sell liquor to any person
below the apparent age of 18 years. The use of “apparent” however
imports some ambiguity.
- For
purposes of the Employment Act (Cap 47:01), which deals with regulation of the
employment of children, a distinction is made between
a child and young person.
A “child” is defined as a person under 15 years of age and as such
the employment of children
is prohibited. A “young person” is a
person between 15 and 18.
- In
terms of the Trade Union and Employers Organisations Act (Cap 48:01) no
individual under the age of 15 years shall be a member
of a registered trade
union. Moreover the constitution of a registered trade union or
employees’ association may exclude young
persons from membership of that
union or organization.
- The
Public Health Act (Cap 63:01) defines a child as a person who is under or
appears to be under the age of 16 years
- In
customary law, there are no specific rules that determine the cessation of
childhood especially with regard to age limits. However,
under the traditional
practices of bojale and bogwera (initiation rites for females and
males respectively) completion of these rites bestows the status of adulthood on
the individual.
There has been a marked decline in the practice of these rites
so it is not clear how childhood and adulthood are currently determined
under
customary law. In customary law different rules may be applied in different
geographical areas in relation to a broad range
of matters affecting children
where there are differing customs. These include marriage, adoption,
affiliation, inheritance and
maintenance. The provisions of the statutes
detailed above will not generally apply although they may be respected in
practice.
Customary courts are bound by the applicable provisions of the
Children’s Act in relation to acting as Commissioners for Child
Welfare
but it is not clear in practice whether they are always implementing it
fully.
- It
is evident that there are inconsistencies with respect to the definition of a
child. The Division of Social Welfare, Ministry
of Local Government with
support from UNICEF has commissioned a review of the Children’s Act with a
view to harmonizing it
with the provisions of the Convention and other national
child protection laws, to propose strategies to effectively and efficiently
reinforce the revised Act and for strengthening the coordinating structures for
implementing the Convention. A children’s
forum was held at the
suggestion of the National Child Welfare Committee to enable children to
participate in the review process.
However the completion of Children’s
Act review process is hindered by the fact that staff are overburdened and the
general
weakness of NCWC.
- Commitment
to the process of review and harmonization of laws has been shown by the
amendment to the Affiliation Proceedings Act of
1999.
- In
addition a “Review of All Laws Affecting the Status of Women in
Botswana” was commissioned by the Department of Women’s
Affairs at the Ministry of Labour and Home Affairs and completed in September
1998. The report analyses both common law and customary law. It has been
assigned to a working committee to consider how best to
implement its
recommendations which are extensive and relate to matters such as the legal
status of women
under the constitution, citizenship law, in employment, in criminal law (as
witnesses and suspects), and in private law: cohabitation,
desertion, marriage,
divorce, custody and maintenance of children, inheritance, land and property
rights. As already mentioned the
Marriage Act is in the process of being
amended as a result. There is not currently any link between this review and
that of the
Children’s Act.
III. GENERAL PRINCIPLES
A. Non-discrimination: article 2
- Section
3, chapter 2 of the Constitution of Botswana guarantees to every person in
Botswana “the fundamental rights and freedoms of the individual; that is
to say the
right, whatever his race, place of origin, political opinion, colour
creed or sex, ... to: (a) Life, liberty, security of the
person and the
protection of the law;
(b) Freedom of conscience, of expression
and of assembly and association;
(c) Protection for the privacy of his home and other property and from the
deprivation of property without compensation.”
The Constitution goes on to outline the contents of these fundamental rights
and freedoms. The right to the enjoyment of these fundamental rights
without
discrimination, is subject to “such limitations of that protection as are
contained in those provisions being limitations
designed to ensure that the
enjoyment of the said rights and freedoms by any individual does not prejudice
the rights and freedoms
of others or in the public interest”.
- The
clause dealing specifically with protection from discrimination in the making of
laws (section 15 (1) of the Constitution) states
that:
“3. ... ‘discriminatory’ means affording
different treatment to different persons, attributable wholly or mainly
to their
respective descriptions by race, tribe, place of origin, political opinions,
colour or creed whereby persons of one description
are subject to disabilities
or restrictions to which persons of another description are not ... or are
accorded privileges or advantages
which are not accorded to another person of
another such description.”
- This
section is subject to numerous exceptions amongst which are the following:
noncitizens of Botswana are excluded (ss4 (b)); matters of adoption, marriage,
divorce, burial, devolution of property on death and other matters of personal
law (ss4 (c)) are excluded; the application of customary law is excluded (ss4
(d)) and there is a general limitation of measures “reasonably justifiable
in a democratic society” (ss4 (e)).
- Section
18 of the Constitution states that any person who alleges that any of these
rights have been infringed as against him/her shall have recourse to the courts
although, as has been mentioned previously there is no provision of free or
subsidized legal assistance for the exercise of this
right.
- Notably
the non-discrimination clause excludes “sex” but the case of
Unity Dow v. Attorney General (Civil Appeal 4/1991) dealt with this
point. It was held that s15 had to be read in the light of s3 which guarantees
freedom from sexual discrimination. However, as has already been mentioned, s15
contains numerous significant exceptions although it is felt that the essence of
the case of Dow is that even these exceptions should
be read in the light of s3
and any laws dealing with the areas mentioned in them which failed to give women
the same protection as men would be contrary to
s3.[3] However the same source
suggests that the Constitution should be altered to be less
equivocal.[4]
- The
Constitution is therefore inconsistent with the non-discrimination provision of
the Convention to the extent that it fails to unambiguously outlaw
discrimination on the grounds of sex, language, religion, national, ethnic or
social origin, property disability, birth or other
status of the child, his/her
parent or guardian. Non-citizens (and therefore refugees) are specifically
excluded.
- It
is important to note that Vision 2016 states that “No citizen of the
future Botswana, will be disadvantaged as a result of
gender, age, religion or
creed, colour, national or ethnic origin, location, language or political
opinions.” Vision 2016
aims to eradicate negative social attitudes to
promote freedom from sexual harassment. This expression of will, which exists
to
guide policy-making clearly goes further than the Constitution. The Public
Service Act outlaws sexual harassment in the public sector workplace.
- Customary
laws in Botswana apply across the country but practices may differ from one
tribe to another. This is a complex matter
because the question of whether or
not this difference of treatment amounts to discrimination has to be weighed
against the right
of tribespeople to enjoy their own culture which is reflected
in the preservation of the customary law system. In addition, matters
will be
approached differently between common law and customary law courts even though
constitutional guarantees are overarching.
- There
are some concerns in Botswana about specific legal, economic and social
disparities experienced by specific groups of children.
Such children include
girls, street children, children with disabilities, children born out of
wedlock, children of indigenous minority
groups, refugees and rural children.
The ways this discrimination is experienced is detailed in the relevant sections
of this report
and/or discussed below. In terms of measuring discrimination it
is not always possible to establish whether policies or laws or
services are
being applied in a discriminatory manner as data is not always disaggregated for
the relevant groups. In particular
there are no statistics measuring the number
of children in different ethnic or language groups as these were not counted in
the
census of 1991 and are rarely reflected in other analytical exercises. It
is anticipated that the next census will ask which language
families speak at
home and ask about disabilities.
Girls
- The
situation of girls is linked to the status of women in Botswana, which is
compounded by the patriarchal nature of the Botswana
society. Women, and
consequently girls, encounter a number of constraints and marginalization,
including gender stereotyping at
family, school and community levels; limited
participation in decision-making at all levels of society; and a general lack of
gender
sensitivity and responsiveness to their particular needs. As a result
educational opportunities are compromised particularly in
the case of pregnant
girls as they are excluded from school (see section on education). Also girls
are increasingly likely to suffer
sexual violence and sexual abuse and as a
result they are a group which is extremely vulnerable to HIV/AIDS.
- Significantly
the legal status of married women is equivalent to that of a minor who requires
her husband’s consent to take
legal action, although some courts and
institutions take a more enlightened approach by not requiring this consent.
This compromises
her ability to make decisions, resolve disputes and exercise
her rights. In customary law unmarried women fall under the guardianship
of the
male head of the family. Some customary courts are relaxing this rule and
allowing unmarried women to bring cases unaccompanied
by their male relatives
but some women report that they do not feel they are taken seriously at the
dikgotla and are therefore discouraged from seeking redress there. They
also feel excluded from other cultural practices such as the rituals
and
negotiations concerning the marriage of their own children.
- Generally
speaking unmarried, cohabiting, married, separated or divorced women do not
enjoy full and equal rights to property, land,
homestead or cattle upon
separation from their partners or death of a partner or parent. This applies in
both customary and common
law and has been extensively analysed by the
Department of Women’s Affairs and many recommendations for review have
been made.[5] This inequality
with men clearly compromises girls’ rights as wives, mothers, cohabitees
and widows and also affects the rights
of children particularly in cases where
land and/or property is forcibly taken from a mother on the death of the father
of the children
leaving her homeless. This is reported to be a significant
problem.
- Botswana
has, however, acceded to the Convention on the Elimination of All forms of
Discrimination against Women in 1996 and as such
is under an obligation to
discard and eliminate all laws that are inconsonant with the provisions of this
Convention. Botswana is
in the process of drafting its report to the United
Nations.
Children living in remote areas
- Concerted
efforts are being made to bring all basic social amenities and developments to
the rural population, with a special focus
being made on children and the
elderly through the Remote Area Dwellers Programme. This is because the
provision of services to
remote settlements is challenged by low density of
population and the difficulties of securing staff to work in those areas.
Education
provision is made more difficult in remote areas because of the
distances which children have to travel to school and the fact that
many
children in such areas do not speak Setswana or English at home and hence are
limited when they start schooling.
- In
remote areas children are less likely to have access to social workers, police
and magistrates so their care is less likely to
be monitored and it would be
more difficult to report cases of abuse outside the customary system. At least
one case has been reported
where parents were convinced to drop a case of sexual
abuse of their child without the involvement of the national police where the
local Chief had come to an agreement with the alleged perpetrator.
- The
difficulties facing remote communities often overlap with those of particular
ethnic groups such as the Basarwa (Bushmen or San)
or the Bakgalagadi who may
face discrimination on the grounds of their ethnicity and who are being required
to rapidly change their
lifestyles to meet the demands of a changing domestic
economy.
Children born outside marriage
- Children
born outside of marriage also experience differential treatment under both
common law and customary law especially in matters
of maintenance, inheritance,
guardianship, and marriage. Mothers have complained that they have not been
supported appropriately
by their extended families and the overlap of the
customary law of seduction damages and the common law of maintenance can cause
consternation and confusion to elders, unmarried fathers and mothers alike.
- Under
traditional customary law children born out of wedlock belong to their
mother’s family in terms of name and guardianship
whereas those born
within wedlock will fall under the name and guardianship of their father who
will have the duty to maintain them.
There is a link between the customary law
of damages for seduction and maintenance of a child born out of wedlock.
Generally the
customary law system gives the father of an unmarried mother the
right to sue the father of the child for compensation for seduction.
Compensation is usually paid in cattle or their cash equivalent to the maternal
grandfather. The extended family may make such
living arrangements for the
child as are appropriate depending on the specific circumstances of the family
and its children.
- Common
law rules regarding guardianship and custody also treat children differently
depending on whether they are born within or outside
marriage. Guardianship
vests in the father when the child is born within marriage and with the
mother’s family when the child
is born outside marriage. This discrepancy
is reflected in the law relating to registration of births. Upon birth of a
child within
marriage, a duty is imposed on both parents to give notice of the
birth and enter their names on registration documents in accordance
with the
provisions of the Births and Deaths Registration Act (Cap 30:01). However, with
regard to a child born out of wedlock provision is made in the Act that no one
may be entered as the
father of a non-marital child except with his written
consent.
- A
child born within marriage also has a statutory right to guardianship by its
father but in cases of unmarried parents the mother
has to take legal action in
order to determine paternity and obtain maintenance under the Affiliation
Proceedings Act or under common
law principles. A mother who failed to take
action within the old Affiliation Proceedings Act time limits argued that she
had a
common law right to receive support (citing Botswana’s obligations
under the Convention to ensure non-discrimination). The
High Court agreed with
the mother and the statute was subsequently amended. A claim under this Act can
be made in addition to the
claim for seduction damages in customary law.
- A
child born within marriage is entitled to inherit from the parents who die
intestate. A child born out of wedlock can only inherit
from his/her father
where the father has made a bequest to the child, or is voluntarily recognized
by the father’s family.
However the testacy and intestacy rules are
complex due to the overlap of individually owned property and customarily owned
land
and the latter may fall out of the law relating to testacy and fall to be
administered according to customary law.
- In
addition, section 6 of the Children’s Act provides for differences in the
law relating to the protection of infants depending
on whether they are born of
married or unmarried parents in that only the maternal relatives of a protected
child (under the age
of 7) born outside of marriage are automatically permitted
to take care of him/her without registration. For children of married
parents
both paternal and maternal relatives of a protected child can take care of the
child automatically without registration.
B. Best interests of the child: article 3
- The
concept of the best interests of the child is not constitutionally enshrined nor
built into public or private institutional decision-making
and policy-making;
courts of law; administrative or legislative bodies. However the National
Development Plan 8 and Vision 2016
emphasize the civic values of responsibility,
duty, tolerance and respect which are incorporated into the education curriculum
and
policies which relate to children and young people. Vision 2016 has,
as an aim, to put an end to “negative social attitudes
towards the status
and role of women, the youth, the disabled and the
elderly.”[6]
- The
application of the concept of the best interest of the child under customary law
is negligible since customary law in the traditional
sense does not treat the
rights of children or of any other group separately from the rights of the
family as a unit. This is reflected
within the family unit where the head of
the family determines what is in the best interests of the child according to
the values
of the family and their cultural and religious background.
- However,
section 6 of the Customary Law (Application and Ascertainment) Act of 1969 first
introduced this concept into the laws of
Botswana to specifically apply to
custody cases. This Act makes provision that “in any case relating to the
custody of children,
the welfare of children shall be the paramount
consideration irrespective of which law or principle is applied”. It must
be
noted however that this Act makes reference to “welfare” and not
“best interests” but the two terms have
been interpreted to be
synonymous by the courts. This Act applies to all custody cases whether of
children born in or outside wedlock.
A precise definition of the concept has
not been elucidated although the principle has been consistently applied.
- In
its original jurisdiction the High Court is the upper guardian of minor
children. Courts therefore consider the welfare or best
interests of the child
as being paramount and have affirmed this principle in various judicial
pronouncements (see below). The concept
as judicially interpreted is given an
all-embracing approach that seeks to protect the general welfare of the child,
such that all
relevant circumstances are taken into account in determining what
is best for the child.
- In
dealing with custody cases arising in relation to children born within marriage,
judges have interpreted “best interests”
by attaching importance to
material welfare, living conditions and educational
facilities[7] and the intention
of the parent to live with the child themselves or hand them over to a
relative.[8] The courts have
tended to assume that it is in a young child’s best interests to be in the
custody of their mother,[9]
that adolescent boys should be with their fathers and girls with their
mothers.[10] The courts
have, on occasion, taken the views of the child into account and have tried not
to disturb existing arrangements.
- There
have been only a few cases of custody disputes relating to the best interests of
children born out of wedlock. In Chiepe v.
Sago[11] the court
awarded custody of a child born out of wedlock to the father, despite the fact
that the mother was recognized by common
law as the child’s legal
guardian. The court was of the view that “the Common Law provides that
the court, acting as
upper guardian of all minor children within its
jurisdiction, will only deprive the mother of an illegitimate child of its
custody
on special grounds being shown”. From the evidence adduced before
the court, it was held that the father had made out a prima
facie case and
established his ability to care for the child and make arrangements suitable for
the upbringing of the child. The
court therefore held that “having
considered all the evidence and the arguments advanced, I have reached the
conclusion that
it is in the best interest of this young boy to remain in the
custody of his father. He is in my opinion, the more stable of the
two parents and I can see no good reason to disturb the routine that the
child has become accustomed to ...” Also in the case
of Langebacher v.
Thipe[12] the High Court
held that in determining issues of access of an unmarried father to his children
that “the welfare of the child
is the first and paramount
consideration”. This approach was also reflected in the case of Phiri
v. Dintsi and Dintsi.[13]
- The
Children’s Act makes every magistrate a commissioner of child welfare and
where there is no magistrate, the district commissioner,
district officer of the
administrative district or the Chief (part II s3). The Act is aimed broadly at
the prevention of neglect
and ill-treatment of children, protecting children at
risk, providing for children in need of care and the establishment of juvenile
courts and homes and institutions for the reception of children. Section 7
provides that where a Commissioner of Child Welfare has
reasonable grounds to
believe that a child is being kept in “surroundings or
circumstances” which are not in their best
interests (s7 (2)) she/he is
authorized to call upon the parent or guardian to make suitable provision and if
they fail then to remove
the child from the family and place him/her with
suitable foster parents.
C. Right to life, survival and development: article 6
- The
overall development objectives of Botswana are encapsulated in National
Development Plan 8 and incorporate many substantive programmes
which impact on
the child’s right to life, survival and development.
- The
Constitution of Botswana guarantees the protection of the right to life for
every individual. Section 4 (1) provides that “no person shall be
deprived of his life intentionally, save in the execution of a sentence for an
offence
committed under a law in force in Botswana”. The Constitution of
Botswana permits the imposition of the death penalty as a form of punishment.
However, according to section 25 (4) of the Penal Code (Cap 08:01) a sentence
of death cannot be pronounced on any person convicted
of an offence if it
appears that at the time such an offence was committed the person was below the
age of 18 years, but such a person
shall be detained at the President’s
pleasure.
- On
issues of survival of the child, Botswana is committed to health for all.
Primary health care is recognized by the Government
as the most appropriate
method to achieve this goal. Although there is a decentralized approach to
health care, the Ministry of
Health (MOH) retains portfolio responsibility for
health. The main objective of the MOH is to integrate preventive, promotive and
rehabilitative and other appropriate health-care services at all levels of the
national healthcare system.
- The
National Programme of Action indicates that whilst AIDS will have a major impact
on all population groups, the single most affected
group will be children below
age 5. The AIDS epidemic is viewed as the greatest challenge to child survival
goals. Projections
show that this group of children, who are infected mainly
through vertical transmission from infected mothers in the womb during
pregnancy, will comprise between 25 per cent and 35 per cent of all AIDS victims
(see section on health below).
- Botswana
has limited arable land and is prone to drought, which affects both household
incomes and national food security. The country
is therefore obliged to import
and distribute sufficient food to meet its needs. The Government monitors food
security through the
National Early Warning Technical Committee which provides
monthly information and reports to the Inter-Ministerial Drought Committee
which
in turn reports to the Rural Development Coordinating Division of the Ministry
of Finance and Development Planning for making
policy decisions regarding food
security.
- The
Department of District Administration and Food Relief Services in MLG
coordinates a programme which ensures adequate food supplies
for vulnerable
population groups. These include children under 5 years of age, primary school
children, certain pregnant and lactating
women and tuberculosis patients. The
programme has been shown to have a positive impact on the nutritional status of
the under-5
population.
D. Respect for the views of the child: article 12
- In
the Constitution of Botswana the right to communicate ideas and information is
enshrined in section 12. It is subject to limitations and children are not
technically restricted from exercising this right although they would have some
problems ensuring that it is respected given their status as minors. It must be
stated that in terms of Setswana culture respect
for the views of the child is
not regarded as a right. Children do not generally attend or speak at the
kgotla where issues of significance in a community have traditionally
been and continue to be discussed. There is therefore a culture of
believing
that adults know what is best for children and that they are in a position to
articulate the views of their children.
- Children
would particularly be affected by the influence of their parents over legal
decision-making given the high age of majority.
This is significant because,
where there is a choice of law or legal system between customary and common law,
this choice is not
exercised by the child but by the parent or
guardian.[14]
- Vision
2016 mentions the need for youth organizations to be encouraged “to adopt
a higher profile to promote the interests of
young people” and in the
consultation process which informed the Vision, 740 essays were received from
schoolchildren and students
through a national essay competition.
- A
review of the Children’s Act is under way within the Division of Social
Welfare and NCWC. A children’s forum took place
during April 2001 in
which children from around the country, aged 11-18, were brought together to
express their opinions about how
the legislation should be changed.
- In
terms of the Adoption Act, a Court to which an application for an order of
adoption is made shall not grant the order unless it
is satisfied, amongst other
matters, that the child, if over age 10, consents to the adoption.
- In
disputes relating to the custody of children on dissolution of marriage, courts
do sometimes take the preference of the child into
account in cases where such
child is considered to be old enough to make up his mind. In the case of
Ramotshubi v.
Ramotshubi,[15] it was
held that the court cannot be dictated to, but when dealing with children of 17
and 15 it would be wrong to completely ignore
their expressed intentions and
wishes. In Makuku v.
Makuku[16] it was held
that children aged 19, 16, 14 and 9 years be allowed to stay with their father
after the court had sought their opinion
and evidence adduced showed that they
were happy with their father.
- In
schools discipline is emphasized and considered to be an important part of child
development. It is said to be harsh and strict
with little emphasis on the
views of the child.
- All
secondary school institutions are encouraged to form school councils with a
representation of a cross section of the school community
including students.
The intention is for students to be given effective channels of communication
and to air their views. It has
been found that where schools have such councils
in place, schools have managed to avert crises, which could easily have erupted
into riots or school disturbances. The Student’s Representative Councils
are a link between the management and the students.
Day of the African Child
- In
Botswana the Day of the African Child, 16 June, was inaugurated in 1992 by the
then VicePresident Mr. Festus Mogae at the National
Stadium where he
addressed more than 10,000 children. Since then the day has been
commemorated every year in every district and
town. During these commemorations
children get a chance to publicly declare their concerns through a memorandum
presented to the
Child Welfare Commissioner, who in turn informs all those
concerned about the issues raised. Other activities that children use
to relay
messages include poetry, drama, music and dance.
- There
is no formalized way of commemorating this day, though there is a common theme
for each district or town on the day. In some
areas, these commemorations are
organized by schools while in others they are organized by social workers in
conjunction with teachers
and are held at the kgotla.
NGOs
- The
Young Women’s Christian Association (YWCA) has introduced into certain
schools a programme called Peer Approach Counselling
by Teens which young people
use as a vehicle to express their opinions on issues which affect their lives.
The Ministry of Education
has embraced this programme because it supports and
augments the initiative of the Guidance and Counselling Programme by
strengthening
assertiveness, confidence and self-esteem by allowing students to
express their views and concerns. Teachers have only recently
been trained to
work in this area and so it will be some time before it is fully effective. In
addition, the Curriculum Development
Department of the Education Ministry are
organizing Youth Forums in conjunction with the police and other agencies so
that issues
of concern to young people can be discussed.
- Young
people are involved in decision-making in relation to the activities of some
NGOs which are involved with children and/or children’s
rights. In
addition a group of children (aged 14-17) were brought together to discuss
attitudes to custody and guardianship in Botswana
to inform a research project
on the same issue and their ideas were summarized and
published.[17]
Participation in radio
- Radio
talk shows are held on national radio. For example, Youth Today and the Lovers
Plus Spotlight Show give young people, especially
teenagers, an opportunity to
express their views on a wide range of issues affecting them such as teenage
pregnancy, spread and prevention
of HIV/AIDS infection, drug and substance
abuse. Private radio stations also broadcast talk shows that discuss these
issues.
- The
police organized a “Youth Knockout Quiz” on Radio Botswana in which
young people had to answer questions on issues
affecting them predominantly
around crime prevention.
IV. CIVIL RIGHTS AND FREEDOMS
A. Name, nationality, identity: article 7
- Every
child born in Botswana must be registered in accordance with the Births and
Deaths Registration Act (Cap 30:01). The child must be registered immediately
after birth and given a name. For every child born in wedlock, it shall be
the
duty of the father and the mother of the child to give notice of such birth to
the Registrar of Births within three months of
such birth. In the case of a
child born out of wedlock, the responsibility lies with the mother, and no
person shall be entered
in the registration documents as the father of the child
without his express consent. Provision is however made for biological fathers
of children born out of wedlock to be recognized in a document called
“Father’s Consent Form” - a document through
which the
biological father gives express consent to be recognized as such.
- The
Births and Deaths Registration Act was amended in 1998 to ensure that
registration was compulsory throughout the country. Prior to the amendment,
registration was
only compulsory in towns and major villages. Although
provision is further made for the appointment of district registrars for
purposes
of implementing this Act, there is already a problem relating to lack
of capacity. Children also obtain a registration card when
they
are 16 years of age.
- There
are only 24 district offices, however expansion is going on. The events that
are to be registered include births, deaths, marriages,
adoption and
still-births. Some of the problems that the department experiences are the lack
of registration due to ignorance that
such events have to be registered, or that
information is not given accurately or in a timely manner. Some Batswana for
instance
do not register still-births because they feel it is insignificant to
report such events, or that it is contrary to their cultural
beliefs to do
so.
- The
law regarding citizenship and nationality is contained in the Citizenship Act of
1982 (Cap 01:01) as amended in 1984 and in 1995.
Prior to these amendments the
position was such that a person would become a citizen by birth and descent if,
at the time of birth,
his/her father (or his/her mother where born out of
wedlock) was a citizen of Botswana. Those born outside Botswana acquired
citizenship
by descent under the same circumstance. Adopted children under the
age of 3 became citizens if at the time of adoption the adoptive
parent was a
citizen. Children under 21 could be registered as citizens where the father was
a citizen in the case of children born
in wedlock, or the mother was a citizen
in the case of children born out of wedlock. Effectively these provisions
discriminated
against married Batswana women as compared to their male
counterparts as it denied them the capacity to pass on their Botswana
citizenship
to their children irrespective of where they were born.
- The
constitutionality of this provision was successfully challenged in Unity Dow
v. Attorney General (supra) and, as a result of the 1995 amendment, became
gender-neutral. The present provisions allow for the acquisition of citizenship
by birth or descent if the father or mother was a citizen of Botswana at the
time of birth.
- The
Adoption Act provides that an order of Adoption shall terminate all the rights
and legal responsibilities existing between the
child and his/her natural
parents and their relatives except the right to inherit from them when they die
without making a will.
The Act does not take into consideration that an
adoptive child may for purposes of ascertaining his/her true identity need to
know
his/her natural parents. The Act therefore is being reviewed to address
the issue (amongst others) of whether an adopted child should
be given the right
to access adoption documents so as to ascertain his/her own true identity, and
if so at what stage of his/her
development. The legislation is going through a
consultative process.
- Children
born in Botswana obtain the citizenship of Botswana as well as that of their
parents (dual citizenship) but at the age of
21 they are obliged to denounce one
citizenship (s14 of the Citizenship Act).
B. Freedom of expression and access to appropriate
information:
articles 13 and 17
- The
Botswana Constitution stipulates that no person shall be hindered in the
enjoyment of his freedom of expression except by his consent (s12). This right
to freedom of expression includes the right to hold opinions and to receive and
impart ideas and correspondence without
any interference. Reasonable
restrictions may be imposed by law on the exercise of such right, but only
insofar as such restrictions
are necessary for public defence, public health,
public morality and to protect the reputation and freedoms of other persons.
There
are criminal sanctions for the violation of these rights. Remedies in
terms of damages are available for defamation.
- The
Penal Code bestows on the President a right to declare a publication as
prohibited if she/he is of the opinion that such a publication
is contrary to
public interest. The Penal Code gives an absolute discretion to the President
to make such ruling (s47). It must
be noted that “public interest”
is not defined and the discretion is given to the President to determine what
this entails.
This assists in prohibiting any publication that contains
information that is inappropriate such as child pornography.
- Botswana
encourages dissemination of information through the mass media. The Botswana
Government through the Department of Information
and Broadcasting operates
two radio stations which between them provide services to the entire
population. In 1996, the Government
established a Botswana Telecommunications
Authority to oversee the issuing of licences for private radio stations and
television
broadcasting corporations. This Authority has since issued licences
to two commercial radio stations in 1999. The radio stations
target the youth
to enhance information dissemination on issues that affect the younger
generation of Botswana.
- The
National Broadcasting Board was established under the Broadcasting Act of 1999
to oversee broadcasting services in Botswana.
The main function of this Board
is to ensure that information relayed via television and other media will be
appropriate and not
offensive to any part of society including children, for
example, the censoring of pornographic material.
- The
Botswana Press Agency publishes the Botswana Daily News with a nationwide
distribution, though not accessible to every part of
the country as intended.
This newspaper publishes stories from all parts of Botswana and outside in
English and Setswana. This
newspaper is freely available to the public
including children but is not child-friendly. The Government print media also
publishes
a monthly magazine called Kutlwano, which prints stories
written by children in both English and Setswana.
- Botswana
also has a number of privately run newspapers, which publish stories in English
and Setswana. Two of these newspapers, Mmegi/The Reporter and The
Voice publish stories written in “Ikalanga”, an
indigenous language. However, in all these newspapers there are very few
articles which address young children, although
adolescents are increasingly
catered for and articles are written by the youth themselves.
- The
national television station was launched in July 2000 to serve as an additional
medium to inform and educate the children of Botswana,
and to give them another
forum where they can articulate their own views.
- In
addition a number of NGOs are providing appropriate information to the youth, in
particular adolescent health information. Some
NGOs have started establishing
information centres due to the realization that inadequate and inaccurate
information is reaching
young people and these include (but are not limited to)
Botswana Family Welfare Association (BOFWA), Metlhaetsile, Childline and
YWCA.
- In
relation to contraception, HIV/AIDS and sexually transmitted disease prevention
advice, NGOs and health clinics are not restricted
in providing advice to
children above the age of 12 who are sexually active (under the Family Planning
Policy). Parental consent
is not required.
C. Freedom of thought, conscience and religion: article
14
- Both
the Constitution and the Penal Code protect freedom of thought, conscience and
religion. The Constitution provides that no person, except with his/her
consent, shall be hindered in the enjoyment of his freedom of conscience.
Freedom of
conscience includes freedom of thought and of religion, freedom to
change his religion or belief and freedom either alone or in community
with
others, in public or private, to manifest or propagate his religion or belief
(sect. 11). Further, the Penal Code of Botswana makes it an offence to
insult any religion or to disturb any religious assembly (sects. 136
and
137).
- As
a result of the Revised National Education Policy of 1994 the Ministry of
Education has revised the curriculum guidelines according
to a 10-year Basic
Education Programme which has amongst its aims the development of
“critical thinking”. In the curriculum
blueprint for primary
education there is a clear emphasis on values deemed to be important to a
Botswana such as being patriotic
and “showing love and respect for the
government of the day”. This curriculum blueprint has not yet been
developed into
a syllabus.
- The
10-year Basic Education Programme incorporates guidance and counselling in
junior and senior secondary schools which is geared
towards problem solving,
skills acquisition and self-knowledge and “complementing an
individual’s natural processes and
development and maturation”.
Part of this programme is to consider matters of personal, social, family and
vocational interest.
This programme has so far only been implemented in Junior
Secondary schools and historically there is a shortage of teachers due
to lack
of training in these subjects.
- At
junior secondary level a compulsory course of moral education has been
introduced which aims to provide an education which is not
affiliated to any
particular religion and aims to provide children with tools of judgement in a
value-neutral way. So far there
are an insufficient number of teachers to
successfully deliver this new subject although the Government has now made
provision for
training teachers coming into the profession. Evidently the
success of this programme will depend on the quality of the training
and
personal values of teachers.
- Children
at secondary level will be taught religious education as an option, which is
aimed at teaching different religious traditions.
There is a Christian
influence in government schools and morning prayers are held. However Muslim
children are excused from school
to pray on their religious days although there
are no extra classes to make up for lost time. There are also a number of
private
Muslim schools.
D. Freedom of association and of peaceful assembly: article
15
- Section
13 of the Botswana Constitution protects the right of all persons to assemble
freely and to associate with other persons, in particular to form or belong to
trade
unions or other associations for the protection of their interests. The
Constitution ensures this right for all persons including children, subject to
reasonable restrictions that may be imposed by law. Though children
are free to
assemble and associate they are not allowed to participate in any illegal
gathering. The Penal Code makes it an offence
for any person to take part in
any illegal gatherings.
- Children
can join trade unions when they are 15 although an individual trade union can
restrict membership in its own rules.
- Children
are allowed to participate in political activities from an early age, and are
allowed to make their own choices about this.
There are youth wings of various
political parties, and young people including children participate in activism
such as house-to-house
campaigning. There is no law fixing the age at which
they can become full members. This is a matter for each Party’s
discretion.
E. Protection of privacy: article 16
- Section
9 of the Botswana Constitution makes provision for the protection of the privacy
of all persons in Botswana. No person shall be subjected to the search of his
person or his property or the entry by others into his premises unless the law
makes provision for such an interference. Although
no specific mention is made
with respect to extending this right to children, it is submitted that they are
covered under this provision.
- This
right has never been exercised to enforce the right of a child to privacy
against his/her parents or family and begs the question
of the extent to which
parents can legally open a child’s correspondence or enter into a
child’s room without his or
her consent.
- In
traditional custom a child has no right to privacy in his/her relationship with
parents where that child is deemed to be “immature”.
The
presumption is that parents have a right to access everything relating to that
child as they are given the responsibility of
directing and guiding him/her.
However under some Tswana tradition, once a child undergoes initiation rites
that “child”
is automatically regarded as an adult and is accorded
the right to privacy in the context of the meaning given to this concept
according
to their family and cultural traditions.
- In
prisons all correspondence is opened including that from lawyers although
private consultations are allowed. There are no rules
regulating such matters
in alternative care institutions.
F. Torture and degrading treatment: article 37 (a)
- Section
7 of the Constitution of Botswana provides that no person shall be subjected to
torture or to inhuman and degrading punishment or other treatment. It
also
states that nothing done under the authority of any law which authorizes the
infliction of any kind of punishment that was lawful
in the country immediately
before the coming into operation of the Constitution shall be held to be
inconsistent with or in contravention of this right (s7 (2)). The
Government’s commitment to combat torture is reflected in the ratification
of the Convention against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment on 8 September 2000. A reservation was entered
regarding the definition
of torture.
- Torture
by State officials would be prosecuted as assault as no specific provision for
torture exists in the Penal Code. There have
been incidents of maltreatment
which sometimes amount to torture reported against the Local Police, National
Police, the Department
of Wildlife and National Parks and the Department of
Prisons and Rehabilitation. Action has been taken in
the form of disciplinary and criminal sanctions. However these reports are
not disaggregated by age so it is impossible to establish
the extent to which
children are victims. In particular during civil unrest in 1996, three cases of
mistreatment were reported as
were cases of detention of children beyond custody
time limits.
- The
National Police have acknowledged responsibility for taking action against
officers who engage in such illegal practices and have
a policy of referring
cases of violence to the prosecution for processing through the
Magistrate’s Courts. Since 1996 they
have developed new policies aimed at
improving police practice. They are attempting to mainstream a human rights
approach to policing
and to reorient policing to being community-based. New
recruits are being trained in human rights. However if anyone wishes to
complain about the behaviour of a police officer, she/he is obliged to approach
the station in which the officer is based and see
the Commander. If the matter
cannot be resolved it is passed to the Commissioner of Police whose deputies
will deal with the matter
either via disciplinary measures under the Police Act
or by referral to the Prosecution Service. The case of Lesego Thebe and Four
Others v. The State[18]
is illustrative of police efforts to address allegations of torture.
- Prisoners
are obliged to approach the officer in charge if they have a complaint about
their treatment.
- Capital
punishment and life imprisonment are permissible under Botswana laws. However,
as set out hereunder, they cannot legally
be imposed on children under age 18.
Corporal punishment has been held to be
constitutional[19] and is
therefore lawful in Botswana as a penal sanction, as a disciplinary measure by
schools (regulated by the Education Act) and at home.
- The
cultural acceptability of corporal punishment means that adults in positions of
authority (such as police, prison officers and
teachers) are likely to use it
when they feel it is appropriate to discipline a child even where the relevant
authorities have taken
measures to control this kind of behaviour. As a result
of the lack of an independent complaints mechanism, children who wished
to
complain would have great difficulty doing so.
- There
is no specific regulation against corporal punishment in alternative care
institutions but it is not used.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. Parental guidance and parental responsibilities:
article
5 and 18, paragraphs 1 and 2
- The
family, as a basic unit of society, has seen many changes in Botswana. In the
past, Batswana lived in extended families where
members of the same kin stayed
together. Due to evolving socio-economic situations this family structure is
changing, particularly
in urban settings where the emphasis is increasingly on
nuclear units. More children are born outside marriage and desertion/divorce
rates have increased, giving rise to an increased number of single parents,
especially female-headed families. With the advent of
the scourge of HIV/AIDS
many children have lost their parents and relatives, and some of them have
become heads of families.
- In
Setswana culture very little consideration is given to the evolving capacities
of the child so as to allow such a child to participate
in decision-making.
Adults, on behalf of their children, make decisions with little consideration of
the views of the child. The
culture is such that a child, whether staying with
his/her parents, guardians, and relatives or alone, is always regarded as a
minor
and must have decisions made for him/her. It must be noted, though, that
the situation is changing gradually with more and more
parents and guardians
recognizing the evolving capacities of the child and their right to freedom of
expression. However it is submitted
that the ongoing significance and respect
for customary law within Batswana society is consistent with the obligation of
the State
to respect the responsibilities, rights and duties of parents in
accordance with local custom.
- At
the moment there is no mechanism within government that caters for the needs of
young mothers but the Government supports YWCA
teen mothers programme through
the Ministry of Labour and Home Affairs.
- The
concept of guardianship is very significant in both customary and common law in
Botswana and is commonly linked to issues of general
welfare of the children in
the family unit. Historically, the guardianship system is based upon the
traditional Tswana system of
whether the father had delivered bogadi for
the mother. On the other hand, guardianship of children of married couples is
respected irrespective of whether bogadi is paid or not. Bogadi
had the effect of transferring the mother’s children from her lineage to
that of the father. As bogadi was a requirement of a valid marriage then
the right of a father to guardianship or the duty to maintain the child depended
on whether
they were born within or outside the marriage. The law continues to
be applied in this way as if this system is still common, despite
the fact that
it is reported to be in decline. Generally, in both customary and common law,
the guardianship will continue to rest
with the father even after divorce where
custody is vested in the mother. In the case of unmarried mothers customary law
will vest
guardianship in the maternal grandfather whilst at common law this
will be the mother.
- The
concept and duties inherent in guardianship overlap significantly with those of
custody which falls to be determined by what the
courts perceive as being in
“the best interests” of the child (at least this rule is generally
observed in common law
although it is unclear whether it has been internalized
by the customary courts to whom it also applies). The question of guardianship
has not generally been reviewed on the same basis even though in practice it can
create difficulties for the mother in organizing
the children’s affairs,
for example: obtaining a passport, or giving permission for a child to marry.
B. Separation from parents: article 9; family reunification:
article 10;
and recovery of maintenance for the child: article 27, paragraph
4
- For
children of divorcing or deserted married parents as well as those of unmarried
parents the question of custody can be dealt with
by the customary or common law
courts. As has already been discussed the common law courts will tend to use
the concept of best
interests in order to make such decisions. Customary courts
do not allow for representation by a lawyer. If the parent accesses
the common
law system, there is currently no free legal assistance.
- In
relation to maintenance, different laws apply depending on whether a child is
born in or out of wedlock. Where the child is born
in wedlock the common law
position is that marriage creates a duty of support between wife and husband
with each expected to contribute
to the household. This common law rule is
supplemented by the Deserted Wives and Children’s Protection Act (Cap
28:03). Under
this Act, the father must maintain the child at such an amount
which a court will consider proper, having regard to the means of
the father.
The usefulness of this Act has been questioned due to several factors: the fact
that the trials are deemed to be of
a “social welfare” nature and
therefore where the mother has means to employ an attorney she is not eligible
to make
a claim of
maintenance;[20] the
difficulties of interpretation of the word “desertion” which can
often become a trial of the mother’s character;
lack of accessibility to
Magistrate’s Courts; hostility to such action by deserting fathers; and
the inability of deserted
fathers to claim. Serious concerns have therefore
been expressed about the effectiveness of this Act and recommendations for
reform
have been made in the Women’s Affairs
Report.[21]
- Upon
divorce the laws relating to the division of property is either dealt with by
the customary courts or by the common law courts
under the Matrimonial Causes
Act and the Married Women’s Property Act of 1970. Both systems have been
criticized as being
arbitrary, leaving too much discretion in the hands of the
courts, excessively complex and discriminatory towards women. It is often
the
case that where the High Court has become involved it will refer matters such as
the division of traditional property (e.g. cattle)
to the customary courts.
Clearly the impact of such decisions is upon the children of the marriage as
well as on young divorcees
under the age of 18.
- The
Convention makes it a common responsibility for both parents to maintain and
support the child according to their means. This
is in accordance with the
common law in terms of which both parents must support their child according to
their means. This applies
to married and unmarried parents. Although the
father of a child born out of wedlock has a duty in common law to maintain the
child,
such duty is in most cases enforced by the mother by resorting to the
courts. Consequently, where a child is born out of wedlock,
the primary
responsibility for the rearing of the child is placed on the mother. The common
law was clarified in the case of Moremi v.
Mesotlho[22] where the
court held that the common law as applied in Botswana imposes a duty of support
between spouses and it extends to the natural
father of a child born outside
wedlock. This means that the High Court has the jurisdiction to deal with such
matters. However
subsequently the Affiliation Proceedings Act was amended which
reduces the need to resort to the High Court in such cases.
- Prior
to its amendment in 1999, the Affiliation Proceedings Act had the effect of
discriminating against a child born out of wedlock.
This Act has been amended
to deal with such disparities in treatment between children born in or out of
wedlock. For instance,
complaints for a maintenance order or a paternity order
may now be instituted by any woman with a child, a parent of a child or a
person
having the care custody of the child, whereas in the past it was restricted to
“a single woman”. The time within
which the complaint can be made
has also been raised to five years. Further provision is made that the court
may make an order that
the parent pay not less than P100 a month for maintenance
and education for the child (s7 (b)). The proviso to this section seeks
to
address the complaint that the minimum that can be paid is insufficient to cover
the needs of a child. It reads “ ... the
court may order the parent to
such lesser or greater amount as it considers appropriate taking into account
the financial circumstances and ability to pay of the
parent”.
This goes a long way in assisting children, especially those born out of
wedlock, to be maintained at the same level as those born
in wedlock since the
means of the parent is a major determining factor.
- As
has been discussed previously in most traditional systems of Setswana customary
law a man who impregnates an unmarried woman and
a woman who becomes pregnant
and subsequently marries is expected to compensate the father of the woman for
the damage by paying
a certain number of cattle. The focus primarily is to seek
compensation for seduction with the maintenance of the child then becoming
the
duty of the maternal extended family. Maintenance can then also be claimed
through the common law system.
- The
Maintenance Orders Enforcement Act (Cap 29:04) provides that every order of
maintenance made by a common law court shall be enforceable
in the same manner
as if the order were for the payment of a civil debt, and any subordinate court
may issue a writ of execution
or decree of civil imprisonment for the purpose of
enforcing a maintenance order. This Act provides that where any person fails
to
comply with the terms of a maintenance order, notice must be served on such a
person calling upon him to make all payments through
the clerk of the court.
- A
person who fails to make periodic payments of maintenance as stipulated in an
order may be held liable to imprisonment for a year.
The court also has the
power to attach the wages of any person who fails to pay maintenance under any
order, by issuing a garnishee
order. However, failure to make payments will not
be punished if this failure is due to lack of employment. Maintenance for the
child can therefore be recovered through the provisions of the above-cited acts.
This also applies to orders made under the Affiliation
Act and Deserted Wives
and Children Act.
- Nevertheless,
maintenance orders are plagued by enforcement problems. Many women sometimes
travel long distances to magistrate courts
at their own expense only to find
that maintenance instalments have not been paid.
- Many
single mothers in Botswana are unaware they can claim support so they often do
not make any claims against the absconding fathers.
This reluctance is
supported by other factors such as the limited value of the grants made by
courts, the lengthy queues for payouts,
and a superstitious belief that
discussing children can lead to their deaths. Even where the women may be aware
of the availability
of maintenance, the procedure of seeking a declaration from
the High Court for maintenance is onerous as they seldom understand the
procedures or can afford professional legal assistance. In order to address
this problem an NGO, Metlhaetsile Women’s Information
Centre, initiated a
legal assistance programme to help women with insufficient means to pursue
issues of child maintenance and other
family matters. There also are many women
with children from foreign-born fathers who have difficulty accessing
maintenance when
the father leaves the country.
C. Children deprived of a family environment: article
20
and periodic review of placement: article 25
- Provision
is made for children deprived of a family environment under the Children’s
Act of Botswana. Such children are termed
for purposes of the Act
“children in need of care”. A child in need of care is a child who:
- − has
been abandoned or is without any visible means of support;
- − has no
parent or guardian or whose parent or guardian is unfit to exercise proper
control over the child;
- − engages
in any form of street trading, (unless the child has been deputized by his
parents to help in the distribution of
merchandise of a family concern);
- − is in
the custody of a person who has been convicted of committing an offence on a
child;
- − frequents
the company of an immoral or violent person; or
- − is
otherwise living in circumstances calculated to cause or to conduce his
seduction, corruption, or prostitution.
- In
such cases a social welfare officer or police officer may remove the child to
“a place of safety” (s15 (4) Children’s
Act) and soon
thereafter the child should be brought before a children’s court. Once
the court is satisfied, after holding
an inquiry in private, that a child is in
need of care it may order that the child be placed in the custody of a suitable
foster
parent, or be sent to a children’s home or a school of industries,
or be returned to his/her parent or guardian under the supervision
of a social
welfare officer.
- Botswana
currently has only one institution used as a place of safety which is the
SOS Children’s Village. SOS runs two children’s
villages in
Tlokweng and Francistown. In cognizance of the service being provided by SOS,
the Government makes annual grants to
the institution. For the year 2001-2002
the grant was about P1 million. Hospitals assist in providing temporary custody
while a
suitable place is being sought in the form of a family that is deemed
suitable or may provide the necessary safety. The statutory
place of safety,
the School of Industries at Molepolole, has only recently been completed and
will hopefully be in operation by the
end of 2001. Also by the end of 2001 the
Mpule Kwelagobe Children’s Centre will be open for reception of children
from around
the country and it will be run by Roman Catholic nuns.
- MLG
is currently considering alternative care regulations which will be used to
regulate, among other services, foster families, parents
of children in need of
care through screening, educating, and regularly addressing placements. These
regulations have been circulated
to all ministries twice and comments
incorporated where viable. They have been approved by Cabinet and have been
sent to the Attorney-General’s
Chambers to be developed into regulations.
- The
Children’s Act makes no provision for periodic review of placement
although where the child has been placed under the supervision
of a social
welfare officer or in the care of a foster parent the social welfare officer may
prepare a report to the Commissioner
for Child Welfare during the period the
child is under supervision and must do so upon termination of the supervision.
Thus review
of placement mechanisms is weak especially as social welfare
officers are few in number and overburdened.
- Social
welfare officers in the local authorities often liaise with the SOS
Children’s Villages on whether the child should continue
at the
Children’s Village or be allowed to join his/her family. The aim of
social services is to rehabilitate children with
their families wherever this is
practical and safe for the children.
- Botswana
prisons have a negligible number of women prisoners who are mothers of young
children. Where this happens, however, the
children are allowed to stay with
their mothers until they are 2 years of age. The women’s prisons in
Botswana do not generally
have special maternity facilities as the numbers are
often too small to justify their provision. There is one prison which has a
wing for nursing mothers. As a matter of policy, nursing mothers do not engage
in hard labour. The Government buys baby milk and
other necessities. Family
welfare educators and social welfare officers assist in the upkeep and welfare
of the child. When the
child reaches the age of 2, its mother is free to
request any member of her family to take the child and keep it outside the
prison.
By 17 June 1999 there were 38 toddlers in Botswana prisons throughout
the country. Where relatives are not available children are
provided with
alternative care arrangements, although these are minimal.
D. Adoption: article 21
- Adoption
of children in Botswana is governed by the Adoption of Children Act
(Cap 28:01) in the common law courts and is also possible under customary
law.
- Under
Common Law a Magistrate’s Court makes an order for adoption and it is the
duty of the court to satisfy itself that the
provisions of the Act are met which
include “that the proposed adoption will serve the interests and conduce
to the welfare
of the child” (s (4) (2) (c)). A child, for
these purposes, is anyone up to the age of 19.
- An
order of adoption has the effect of conferring on the adopted child the surname
of the adoptive parent unless provided to the contrary
and deeming the child to
be the legitimate child of the adoptive parents. It does not have the effect of
entitling the adoptive
child to inherit from the relatives of the adoptive
parents who die intestate. The child maintains the right to inherit from
his/her
natural parents who die testate or intestate. Under section 14 of the
Act adoption does not have the effect of outlawing marriage
of the adoptive
child where the marriage would not have been illegal had the adoption not taken
place, nor of outlawing carnal intercourse
where it would otherwise have been
legal. This means that an adoptive parent and child can legally marry where the
child is over
21, and an adoptive father can have consensual sexual intercourse
with a girl over 16 years of age.
- There
are various detailed rules on eligibility for adoption which relate to the
status and age differences between proposed adopters
and the child. Basically
there is a restriction on adoption for those who are separated without a
judicial decree but otherwise
any person can adopt, and married couples can
adopt jointly provided they are at least 25 years of age. An adoptive parent
must
be at least 25 years older than the child where the child is above the age
of 16 (unless the child is the offspring of the prospective
adopter’s
spouse). There are other complex restrictions relating to age which are aimed
at preventing adoption being used
to exploit children by placing them in the
role of a wife or husband rather than that of a child of the family.
- Consent
to adopt in the case of a child born in wedlock must be given by both parents
and in the case of a child born out of wedlock
by the mother. Many fathers of
children born out of wedlock regard this exclusion as being discriminatory. It
is in this regard,
in contravention of the provisions of the Convention, which
makes it the responsibility of both parents to look after and care for
the
child. The proposed amendment to the Adoption Act makes provision for the
biological father to consent to adoption in line with
certain conditions which
identify him as a responsible person.
- Rescission
of an adoption order will be made in the following circumstances: (a) where
consent was not properly given by a parent
or guardian; (b) where the adoptive
parent was induced by fraud, misrepresentation or error or where the child
suffers from a mental
disorder or defect which existed at the time the order was
made; or (c) where adoption is to the detriment of the child.
- Regarding
intercountry adoption, the Adoption Act makes provision that a child adopted in
Botswana may not be taken out of the country
until a period of 12 months has
elapsed from the date of adoption unless the Minister gives consent in writing
(s10). If a prospective
adoptive parent or the parent or guardian of any child
gives or receives any “consideration” in respect of the adoption
of
a child then they shall be guilty of an offence. These provisions seek to
discourage illicit transfer of children and child abduction.
- The
complex restrictions and the costly judicial procedure required by the court
sometimes prevent couples from legally adopting the
natural children of either
one of them, and often result in “informal adoptions” which
prejudice these children in matters
of inheritance and other benefits.
- Adoption
rules and procedures as operative under the Adoption Act do not apply in
Setswana customary law; as a result many Batswana
do not fully appreciate the
legal consequences of an adoption order. The general belief is that an adopted
child is free to return
to his/her natural parents at any time, and that the
natural parent(s) can claim back their child, at any time. Under customary
law
a child could be “given” to a relative to bring up. A child could
also be “given” to a couple that cannot
have its own children.
- The
Government has finalized consultations on the review of the Adoption Act. The
review will seek to amend, inter alia, provisions relating to persons
qualified to adopt; issues of consent to adopt; removal of adopted children from
Botswana. The review
of this Act is at an advanced stage. A Cabinet Memorandum
has been written for consideration by the authorities. After the memo,
the
approved review will be passed to the Attorney-General’s Chambers for
final drafting of a bill.
E. Illicit transfer and non-return of children: article
11
- It
is an offence under section 175 of the Penal Code of Botswana to “forcibly
or fraudulently take or entice a child away, or
detain such child, or ... keep
such child knowing it to have been so taken or enticed away or
detained”. This offence attracts an imprisonment term not
exceeding seven years.
- Only
1 case of kidnapping and 11 cases of abduction were dealt with in 1999 according
to the 1999 Annual Report of the Commissioner
of Botswana Police. However only
one case reached trial and the accused was acquitted. Another two trials were
pending. It is
hoped the alternative care regulations will provide mechanisms
for prevention of the illicit transfer of children.
F. Abuse and neglect of children: articles 19 and 39
- Any
parent or guardian of a child or any person having custody of a child who
neglects, mistreats or exploits a child or allows or
causes him/her to be
neglected, mistreated or exploited is guilty of an offence according to section
11 of the Children’s Act.
Neglect includes the unreasonable failure to
provide for adequate food, clothing, housing, health and care of the child and
exposing
a child to conditions or circumstances likely to cause him/her
physical, mental or psychological distress or damage. Any parent/guardian
who
causes or conduces to the seduction, abduction or prostitution of the child or
the commission by the child of an immoral act
is also deemed to be guilty of an
offence under section 12 of the Children’s Act.
- There
were 18 criminal cases, taken under the Children’s Act, being dealt with
by the police. Of these 4 were convicted in
1999 and 16 in 2000. In all cases
the convicts were women.
- The
Penal Code covers other forms of abuse against children namely abduction of
females for immoral purposes, abduction of persons
under 16 years, indecent
assault of young children, defilement of persons under 16 years of age, and
unlawful carnal knowledge of
children. These will be fully addressed under the
chapter on sexual exploitation. It is important to note that a defence to a
charge
of defilement exists if the perpetrator believed the victim to be over 16
or to be his wife. The perpetrators of such offences are
often responsible for
the material support of those they abuse. Also it must be borne in mind that
corporal punishment is regarded
as an acceptable form of discipline at home and
school, so it is rare for action to be taken in such cases.
- In
criminal cases where the child is a victim of abuse, the proceedings are held in
camera to protect the identity of the child.
Only authorized officials and the
parents are allowed inside the courtroom and proceedings cannot be published
which disclose the
identity of the child (s24 of the Children’s Act
and s9 of the High Court Act). Police and social workers work with the chiefs
to ensure that cases in customary courts are held in camera.
- Family
violence is also widespread in Botswana and is often reported, but cases are
frequently withdrawn before they reach the courts.
In view of this, the
Women’s Affairs Department commissioned a study in 1998 on the
socio-economic implications of violence
against women. The report indicates
that of the 444 victims of violence against women interviewed,
19.4 per cent (86) were aged
between 12 and 15 and 28.4 per cent
(126) were aged between 16 and 30. A distinction of those who are between 16
and 18 was not
made.
- One
of the causes of this violence is early forced marriage of the girl children.
This is prevalent among a few groups. Girls aged
between 12 and 18 years are
forced into these marriages, which they regard as a vicious form of violence.
The justification for
the practice is that this is culturally accepted. Young
girls are forced into marrying someone who is not of their own choice and
may be
much older than themselves, or even be sick and dying. They are coerced into
accepting this marriage by male relatives.
If they refuse, they are socially
ostracized, and deprived of material provisions by members of family. In
extreme cases, girls
are even forced to leave the household. On marriage, the
girls are forced to leave school. When the relationship sours or the husband
dies, they are left destitute, surviving on drought relief and temporary jobs.
Some even resort to prostitution.
- The
Department of Information and Broadcasting, and the Botswana Police have
embarked on a project to empower children with knowledge
relating to
children’s rights. In this programme the police are given 30 minutes on
radio for a quiz intended to sensitize
children on their rights relating to
sexually related offences and other matters. In addition the police have a
crime prevention
strategy which has three main campaigns against rape,
defilement and violence against women. For further details see section on
sexual exploitation below.
- The
Kagisano Women’s Shelter Project is a pilot project that offers temporary
refuge to women and their children aged up to
12 years who are battered or
abused, and also offers individual and group counselling to residents and
non-residents. The shelter
is situated in Gaborone and it has a capacity of 20.
It caters for people referred from all parts of Botswana. The shelter is
dependent
on funding from donors and Government through the Women’s
Affairs Department, and individual sponsors. Its major financier
however is the
Kagisano Society through Kagisong Centre. During 1998-1999 a total of 22 women
and 14 children were admitted from
May to December.
- Metlhaetsile
Women’s Information Centre serves as a mouthpiece for women and girl
children who are subjected to violence. This
organization is based in the
village of Mochudi, approximately 30 kilometres from Gaborone. However, it
attends to all cases referred
to it from any part of the country.
- Childline
Botswana offers a hotline and drop-in counselling service to children who have
been abused or are being abused. The organization
also plays a proactive role
in educating the nation on issues of child abuse. Their workers go to schools
to train teachers, pupils
and parents. Childline has reported that corporal
punishment is a major problem at home and in school. Their research has shown
the incidence of reported child abuse is on the increase. Since 1991 they have
dealt with a steady increase in cases: in 1998,
300 abuse cases; in 1999, 344
cases and in 2000, 449 cases. In 2000 these consisted of: emotional abuse
83; physical abuse 58;
sexual abuse 35; neglect 150; interactional 40;
truancy 9 and other 74.
- Notwithstanding
the existence of the above provisions, the occurrence of child abuse, both
physical and sexual, is on the increase
in Botswana. The Government is however
giving this problem much attention by conducting educational workshops to equip
young people
with essential knowledge since most of the abuse is propagated by
members of their families, teachers and religious leaders. However
insufficient
attention is paid to training and sensitizing teachers, social welfare officers,
chiefs, and other people in positions
of responsibility. It is reported that in
some cases children’s complaints have not been taken seriously or have
been settled
outside the formal criminal legal system therefore perpetrators
have escaped justice.
VI. BASIC HEALTH AND WELFARE
A. Children with disabilities: article 23
- Children
with disabilities have encountered some discrimination over the years in that
provision is not made for their welfare or
for the protection and promotion of
their rights. Family members and society generally viewed such children as a
source of embarrassment
and they were usually kept at home. This attitude is
progressively changing but support for children with disabilities and their
families has rested primarily on NGOs and community-based organizations, with
some financial assistance from Government. These organizations
are financially
limited in their capacity and are located in the more populated and urban parts
of the country. As a result a large
proportion of children who are disabled,
especially in the rural areas, do not benefit. The Government promotes
community-based
rehabilitation and integration of disabled children into society
but often faces a problem of lack of resources to support these
objectives.
- The
Government has formulated a National Policy on the Care of People with
Disabilities. This policy outlines the national response
to the demand for a
coordinated delivery of services and care for people with disabilities in
Botswana. The policy objective is
to combat the incidence of disability and to
promote the quality of life for people with disabilities. The policy charges
the State
with the responsibility to ensure that a system of care for people
with disabilities is maintained and that the welfare of people
with disabilities
is recognized in development programmes in education, health, social, physical,
economic and employment sectors.
The roles and responsibilities of the various
stakeholders include the provision of political leadership by the Office of the
President,
and support by mobilizing policy makers in various ministries in the
provision of services to people with disabilities. The Ministry
of Education is
tasked with ensuring that special education is an integral part of formal and
nonformal education. The Ministry
of Health must continue the existing
disability prevention services under the Primary Health Care and Hospital
Programmes and to
channel assistance to NGOs that are providing health-related
services to people with disabilities. MLG ensures that any development
plans
and policies designed by local authorities have adequate provisions for people
with disabilities. The Ministry of Labour and
Home Affairs ensures that all
policies, programmes and laws relating to women, youth, sports, culture and
prisons give emphasis to
disability care.
- The
Botswana Council for the Disabled for NGOs is a network of NGOs which promotes,
and obtains funding for, organizations and associations
for people with
disabilities; monitors their activities and coordinates the activities of all
NGOs providing rehabilitation to disabled
people. It advocates the rights of
people with disabilities.
- The
Ministry of Health has set up a unit called the Rehabilitation Services Division
to oversee the interests of people with disabilities.
Botswana is divided into
districts and each district has a rehabilitation office to see to the needs of
disabled people within that
district. The offices have been furnished with
facilities for disabled persons. These facilities include equipment for
physiotherapy,
wheelchairs and audio-visual equipment. The rehabilitation
officers, who are mostly social workers, are not sufficient in number
to cover
all villages in Botswana, hence their placement at district and subdistrict
level. There is concern that access to health
care for people with disabilities
is a problem due to cultural beliefs that may mean that the parents are not
comfortable with bringing
the child to the health centre.
- Apart
from State-run facilities there are a number of privately run NGO funded
facilities which cater for the needs of the disabled.
These institutions get
substantial annual subsidies from the Government. These institutions include
the Cheshire Foundation of
Botswana, which provides intensive physiotherapy,
occupational therapy, and speech therapy to people aged 5 to 15. Thuso
Rehabilitation
Centre provides services in physiotherapy, speech therapy,
vocational training, and supply of technical aids and counselling to people
of
all ages from birth through adulthood. The Botswana Red Cross Society runs two
rehabilitation centres, namely Tlamelong Rehabilitation
Centre and Tshimologo
Stimulation Centre.
- Motswedi
Rehabilitation Centre provides the following services: gross motor training,
strengthening of weak muscles, correction and
prevention of contractures,
referrals for corrective surgery and orthopaedic appliances. These are provided
to people from birth
through adulthood. Camphill School is an institution for
mentally and physically disabled children whose clients range in age from
7 to
15. It provides a primary school curriculum and daily living skills, and gross
motor training.
- Francistown
Centre for Deaf Education is an institution for children with impaired hearing.
The age range of the children is 6 to
18. The centre provides a primary school
curriculum with daily living skills and communication instruction, which
includes reading
and sign language. Ramotswa Centre for Deaf Education is
another centre, which provides similar services. The ages of the children
range
from 3 to 18.
- The
Sir Seretse Khama Memorial Fund for the Handicapped was established in 1980 in
recognition of the first President of Botswana,
Sir Seretse Khama. The fund
considers requests from and on behalf of institutions, organizations and groups,
but not from or for
individuals. It also considers requests from
institutions/organizations for counterpart contributions to externally funded
projects.
- Ten
government primary schools in Botswana have special resource units. These
units, run by special education teachers, are for children
who are mentally
retarded, emotionally disturbed, or who have learning disabilities. In addition
to the above special resource units
the Central Resource Centre has
multidisciplinary procedures for children suspected of having learning
difficulties, motor, visual
or hearing problems, communication disorders,
emotional/behavioural difficulties and other developmental problems. The centre
also
provides parental guidance and counselling services, Braille services and
makes referrals of children to other facilities.
- The
Government is encouraging planning authorities to provide structures and
facilities that will provide people with disabilities
access to buildings, as
per the Development Control Code of 1995. This Code stipulates the minimum
design specifications for entrances,
doors, ramps, staircases, and lifts for the
disabled in all building developments. Further provision is made that parking
with special
access and dimensions be provided for every 20 parking spaces.
Although the Government has drawn up the Development Control Code,
some
buildings still do not comply with the specifications.
B. Survival and development: article 6, paragraph 2, and
health and health services: article 24
- Data
indicate that Botswana has progressed in all major indicators of the well-being
of children and women over the last 30 years.
This was attributed to the
Primary Health Care strategy. The commitment of the Government of Botswana to
undertake measures that
promote survival and development of the child is
premised on the effective utilization of primary health care which specifically
targets child health improvement. Emphasis is placed on preventive, promotive,
rehabilitative and curative health care. The strategy
had been particularly
effective and most indicators showed significant improvement. Tragically,
however, Botswana has one of the
fastest growing HIV infection rates and one of
the highest HIV prevalences in the world, which has had a massive negative
impact
on the health of all sectors of society but especially children and
women.
- One
of the other major challenges facing health-care delivery in Botswana is an
acute staffing shortage. The country has seen a tremendous
outflow of skilled
medical staff, in particular doctors and nurses, to places like South Africa and
the United Kingdom of Great Britain
and Northern Ireland where better
remuneration, working conditions and career prospects are offered. This
shortage has resulted
in services being provided less frequently, less
efficiently or in local services having to be provided centrally. In order to
deal
with this crisis the Ministry of Health has upgraded all health science
institutes by improving infrastructure and by sending students
to medical
schools abroad. This has improved intakes of nurses but as they undertake a
four-year training period the benefits are
not yet apparent in service
delivery.
- The
infant mortality rate had declined dramatically but has recently increased as a
result of the HIV/AIDS epidemic. In 1996 a Family
Health Survey suggested that
infant and under5 mortality rates are highest amongst children born to women
under 20, and in rural
areas.
Table 3
Child mortalitya
|
Infant mortality rate (deaths per 1,000 live
births)
|
Under-5 mortality rate (deaths per 1,000 live
births)
|
1971
|
100
|
151
|
1981
|
71
|
109
|
1991
|
31
|
38
|
1997
|
41
|
49
|
a Census statistics for 1971, 1981, 1991. For 1997
the figures are taken from NDP8.
Table 4
Major child health indicators
|
1981
|
1991
|
1997
|
Underweight births (percentage of births below 2.5 kg. Source: Health
Stats)
|
8.9
|
9.9
|
14.0
|
Full immunization (percentage of under 2’s. Source: MOH EPI
Data)
|
36
|
67
|
..
|
Measles immunization (percentage of under 1’s. Source: MOH EPI
Data)
|
63
|
87
|
79
|
Malnutrition rate (percentage of under 5’s. Source: NNSS)
|
25
|
14.3
|
18.5
|
Diarrhoea episodes (per 10,000 children. Source: BFH)
|
..
|
1 792
|
2 886
|
Houses with safe water supply (percentage with access. Source: 1991
census data, HDP 2000)
|
..
|
90
|
..
|
Houses with safe sanitation (percentage with access. Source: 1991
census data, HDP 2000)
|
..
|
55
|
..
|
- Incidents
of diarrhoea are still high (average 4.2 attacks per year for infants
and 3.3 events per year for children under age 5).
The major causes
are inadequate sanitation, malnutrition and feeding practices. Children under 5
get an average of 8-10 attacks
per year with about 5 per cent leading to
severe disease.
- The
Primary Health Care system aims to ensure that health services are taken close
to the people through sensitization and mobilization.
It is a decentralized
system whereby local authorities are responsible for the provisions of clinics
and staffing. Health-care
facilities are good, but may be compromised by a
shortage of staff and increasing workload as a result of the HIV/AIDS epidemic.
Family welfare educators are not qualified to provide treatment or dispense
medication, but they are known to do so in some rural
areas. The Ministry of
Local Government is responsible for the clinic infrastructure and the staff are
employed by the DLGSM. The
Ministry of Health is responsible for hospitals
(primary, district and referral) and health-care service delivery, policy,
standards,
protocol and staffing norms. Some 88 per cent of Batswana were
within a 15-kilometre radius from the nearest health facility in
1995. The
majority, especially along the eastern side of the country, were within an
8-kilometre radius.
- The
health system has a well-established referral chain structured as follows. The
number of facilities is accurate as of 1998.
Table 5
Health referral systema
|
No.
|
Location
|
Mobile stops (Nurses, midwives)
|
740
|
Settlements, small villages
|
Health Posts (Nurses, family welfare educators)
|
330
|
Villages
|
Clinic (Nurses, midwives, Family welfare educators)
|
222
|
Villages
|
Primary Hospital (Physicians, nurses, midwives, allied health
officers)
|
14
|
Big villages
|
District Hospital (District medical officer, nurses, midwives and
health-related professionals)
|
16
|
District headquarters
|
Referral Hospital (Specialized professionals, pharmacists, nurses,
midwives; includes 1 psychiatric hospital and 1 private hospital)
|
4
|
Towns
|
a Source: CSO Statistical Bulletin June 2000.
- The
consultation fee to receive medical treatment in government health facilities is
only P2.00 and free medication is given. People
registered as destitute,
including children, receive free medical attention from government-owned
facilities. There is also a private
healthcare system which consists of private
hospitals and doctors.
- The
Family Health Division is responsible for the provision of the extended
programme of immunizations; health promotion and educational
services; maternal,
child health, and family planning services; and the food and nutrition
service.
- The
extended programme of immunizations for the protection of children against the
six preventable childhood diseases of diphtheria,
whooping cough, tetanus,
poliomyelitis, measles and tuberculosis. There is a current emphasis on measles
as there has been a drop
in the uptake of this vaccination. Since 1990 Botswana
has reported zero cases of polio and is making a concerted effort to be declared
polio-free through an active surveillance and diagnosis programme. An effective
programme for the management and treatment of acute
diarrhoeal diseases and
acute respiratory infections in children has also been put in place recently.
This is called Integrated
Management of Childhood Illnesses and aims to provide
a holistic approach to child health whereby the child is examined in relation
to
any matter and a proactive inquiry into his/her general health should be made.
This programme should have a positive impact on
HIV/AIDS monitoring. The
Ministry of Health is actively engaged in dialogue with traditional healers to
ensure that health-care
strategies are complementary.
- The
Family Health Division runs a schools’ health programme which advises
educationists about the curriculum and provides vaccinations
in school. There
is however a shortage of staff in this area which restricts proactive health
education in schools. Other health
promotion activities include anti-smoking
and safe water, which are done through radio programmes and the encouragement of
local
communities in the active participation in health planning. This work
overlaps with the work of other Ministry of Health divisions
including those of
community health and environmental health. In relation to reproductive and
family health guidelines the policy
emphasizes non-judgemental counselling for
all those seeking advice and services, regardless of their age. The favoured
mode of
contraception is the condom, alone or in combination with other methods
of contraception, as it offers some protection from HIV infection.
Contraception advice responds to the urgent need to prevent teenage pregnancies
and promote adolescent sexual health particularly
amongst girls.
- In
relation to pregnancy the Division has adopted a safe motherhood programme which
incorporates a programme for the prevention of
mother-to-child transmission of
HIV. Provision is made under the health-care system for most health facilities
to be staffed by
personnel trained in midwifery. This affords pregnant women
the chance of being attended by trained personnel in properly equipped
facilities. This notwithstanding, 14.8 per cent of women still prefer to
give birth at home with the assistance of a relative or
a traditional birth
attendant or doctor. According to the 1996 Botswana Family Health Survey this
is more likely to be the case
for the least educated women and rural women
(groups which may overlap). Botswana’s maternal mortality rate was very
high
at the 1991 census, 326 per 100,000 live births, and is currently estimated
to be between 200-300.
- Through
the Food and Nutrition Unit of the Family Health Division the Government has a
national nutritional surveillance system for
monitoring faltering child growth
and food security amongst under 5’s. This has a positive impact on infant
and child morbidity
and mortality. They also advise on feeding programmes for
under 5’s, pregnant women and lactating mothers at the local clinics
as
well as school meals, food for orphans through the Orphan Care Programme and
food provision for destitute people. It has been
noted that food supplements
provided to children through clinics for children are being used at home for
sick adults (and it is assumed
that this is increasing with the onslaught of
HIV/AIDS) and the Ministry of Health is seeking to tackle this
problem.
The National Policy on HIV and AIDS 1993 and the Botswana
HIV/AIDS Second MediumTerm Plan
- The
Sentinel Surveillance Report 1999 of the AIDS/Sexually Transmitted Diseases Unit
estimated that at least 28 per cent of the sexually
active population
(15-49) and 17 per cent of the general population were HIV-positive. The
figures suggested by the Joint United
Nations Programme on HIV/AIDS for the same
year were that 36 per cent of the sexually active population were
HIV-positive. The prevalence
had more than doubled since 1992. In order to
produce estimates antenatal clinics in Gaborone and Francistown are surveyed
annually
together with other selected sites. The rates of HIV prevalence and
mother-to-child transmission suggest that one in eight children
is born
HIV-positive.
- The
groups who have the highest prevalence are women in their twenties. The
Government estimated there would be 65,000 orphans under
15 by 2000
(unfortunately actual registration is around half that number). In Botswana the
major challenges facing the HIV/AIDS
crisis are poverty, gender inequality,
migration patterns, mother-to-child transmission, a lack of appropriate sexual
education,
inappropriate traditional practices and erroneous traditional
beliefs, unhelpful male attitudes, the enhanced social status relating
to
childbearing and the stigma attached to being infected. Gender inequality and
the low social and economic status of women mean
that young girls are
vulnerable, submissive and lacking in knowledge in their relationships with
older men. Such relationships are
reportedly common and manifest themselves in
a high teenage pregnancy rate. In addition violence levels against women and
children
are high, a factor which contributes to, and is a result of, an
imbalance of power between men and women. The power imbalance contributes
to
the fact that women are more likely to be infected than men.
- The
National Policy on HIV/AIDS demonstrates that the Government recognizes that the
HIV/AIDS epidemic is of crisis proportions.
It provides for a multisectoral
response to which individual agencies in all sectors are expected to contribute.
It is coordinated
by the National AIDS Council, chaired by the President, with
the National AIDS Coordinating Agency (established in 2000) serving
as
secretariat. There is also a Technical and Advisory Committee. Before this
time, HIV/AIDS interventions were coordinated by
the AIDS/STD Unit within the
Ministry of Health.
- The
Second Medium Term Plan (MTP II) 1997-2002 is the strategic plan which builds on
the National HIV/AIDS Policy. The Ministry of
Health through the AIDS/STD Unit
provides leadership in its implementation. MTP II envisages District
Multi-Sectoral AIDS Committees
(DMSACs) and Village AIDS Committees. MTP II
approach is multisectoral and decentralized, with research, monitoring and
evaluation
as central components. Its goals are to reduce HIV transmission
by tackling: socio-economic and cultural factors, sexual and reproductive
behaviour leading to unprotected sex, and biological factors such as the
prevention of mother-to-child transmission. It also aims
to reduce the
impact of AIDS at the macro-economic, social, household, community and personal
levels. The effectiveness of the DMSACs
varies widely between districts,
depending on the commitment and skills of the people involved. The Ministry of
Local Government
is seeking assistance from international donors to restructure
and strengthen the implementation of HIV/AIDS campaigns at grass-roots
level.
- There
is a recognition that further research is needed on the impact of HIV and AIDS
on dependent groups including distressed children.
Amongst the strategies which
particularly relate to children are the following:
- − Review
all poverty alleviation measures;
- − Reduce
illiteracy;
- − Enforce
the rights of girls to alleviate gender inequalities;
- − Incorporate
children’s rights into school counselling;
- − Take
measures to prevent coercive and violent sexual activity;
- − Improve
education on safer sexual practices amongst adolescents;
- − Enable
women and girls to negotiate safe sex;
- − Make
provision for orphans;
- − Make
provision for children of parents infected with HIV and ill with AIDS;
- − Promote
an ethical environment conducive to living positively with
HIV/AIDS.
Orphan care
- The
Government has developed an orphan care programme through the MLG, which
is being guided by a Short Term Plan of Action on Care
of Orphans, which
covers the period 19992003. Through this plan the Government aims to
achieve the following objectives: (a) respond
to the immediate needs
of orphans, i.e. food, clothing, education, shelter, protection and care; (b)
identify mechanisms for supporting
community-based responses to the orphan
problem; and (c) develop a framework for guiding the long-term programme
development for
orphans.
- The
shortage of social workers and logistical support at local level has been a
limiting factor in the implementation of the Orphan
Care Programme and the
timely registration of orphans and delivery of services has been affected.
Recently a number of vehicles
have been provided to resolve one major
constraint.
- The
Orphan Care Food Basket budget has P34 million devoted to it and there is
another P4 million for other requirements. The total
budget was therefore
P38 million for 20002001 with a similar amount provided for 2001-2002.
- As
one of the measures to deal with children in Botswana in light of the AIDS
epidemic, there was a pilot project on care of orphans
in Bobonong implemented
by the Bobirwa local authority in partnership with donor organizations. This is
a major village situated
about 175 kilometres from Francistown, and is one
of the hardest hit areas in Botswana. The objectives of this project were to
establish
a prototype for a district-based registry for orphans and a parallel
district-based registry for prospective parents, and to develop
nurturing, cost
effective, affordable and culturally acceptable community-based models of orphan
care. UNICEF provided technical
support, including the orphan registration form
and monitoring and evaluation tools. It also developed and maintained the
district-based
database on orphans. Unfortunately, as a result of personnel
changes, the project became dormant, but not before it had contributed
significantly to the development of the Government’s Short Term Plan of
Action for Orphans.
Prevention of mother-to-child transmission (of HIV)
programme
- The
Prevention of mother-to-child transmission (of HIV) (PMTCT) programme is the
responsibility of the Family Health Division. It
has a technical advisory
committee and a national reference group. It aims to prevent the transmission
of HIV from HIV-positive
mothers to their children through breast milk and at
birth. The Government, in conjunction with UNAIDS and UNICEF as the
implementing
agency, embarked on a pilot programme in Gaborone and Francistown
which the Government is seeking to expand to 10 districts by the
end of 2001.
This onerous task has commenced by ensuring that there are trained personnel in
all districts who can, in turn, train
staff in their districts in terms of the
provisions of formula milk and the requisite drugs.
- Under
this programme women receive antenatal counselling and undergo voluntary
testing; if they test HIV-positive then they are provided
with preventive drug
treatment (AZT) if they have consented to participate in the programme. The
drug is administered from 34 weeks
of pregnancy until the birth of the child.
Thereafter it is given to the child in the form of syrup. After giving birth,
mothers
are encouraged not to breastfeed their babies to avoid transmission to
the child and are supplied with formula milk.
- The
Government released P16.2 million for the pilot project in 1999 and committed
itself to continuing this allocation thereafter.
UNICEF is assisting by
providing the mother’s dose of the drug, while the Government is buying
the drugs to be administered
to the women during labour and to babies as well as
providing a backup supply and also providing milk formula.
- Challenges
faced within the programme include: lack of staffing and resources; low takeup
rate of testing and of preventive therapy
if the mother tests positive; the
stigma attached to HIV infection (using formula feed may be interpreted as an
indication that the
mother is HIVpositive); the lack of wider support systems in
the community particularly the exclusion of fathers from the programme;
and
failure to use formula milk consistently (by intermittent breastfeeding) which
can increase the risk of infection for children.
These issues are being
constantly monitored by the programme.
- A
problem which has been highlighted is the lack of sustained ongoing care for the
mother once her infant is outside the PMTCT programme.
In the long term such
care is crucial to prevent the child being orphaned later in life.
Adolescent sexual and reproductive health
- As
has been mentioned previously sexual activity amongst children is a major cause
for concern. Its consequences include teenage
pregnancy, high levels of STDs
and HIV infection. These result from the problems teenagers experience in
accessing adolescent health
services despite the positive policy environment.
Intergenerational sex between older men and younger women is increasing. During
the 1991 census the number of teenage girls becoming pregnant was 19
per cent. According to the Sentinel Surveillance Survey 1999,
21.5
per cent of girls aged 15-19 attending antenatal clinic were testing
HIVpositive. The Botswana Human Development Report 2000
concludes that in the
age group 0-14 girls are twice as likely as boys to be HIVpositive and three
times as likely in the age group
15-29. Teenage pregnancy increases the school
dropout rate for girls leading to lower educational achievement, which
ultimately
exacerbates poverty levels and is associated with increased maternal
and child morbidity in Botswana.
- In
order to tackle this problem in 2000 the Government in conjunction with three
United Nations agencies and BOFWA began piloting
four models of
adolescent-friendly sexual and reproductive health services. These were to be
evaluated in 2001 to decide upon how
to expand nationally. It is felt that
implementation has been slow because of bureaucratic obstacles and lack of
support for voluntary
peer counsellors.
- The
Department of Culture and Youth is aiming to establish multipurpose youth
centres to further assist in providing youth-friendly
clinics and counselling
centres. These will be modelled according to the outcome of the pilot
programmes and hopefully these too
will contribute to the fight against AIDS and
teenage pregnancies by providing a conducive environment where youth can air
their
problems. The AIDS/STD Unit in collaboration with BNYC has already
embarked on countrywide sensitization programmes on AIDS.
- BOFWA
provides integrated sexual and reproductive health and education and services.
YWCA and Peer Approach to Counselling by Teenagers,
seek to empower
adolescents/teenagers to make informed decisions on sexual and reproductive
health and HIV/AIDS. Population Services
International promotes condom use
amongst young people through social marketing approaches. The Dipalana Project
educates young
people in school to prevent teenage pregnancies, supports
pregnant schoolgirls so they can continue their education while at home,
and
helps minimize confinement periods and to return to school by establishing
day-care centres near schools so mothers can breastfeed
their babies during
recesses.
- A
lot of sensitization has taken place about the dangers of teenage pregnancies
and HIV/AIDS. Parents, however, seem to prefer that
somebody else talks to
their children. To address this issue the Ministry of Education has integrated
family life/sexual health
education into the new primary and secondary school
syllabuses. These syllabuses are not yet fully operational as they have not
been introduced at levels of schooling and where they have, an insufficient
number of teachers have been trained.
C. Social security: articles 26 and 18
- Government
through local authorities has put in place a programme for the sustenance of
destitute persons and their dependants. The
National Policy on Destitutes
defines a destitute person as: an individual without assets; a person who is
physically or mentally
incapable of working due to old age or a handicap; a
minor child or children whose parent(s) have died or deserted the family or
are
not supporting his family; or an individual who is rendered helpless due to a
natural disaster or temporary hardship. Of significance
therefore is the
inclusion of minor children in the classes of destitution.
- The
Social Welfare Division under MLG provides the destitute allowance and destitute
persons are offered a monthly food basket to
the value of P90.28 in rural areas
and P67.78 in urban areas. Children are registered for this assistance if they
are found to be
needy.
- Beneficiaries
of the National Policy on Destitutes are provided with food, toiletries, medical
care and shelter when the need arises.
They are exempted from payment of
service levies, taxes, water and street licences. Funeral expenses are also
covered. Additionally,
the Government makes provision for children whose
parents are registered as destitute to attend school.
- It
is said to be relatively difficult to register as destitute and that only the
very poorest will qualify. In addition the shortage
of social welfare officers
creates delays in registration and may discourage people from doing so
altogether. Furthermore, elderly
people who have limited pension provision are
caring for an increasing number of orphans without necessarily getting the
benefit
of the destitute programme. Outreach work should be done to encourage
registration.
VII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES
A. Education: article 28
- The
Government of Botswana considers education a basic component of human
development. NDP 8 lists amongst its objectives: (a) to
increase access to
education and training opportunities through both formal institutions and
out-of-school means and (b) to place
emphasis on vocational training. To these
ends and to improve the skilled workforce of Botswana the Government developed a
Revised
National Policy on Education (RNPE) in 1994.
- Basic
education is free but not compulsory at primary and secondary school levels.
The Government has, however, introduced fees for
non-Batswana and is considering
extending cost recovery measures to all citizens of Botswana (it is very likely
that refugees will
be excluded from the obligations to school fees). The RNPE
provides for seven years of primary education (Standards 1-7) starting
not
earlier than age 6, three years of junior secondary (Forms 1-3) and two years of
senior secondary (Forms 4-5) education. The
first 10 years form the period of
basic education which all children of school going age have a right to enjoy.
The Constitution of Botswana allows for the deprivation of a child’s
liberty for the benefit of their education or welfare.
- The
RNPE provides that between ages 6-10 children may start primary school. Those
who do not commence schooling until they are 10
may opt for non-formal education
and can then rejoin the secondary school system. If the student is going to be
older than 19 when
they finish secondary schools then they should go to tertiary
schools instead. In relation to Remote Area Dwellers there is exemption
from
this rule.
- The
aim of the Education Policy is to have a maximum class size of 22 pupils. In
terms of education participation rates the Government
of Botswana has always
been concerned with the missing 10-15 per cent which is generally regarded
as the proportion of children not
attending school. Just under one third of
students who begin school complete Form 6.
Girls’ education
- There
has been a reasonably well-developed system of education whereby both boys
and girls have equal access to education although
1998 Education statistics
show that girls tend to drop out due to pregnancy. This accounted for 3.1
per cent of dropouts of primary
school (212 out of 6,942) and 39
per cent of those dropping out of secondary school (1,282 out
of 3,287).
- Education
Policy previously did not allow a pregnant girl to continue with her schooling.
The policy was that a girl child who dropped
out of school due to pregnancy must
stay away from school for one complete year and that if she were to return to
school it ought
to be other than the school she was attending prior to the
pregnancy. This policy did not encourage the girl child to return to
school.
The new Education Policy now provides for the girl to go on leave for 84
days and return to the same school.
- A
pilot project funded by UNICEF for pregnant schoolgirls is currently being
conducted at Pekenene Community Junior Secondary School
in Mahalapye, where
schoolgirls who have babies will attend school while their babies are taken care
of in a nearby day-care centre.
It is anticipated that the existence of
guidance counsellors in school will particularly assist these girls.
Table 6
Education indicatorsa
|
1999 %
|
1997 %
|
1998 %
|
Pupil-teacher ratio
|
..
|
28
|
28
|
Illiteracy - adult
|
..
|
25.6
|
..
|
Net enrolment ratio - ages 6-12
|
88.5
|
89.2
|
90.3
|
Net enrolment ratio - ages 7-13
|
97.9
|
98.4
|
98.6
|
Progression rate (Standard 1 to Form 1 as a percentage of Standard 1
entrants)
|
78.0
|
82.1
|
..
|
Progression rate (Standard 1 to Form 4 as a percentage of Standard 1
entrants)
|
30.1
|
31.6
|
..
|
a Source: Ministry of Education. Except
literacy, source: Literacy Survey.
Education for children in remote areas
- Children
who live in remote areas have their access to, and participation in, education
inhibited by reason of their distance from
educational facilities. These
children are often faced with the problem of walking long distances to schools.
Such children are
also often confronted with the difficulty of being unable to
speak the languages used in school, namely Setswana or English. This
is because
many children in these groups speak a different language at home. There is one
group of citizens who do not allow their
children to participate in
education.
- The
Government, through the Remote Area Dweller Programme, has some schools with
hostels in which even the youngest child can stay.
These are overseen by a
matron. These hostels are not always seen as child-friendly environments,
particularly for young children.
It is
difficult for children to see their families at weekends as they are often
poor and some distance away. This can result in high desertion
rates (81.5
per cent of dropouts from primary education are deserters and drop-out
rates are higher in Remote Area Dweller areas).
The Government is piloting
schools with 1-2 teachers to assist with this problem.
- Some
NGOs such as Tirisanyo Catholic Council have established pre-school programmes
in these areas staffed by people from the local
communities in order to enable
these youngsters to learn Setswana and English and to become familiar with a
school environment and
routine. They are, however, seriously under-funded and
underresourced.
- Another
problem faced by these schools is the problem of keeping teaching staff who
often do not want to live in such remote and uncomfortable
environments. They
do not receive any special training for these posts. There is, as a result, a
high turnover of staff in these
areas and low staff morale which impacts
negatively on the education of children.
Education for children with disabilities
- The
development of special education in Botswana can be traced back to 1969 when the
Dutch Reformed Church established the first resource
centre in Mochudi at
Linchwe Primary School for blind children. In the 1970s two more schools were
established, namely Rankoromane
Camphill Community Special School for children
with mental and physical impairments in Otse and Ramotswa Centre for Deaf
Education.
Another centre for deaf education has been established in
Francistown, in the Northern Part of Botswana. Credit must be given to
the NGOs
which started and are running centres for children who require special
education. Government however makes annual subventions
to these centres.
- To
date there are 11 units for the mentally and physically handicapped, 3 resource
classes for the blind, and 2 units for the deaf.
Ramotswa Community Junior
Secondary School has a special education unit catering for 39 pupils who are
hearing-impaired. Two hostels
have been built to accommodate these pupils.
Some children with other serious disabilities have been sent to institutions
outside
Botswana. Currently 17 children are receiving special training in
South Africa.
- The
Ministry of Education further intends to absorb children with learning
disabilities into the mainstream educational process.
The Revised Policy on
Education recognizes that the extent of some children’s disabilities may
be such that they cannot be
properly catered for in mainstream education and
therefore provides that these children must be educated outside Botswana at
government
expense. However there is need to adequately prepare teachers to
enable them to provide appropriate and effective support for the
students. The
Ministry has thus come up with a training plan that includes training for
special education. There are now four teachers
who are undergoing training
abroad, and six more are to be sent to the United Kingdom for training.
The Ministry also provides in-service
training on special education.
- It
is felt that education for children with disabilities needs to be strengthened
to prevent discrimination. To this end Braille
exams are provided and schools
are being modernized to improve access for children with disabilities.
Pre-school education
- In
its commitment to providing education the Government recognizes pre-primary
education as an important component of basic education.
Although the Government
has not committed itself to universal provision of pre-primary education, it
continues to provide an enabling
environment to NGOs, churches and individuals
that provide this level of education. There is a permanent coordinating
capacity through
the pre-school unit of the Ministry of Education, which
recognizes the importance of affording education to children of the minority
groups such as Remote Area Dwellers. The programmes are geared towards the
improvement of early childhood programmes in remote areas.
- Presently
pre-school education is provided mainly by private individuals and organizations
through the day-care programme. Access
is limited to about 7 per cent of
the population aged 3-6. The curriculum is not standardized and the training of
teachers is done
outside the formal teacher training programmes. Further, the
National Policy on Day Care Centres which guides pre-school education
is out of
date in many respects and is under review. A report was completed in 1999 and
is in the process of being prepared for
adoption.
Corporal punishment
- In
the Education Act (Corporal Punishment) Regulations, provision is made that
corporal punishment on a pupil at any school can only be administered by
the
headmaster or another teacher in the presence of the headmaster. Furthermore,
no instrument of punishment other than a light
cane shall be used; and no
punishment shall exceed 10 strokes with the cane; no male teacher may inflict
corporal punishment upon
any girl whom he has grounds for believing is under the
age of 10 years. The situation with the secondary schools is that no male
teacher except the headmaster may inflict punishment upon a girl, and no
punishment shall exceed five strokes.
- To
ensure that the corporal punishment regulations are adhered to the Ministry of
Education has introduced a “Punishment Book”
at every school. All
acts of punishment should be recorded in this book and it should reflect the
type of offence committed by the
pupil, type of punishment, date when
administered, the teacher administering it, name of the child, the number of
strokes and the
way they were administered.
- In
essence, corporal punishment can only be administered by the headmaster or
someone authorized by the headmaster. Although the
Ministry has received few
complaints relating to corporal punishment the reality is that a lot of the
conditions stipulated above
are flouted and that teachers will administer
corporal punishment outside of these rules. This has led to numerous complaints
by
children to the NGO Childline, but it is not clear how often these are taken
seriously.
B. Aims of education: article 29
- RNPE
has, as its objectives:
- − To
raise educational standards at all levels;
- − To
emphasize science and technology;
- − To make
further education and training more relevant and more available;
- − To
improve partnership between school and community;
- − To
provide lifelong education to all sections of the population;
- − To
assume more effective control of the examination mechanism in order to ensure
that the broad objectives of the curriculum
are realized; and
- − To
achieve efficiency in educational development.
- RNPE
led to a reinterpretation of the goals and objectives of basic education into
aims from which subject aims and curricula could
be developed. These are based
on the assumption that education is a fundamental human right which promotes the
all-round development
of the individual; fosters intellectual growth and
creativity; enables citizens to reach their full potential; develops moral,
ethical
and social values, cultural identity; self-esteem and good citizenship,
enables citizens to participate actively to develop the democracy
of Botswana
and prepare them for life in the twenty-first century. The basic education
is aimed at providing a sound prevocational
preparation and the ability to
optimize career choices. It also provides for guidance and counselling for
pupils throughout their
schooling.
- The
Ministry of Education has a curriculum development and evaluation division which
has developed curriculum blueprints for all levels
of education. So far only
the junior secondary element has been introduced in practice. Traditionally
schools have been seen as
places where discipline is strict and the
teachers’ authority is unquestioned and this is reflected in the
prevalence of corporal
punishment.
- Teachers
are currently being trained to enable them to teach the new curriculum which has
introduced new subjects such as moral education
and guidance and counselling to
schools. In addition old syllabuses for subjects which remain in the curriculum
have been revised.
Botswana has employed a number of expatriate teacher
trainers to work in teacher-training colleges to enhance the workforce and
make
up for deficits in skills and subject areas. Difficulties may be faced with the
introduction of the new curricula as older
teachers are not familiar with them
and will need ongoing training.
- With
regard to this strategy, the Ministry of Education initiated a “job
shadowing programme”. Job shadowing is a form
of work-based learning
where students visit a workplace and shadow a person. They observe what the
persons do and ask them questions
about their job. On realizing its usefulness,
UNICEF and Gaborone Rotary Club lent their support to the project. It is
currently
piloted in selected schools in Gaborone. The purpose is to provide
students with an opportunity to learn firsthand about the world
of work. The
job shadowing experience provides students with an opportunity to explore
specific jobs, careers or industry sectors
that might be of interest to them.
It also exposes students to the realities and demands of the workplace and the
expectations of
the employer. It must be noted that job shadowing is part of
the larger, ongoing career guidance programme that is run in secondary
schools.
- There
is need for vocational schools to develop fully fledged guidance and counselling
programmes to help ensure that students receive
adequate career counselling to
prepare them for challenges posed by the world of work.
- Although
Government has aimed to make sure that there are schools in every district to
provide primary and secondary level education,
it is fully aware that not all
these children have access to these schools for a variety of social, economic
and educational reasons.
For these children therefore there is provision in the
education policy that parallel, out-of-school primary education should be
provided through non-formal education. NGOs will be supported by Government to
run pilot out-of-school centres developed through
action, research and
evaluation. At elementary level a nationwide distance education study centre is
being established.
C. Leisure, recreational and cultural activities: article
31
- Cultural
practice is that children are given time to play with their siblings and
friends, to rest and to participate in leisure activities
such as sport and
dance.
- In
the basic education programme physical education, art, music, a third language,
religious education, home economics or business
studies form part of the
optional curriculum of which two or three must be chosen by the student.
- Botswana
has a rich and diverse cultural heritage which the Department of Youth
and Culture has a responsibility for preserving and
promoting. It also
promotes sports and the performing arts which it does through organizing
national performing arts festivals in
different districts celebrating cultural
diversity and providing financial support to independent, non-governmental
projects for
traditional dance, theatre and the arts. Costumes, musical
instruments and sports equipment are provided. Many children and youth
participate in these programmes although there is not a specific budget
allocated to children’s groups.
- Botswana
National Museum is the responsibility of the Department of National Museum,
Monuments and Art Gallery in the Ministry of
Labour and Home Affairs. It is
based in Gaborone and conducts educational tours for children involving
different activities designed
to enhance children’s skills in writing,
research and critical thinking. It also has a variety of other activities aimed
at
and including children.
- The
Museum has a mobile museum extension programme for schools and local
communities. The main aim of this programme is to educate
schoolchildren about
the people of Botswana and the environment, thus promoting not only an
understanding of Botswana’s cultural
heritage but also an understanding of
the cultural patterns and diverse ethnicities which make up
Botswana. The programme is conducted in Setswana and English and consists of
lectures, introductions to museum exhibits and traditional
performances in the
form of traditional dance by children and adult groups, poems and oral history
of villages by elders. The Museum
spends P60,000 annually on the mobile
unit.
- The
Museum also stages 12-17 temporary exhibitions per year which are well attended
by school parties. In 2001 a new museum will
open in the Tsodilo area there
will be an exhibition to celebrate International Museums Day. The art division
of the Museum intends
to link the two events working with children from SOS
Children’s Village to produce artwork in the form of wall hangings for
the
Tsodilo museum which will form part of the backdrop when the President makes his
opening speech.
- The
Museum also holds an annual National Children’s Arts Festival which is
open to children aged 18 and under and designed to
complement the school
curriculum. It is targeted at all children throughout Botswana, including
schools in remote areas, and aims
to cultivate and develop talent. It is a
three-day mini-festival of performing arts including traditional dance, drama
and music.
The art exhibition and prize-giving is a key part of the festival.
The Museum regards this event as one of its most important events.
- In
July 2001 there was a Children’s Art exhibition organized in partnership
with DeBeers Diamond Company which was funding artists
from the Kuru Development
Trust to hold painting workshops in schools in the Ghanzi and D’Kar area.
The work was displayed
at the exhibition.
VIII. SPECIAL PROTECTION MEASURES
A. Children in situations of emergency
1. Refugee
children: article 22
- Botswana’s
stable political environment has over the years attracted many asylumseekers.
The result is that the majority of
the asylum-seekers currently in Botswana
are from neighbouring States, in particular Namibia and Angola.
- However,
in fulfilment of international obligations, specifically under the
Convention relating to the Status of Refugees of 28 July
1951 and the OAU
Convention of 10 September 1969 governing the specific aspects of
refugee problems in Africa, Botswana has had to
ensure that refugees within her
borders are afforded the bare necessities. The Refugees (Recognition and
Control) Act (Cap 25:01)
governs matters relating to refugees. This Act
provides for the recognition and control of certain political refugees, and
prevents
in certain circumstances their removal from Botswana. The country
enforces the principle of first country of asylum, which means
that
asylumseekers from further afield such as Ethiopia and Somalia tend to be
refused refugee status. UNHCR has proposed amendments
to the Act.
- It
must be pointed out however that the Act does not make any specific reference to
children. It is apparent that in practice children’s
claims for refugee
status is attached to that of a parent, guardian, older sibling or “foster
parent” designated for
the purpose by the authorities. There are no
separate systems in place for unaccompanied children or for family tracing other
than
through the UNHCR system.
- Botswana
has set up a refugee settlement at Dukwi, which is approximately
170 kilometres from Francistown, the second largest city.
Numbers in the
settlement vary but were about 3,500-3,600 in April 2001, representing 16
nationalities. Some accommodation is provided
in two-roomed houses but the
majority live in tents provided by UNHCR. The settlement is run by a Commander
who is employed by the
Office of the President. The Botswana Council for
Refugees employs other essential staff including a social worker.
- Some
of these refugees have been in the settlement for as long as five years. The
people living at this settlement are those seeking
refugee status, those who
have been granted status and those who have been denied (about 500 as of April
2001). Once refugee status
has been granted, refugees can live and work legally
anywhere in Botswana. However few tend to do so because of difficulties
obtaining
employment due to lack of skills, language barriers and competition
from Botswana citizens. To deal with this problem UNHCR is establishing
income
generation schemes to finance group enterprise through microcredit loans and
provide professional advice and assistance on
business planning.
- There
is a well-established food supply system which makes some attempt to cater for
variation in diet. Refugees are also supplied
with basic commodities such as
cooking oil, paraffin, toiletries, and seeds for horticulture. They are not
given money or clothing
and some complain that the food ration is insufficient.
Horticulture and poultry farming is hindered by lack of maintenance of the
water
supply and lack of electricity which result from the years when the settlement
fell into disrepair when few refugees were in
the country.
- At
the time the settlement was established the UNHCR established a primary school,
which was later handed over to the local authority.
The primary school also
caters for the small local population and the children of the refugee settlement
staff. The enrolment of
the children at this school in 1998 was 80 pupils made
up of mostly Angolans who were staying in Dukwi. By February 1999 the enrolment
had shot up to 156, the majority of the children being Namibians and by April
2001 the number was 412. An existing pre-school has
recently been reopened by
UNHCR to cater for the influx of refugees.
- There
is a secondary school on the settlement which is run by the Botswana Council for
Refugees. In April 2001 it had 140 pupils.
Pupils who do well tend to be taken
out of this school and sent to the government secondary school in the nearby
settlement. UNHCR
has recently commenced a scholarship scheme to enable
students to further their education outside the settlement in vocational and
academic subjects. Thirty-four students had benefited from this by
April 2001.
- Classes
in school are made up of children who speak several different languages so
teachers encounter challenges in delivering the
curriculum. In an attempt to
cater for this problem, teachers are sourced from among the refugees themselves
although the fact that
there are 16 nationalities represented makes this a
difficult challenge. Poor attendance and high dropout rates are also reported
to be a problem in both schools. In order to address these problems refugees
have been sourced from the settlement to assist with
the teaching.
- There
is a health clinic on the settlement which also services the local community.
The quality of its service delivery to the refugees
is compromised by lack of
adequate interpreters and understaffing. This is particularly problematic in
relation to advice about
the PMTCT programme and other matters which depend upon
strict confidentiality. The result is that maternal and child health services
and HIV/AIDS prevention and awareness mechanisms are inadequate.
- Other
problems faced by the refugees include the failure to implement the homebased
care programme which requires social workers to
deliver extra food rations to
bedridden patients, inadequate counselling facilities and leisure and
recreational activities. The
crime rate is not reported to be high although
there have been arrests on the settlement due to protests by asylum-seekers who
have
been refused refugee status.
2. Children in armed conflict: article 38
- As
already stated in the previous section, Botswana has enjoyed a peaceful
atmosphere since its independence. There is no military
conscription and the
age at which a person can join the army or police is 18 years, which is in line
with the provisions of the Convention
on the Rights of the Child.
- Botswana
ratified the Rome Statute of the International Criminal Court
on 8 September 2000 and acceded to the Geneva Convention for
the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field on 10 December 1976. It also acceded to Protocols
I and II to the
Geneva Convention on 23 May 1979. These have been incorporated into Botswana
legislation (CAP 39:03).
3. The administration of juvenile justice: article 40
- A
child in conflict with the law is entitled to the constitutional safeguards of
secure protection by the law (section 10 of the Constitution). This provides
that every person charged with a criminal offence shall be afforded a fair trial
within a reasonable time by an
independent and impartial court established by
law. Furthermore, provision is made that every person charged with a criminal
offence
shall be presumed to be innocent until proven guilty, and shall be
informed as soon as reasonably practicable of the charges against
him/her in a
language he understands. He/she must be given adequate facilities and time to
prepare his defence, and a right to legal
representation at his own expense and
a right to examine witnesses. A person also has the right to be informed of
his/her right
of legal
representation.[23] However
there is no scheme for providing free legal representation or advice to children
and it is reported that very few juveniles
are assisted by a lawyer in
practice.
- The
right to an interpreter was recently reinforced in the case of Ditshwanelo,
Maauwe and Motswetla v. Attorney General and Commissioner of Prisons and
Rehabilitation.[24]
- The
Children’s Act, the Penal Code and the Criminal Procedure and Evidence Act
are principal legal instruments that make specific provisions on how to deal
with children in conflict with the law. Criminal liability
starts at the age of
8. For children aged between 8 and 14, the State bears the burden of proving
that a child charged with committing
an offence did so
knowingly.
- The
Children’s Act establishes Juvenile Courts for children between 7 and 18
who are tried for criminal offences. A Juvenile
Court is defined as a
magistrates’ court or a customary court sitting for the purpose of hearing
a charge against a juvenile
or exercising any other jurisdiction conferred on a
Juvenile Court by the Act. The Juvenile Court sits in an informal setting, in
a
room other than that in which an ordinary court sits, and in camera. The
privacy of the juvenile is further protected in that
no person is allowed to be
present in a Juvenile Court other than officers and members of the court, the
juvenile concerned and his
parents or guardian, the social welfare officer
concerned, and any such other persons as the court may authorize to be present
(section
22 and 24). Section 25 (1) of the Children’s Act also protects
the privacy of the juvenile by criminalizing the publication
of the name and
address of the juvenile, or the name or address of the school that a juvenile is
attending or a photograph of the
juvenile, without the permission of the court.
The offence is punishable by a fine of P100 or a term of imprisonment.
Generally
both the official and the private media abide by this provision.
- There
is provision in the Act for cases against children under the age of 18 to be
brought to the attention of the district commissioner
of the district where the
offence was committed who can initiate inquiries by a probation officer into
their background if he/she
is satisfied prima facie that an offence has been
committed (s27). It is then open to the Commissioner to deal with the child
under
s17 of the Act which relates to children in need of care or to refer
him/her to the juvenile court. This provision has several consequences:
under
section 17 a child can be determined to be “in need of care” and as
a result sent to a school of industry or children’s
home or placed under
the supervision of a social worker. If the child does not obey he/she can be
guilty of an offence which can
be punishable by a caution or by corporal
punishment (s20).
- Cases
involving children under 18 can also be heard by the High Court which does not
sit as a juvenile court and is therefore not
bound by the provisions of the Act.
S9 of the High Court Act gives discretion to the court to exclude people from a
hearing, but
it is not mandatory. The magistrates’ courts Act lays down a
list of matters which must be referred to the High Court. This
is generally
based on offences which attract long prison sentences.
- A
child or juvenile dissatisfied with any decision or order of a juvenile court
may appeal or make an application for a review to
the High Court, in terms
of section 30 of the Children’s Act.
Sentencing: article 37 (a)
- There
is a statutory requirement that the juvenile court takes into account the
general conduct, home environment, school records
and medical history of a child
or juvenile when sentencing those found guilty. This would normally be reported
on by someone performing
the role of a probation officer who would make
recommendations as to the appropriate sentence in a social enquiry report which
is
prepared in all cases. A juvenile court is given the power to dismiss the
charges against the juvenile or to place the juvenile
offender on probation for
a period of not less than six months or more than three years. Alternatively
the court may send the offender
to a school of industry for a period not
exceeding three years or until he/she attains the age of 21 years
(s28).
- Some
magistrates have complained that some of the social enquiry reports are
inadequate and social workers have complained that courts
do not give much
weight to their reports. There is thus a need for training and sensitization of
both parties to ensure the spirit
of the Act is maintained. In-service courses
for social workers have been conducted to address this problem. Another
constraint
is that social workers’ reports take longer to be prepared
because of the acute shortage of resources in terms of qualified
personnel and
transport, which would facilitate the speedy preparation of the report. Not all
villages in Botswana have a social
worker due to the lack of qualified human
resources.
- Presently
juvenile criminals placed on probation are put under the care of social welfare
officers who engage them in rehabilitative
projects such as carpentry, pottery,
knitting and poultry farming. Resources are however not always available for
such projects.
- In
passing sentence any court should, in terms of the law, take into account the
age of the offender. For instance section 304 of
the Criminal Procedure and
Evidence Act provides that any court in which a person under the age of 18 has
been convicted may instead of imposing a punishment of imprisonment
order that
he be placed in the custody of a suitable person. In terms of section 27 (1) of
the Penal Code, a sentence of imprisonment
cannot be passed on any person under
the age of 14 years.
- The
High Court has powers to imprison. However all courts send children aged
between 14-18 to prison, as reflected in the Annual
Reports of the Prisons
Commissioner, partly because of the lack of alternatives.
- A
boy (under 18) convicted of an offence punishable with imprisonment may be
ordered to undergo corporal punishment in substitution
for such
imprisonment. The Penal Code provides that no corporal punishment shall be
imposed on females. Infliction of corporal
punishment must conform to the
provisions of the Criminal Procedure and Evidence Act, and
the parent/guardian of the child has a right to be present when such
corporal punishment is administered, as per section 305
thereof. In Clover
Petrus and Ano v. S,[25]
the court pronounced that corporal punishment per se is not inhuman and
degrading punishment, and that it is the administration of
such punishment in
instalments that is inhuman and degrading. It can be given in addition to or
instead of a prison sentence.
- The
death penalty cannot be imposed on any person below the age of 18 years.
However, a child may be detained at the President’s
pleasure at such a
place and for such a period that the President may deem reasonable, in lieu of
the death penalty (section 26 of
the Penal Code).
Table 7
Child offenders - Penal Code and non-Penal Code
offences
convicted in Magistrates’ (Juvenile) and High Courts
|
Total
offences committed by children (under 18)
|
Male
|
Female
|
Total
|
2000
|
854
|
129
|
983
|
1999
|
975
|
233
|
1 208
|
1998
|
723
|
76
|
799
|
4. Children deprived of their liberty: article 37 and physical
and psychological recovery and social reintegration of
the child:
article 39
- The
Constitution provides that no person should be deprived of his/her liberty
except in a number of circumstances listed in section 5. These include
(but are not restricted to) serving a sentence imposed by a court; arrest
on being suspected of committing or being
about to commit a criminal
offence; being of unsound mind or being a vagrant; and in the case of
under18yearolds detention is allowed
for their “education or
welfare” (s5 (1) (f)).
- When
anyone is arrested they can be held in custody by the police for 48 hours before
seeking a warrant for further detention from
a magistrates’ court or a
district commissioner (Criminal Procedure and Evidence Act). Special
arrangements are made for children who are arrested, including being confined in
separate cells from adults and being
given access to their parents and legal
counsel. These instructions are detailed in the Police Act, police circulars
and standing
orders.
- In
determining whether to grant bail in any particular case, age is a factor which
should be taken into account to decide whether
pre-trial detention is
appropriate (Part IX Criminal Procedure and Evidence Act). As a result children
tend to be treated more leniently than adults.
- As
detailed above the Children’s Act has a rehabilitative approach to
sentencing in juvenile courts, which dictates that those
under 18 should not be
sent to prison. However in practice customary courts, magistrates’ courts
and high courts do send children
to prison. All courts clearly do so as is
evident from the records of the total populations of girls and boys recorded as
being
incarcerated (see table below).
Table 8
Penalties imposed on child offenders by
magistrates’ and high courts
|
|
Fined
|
Other
|
Male
|
Female
|
Male
|
Female
|
Male
|
Female
|
2000
|
33
|
9
|
547
|
115
|
274
|
5
|
1999
|
58
|
5
|
648
|
212
|
269
|
16
|
1998
|
78
|
7
|
369
|
55
|
276
|
14
|
- The
offences for which children (under 18) received a penalty of imprisonment in
2000 were: indecent assault on a female (one male),
defilement (two males),
rape and attempted rape (two males), common assault (two males, one female),
assault causing actual bodily
harm (two males, two females), concealing
birth (one female), resisting arrest (one male), unlawful wounding (two males,
one female),
burglary (two males), breaking and entering (one male,
two females), robbery (one female), store burglary (five males), theft (six
males), arson (one female), malicious damage (one male), stock theft (two
males), and motor vehicle theft (four males).
- None
of the prisons separate convicted prisoners from prisoners awaiting trial who
have been denied bail.
- Currently
there is a prison for boys in Gaborone where conditions are poor and
overcrowded. It is due to be replaced by a separate
structure in 2002. The
boys who are admitted to this prison are generally aged between 16 years and 21
years although boys as young
as 14 or 15 are imprisoned there if sentenced.
This prison was put in place to avoid a situation whereby young offenders mixed
with
adult, hard-core criminals. Girls are held in prisons for women.
Table 9
Children in prisona
|
|
Girls
|
1998
|
1999
|
1998
|
1999
|
Under 16
|
232
|
11
|
5
|
-
|
16-20
|
815
|
449
|
58
|
68
|
a Source: Botswana Prisons and
Rehabilitation Service Annual Reports, 1998, 1999.
- In
terms of rehabilitative activities in prisons there are no special arrangements
for those under 18. Prisons employ social workers,
health workers, church
ministers and adult educators although these individuals are overstretched due
to the overcrowded conditions
of the prisons. The prison service offers
extramural labour to all inmates who consent and whose behaviour is acceptable.
They
live in the community and are employed by government authorities. There is
also a variety of vocational training courses offered
at the boys’ prison
such as brick moulding, carpentry and joinery, blacksmithing and horticulture.
There are other rehabilitative
activities including literacy education,
counselling and religious services which are available to all offenders. The
numbers who
can participate in such programmes are limited.
- In
relation to complaints about prison conditions or treatment the prisoners are
obliged to approach the prison staff or the prison
social worker. There is, in
addition a prison visiting committee in each district which reports to the
Minister for Labour and Home
Affairs and the ombudsman, who has readily
investigated cases relating to prison conditions. Prison officers do not
receive any
special training for dealing with those under 18 or in human
rights.
- It
is open to juveniles court and children’s courts to send children to the
School of Industries (under s34 (d) Children’s Act). There is currently
no functioning school of industry in Botswana but one is due to be opened in
late
2001. It will be the only such facility and will have a capacity of a
hundred residents. It will only admit male offenders in the
first phase
although females will be catered for in the second phase. Logistical problems
relating to acquisition of land and preparations
of plans contributed to a delay
in the construction of the school. Its purpose is to protect the public,
rehabilitate young offenders
and to equip them with skills.
B. Children in situations of exploitation, including physical
and
psychological recovery and social reintegration
1. Economic
exploitation: article 32
- Economic
exploitation of children is a grave concern to the Government. As a result, and
in furtherance of its international obligations
under several International
Labour Organization conventions that prohibit this practice, Botswana is
committed to ensuring that all
the children in Botswana are afforded protection
through various legislative and administrative measures.
- The
Employment Act (Cap 47:01) protects children against exploitation and hazardous
employment. The Act defines a child as a person
under age 15, and a young
person as a person who has attained the age of 15 years but is under age
18.
- A
child who has attained the age of 14 years and is not attending school may be
employed doing light work not harmful to his health
and development by a member
of his/her family and if such work is of a character approved by the
Commissioner of Labour. Where such
employment is other than of a domestic
character, where suitable accommodation is provided, the child must be readily
able to return
each night to the house of his parent or guardian or such other
persons as may be approved by his parent or guardian. For children
above age
14, the nature of the job that they can be employed to do should be “light
and must not be harmful to his health
and development, or dangerous or
immoral”. It is an offence to employ children and young persons on
underground work. Subject
to certain restrictions, children and young persons
shall not be employed at night.
- No
child shall be permitted to work more than 6 hours a day or 30 hours a week. A
child who has attained the age of 14 years and
is still attending school may,
whilst on vacation from school, be employed carrying out light work not harmful
to his health and
development for not more than five hours a day between 6 a.m.
and 4 p.m. No child shall be required during the course of employment
to lift,
carry or move anything heavy and likely to endanger his physical
development.
- Further
provision is made prohibiting the employment of a child on any kind of work
during the night unless in an emergency which
could not reasonably have been
foreseen and prevented or if the young person is employed under a contract of
apprenticeship or indenture
to learn.
- Despite
having such provisions, in terms of the practical enforcement the Department of
Labour has established that it was not possible
for them to determine the extent
of compliance with the laws. It is not possible currently to determine the
actual statistics on
child labour in terms of numbers and the type of
employment. This is mainly because the labour inspection form which is
currently
being used does not require the employer to specify the ages of
employees. Noting this deficiency, the Department of Labour is currently
amending this form so that employers can state the number of children under age
15 employed, and those who have attained the age
of 15 but are under
18.
- The
Children’s Act provides that no child shall participate in the business of
hawking unless he/she has been requested so to
do as part of the family
business, with the sustenance of the family in mind. Children who are sent by
their parents to participate
in business ventures like hawking usually do so
during weekends, school holidays and/or after school. These children would in
most
cases be accompanied by their parents. Children go into this type of
business venture so that they may assist their parents to raise
money for
augmenting whatever source of income they have. It must however be noted that
there are a small number of children who
have homes in the towns but spend their
days on the street. These children have resorted to car washing as a source of
income.
- Although
there are no statistics available there is an undetermined number of children
who work. A sizeable number of children work
as babysitters or as herd-boys, or
assist their parents who have been employed as domestic servants or farm
labourers. These children
work long hours and carry out duties which may fall
under the ambit of hazardous employment as defined by the Employment
Act.
2. Drug abuse: article 33
- In
urban areas there is increasing abuse of marijuana and prescription drugs
(notably Flunitrazepam, sold under the trade name Rohypnol)
secured illegally.
Botswana has a National Drug Council with membership from the Police and
Ministry of Health among others. The
Council registers drugs and determines
which drugs will be sold over-the-counter. It is an offence to have
habit-forming drugs without
a prescription and specific provisions exist
outlawing the possession of drugs in the Penal Code and the Habit Forming Drug
Act.
There is a perception within government that more needs to be done to
combat drugs, and to understand the extent of the problem.
- Botswana
has ratified the Protocol on Combating Illicit Drug Trafficking in the
Southern Africa Development Community Region and acceded
to the 1988 United
Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.
- Street
children are known to abuse glue by sniffing and methylated spirits by drinking.
Alcohol cannot legally be sold to people under
age 18, but is often available to
children.
3. Sexual exploitation and sexual abuse: article 34
- Sexual
exploitation and the abuse of children is rapidly increasing in Botswana,
despite the existence of legal mechanisms proscribing
this practice and the
stiff penalties that have been introduced. With the advent of the HIV/AIDS
epidemic young children, especially
young girls, find themselves vulnerable to
sexual abuse for a variety of reasons, such as that they are considered unlikely
to be
HIV-positive. Girls are attracted by the material inducements offered by
older men who offer them money and gifts in exchange for
sex. It is also the
case that girls work as commercial sex workers. Also some cultural practices
such as Seantlo exist whereby if a husband dies his elder or younger
brother marries his wife, which put young widows in a vulnerable
position.
- The
number of cases of sexual abuse and violence reported to the police is high and
rising although it is understood that also many
cases are not reported due to
the powerlessness of children, and that the perpetrators are often the sole
breadwinners in the household
and to report them would undermine the family
income. In many cases the abuse takes place within the family setting and
therefore
such cases are rarely reported due to coercion by the perpetrator and
shame and fear on the part of the child. This is further complicated
by the
fact that there is no lower age limit on customary marriages and that the
current minimum ages for civil marriage are 14 and
16, for girls and boys
respectively.
- There
are a variety of provisions in the Botswana Penal Code which deal with sexual
abuse and exploitation. Section 141 holds that
any person who has unlawful
carnal knowledge of another person or who causes the penetration of a sexual
organ or instrument into
the person of another without consent is guilty of
rape. In law corroborative evidence is required by a court to convict an
accused
of rape. This means that conviction rates are very low particularly in
comparison to other offences. It is felt that the corroboration
rule undermines
the value of the evidence of women and girls. Any person charged with rape is
not entitled to bail and upon conviction
is liable to life imprisonment with
corporal punishment.
- Any
person convicted of the offence of rape shall be required to undergo an HIV test
before sentencing. If the test is positive he
will be liable to a minimum term
of 15 years’ imprisonment if it is proven that he was unaware of his
HIV-positive status and
for a minimum term of 20 years, if he was aware. This
has been reviewed by the Court of Appeal after an application that the test
was
discriminatory under the Constitution. The court held that section 142 (4)
as amended is not unconstitutional. The court was of the view that “...
the legislation
is reasonably necessary in a democratic society, as Botswana is,
to abridge the freedom from discrimination provision of the Constitution, in
order to combat the spread of HIV/AIDS pandemic which has afflicted the nation;
and to deter the increasing incidence of rape.
If an offender commits rape and
it turns out that he is HIV-positive at the time of the offence, he is liable to
the enhanced punishment.
It matters not whether he is aware at the time he
commits the offence or not. Sufficient notice has been given by Parliament of
this result for every male within the jurisdiction to know that he is liable to
this penalty if, having the virus, he violates a
woman.”[26]
- Any
person who indecently assaults a girl below the age of 16 is guilty of an
offence even if consent was obtained from the victim. This also applies
even where there was reasonable cause to believe that the victim was above age
16. Indecent assault is punishable by a term of imprisonment of maximum
seven years (section 146 Penal Code).
- Any
person who indecently assaults a boy under 14 is guilty of an offence and is
liable for a prison term of maximum seven years (s166
Penal Code).
- The
unlawful carnal knowledge of a girl below the age of 16 is an offence which is
called defilement. It is a defence to this charge
that the person charged
believed, and had reasonable cause to believe, that the girl was above 16, or
believed that she was his wife.
The offence is punishable by a minimum term of
10 years’ imprisonment.
- Incest
is outlawed in paragraphs 168 and 169 of the Penal Code. The maximum sentence
is five years unless the victim is a girl under
13 in which case the maximum
sentence is life. If the victim is a girl under 21 and the offender is male
then the court has the
power to strip the offender of his authority over or
guardianship of the girl.
Table 10
Incidents of sexual violence in Botswanaa
|
|
Arrestedb
|
Found not guilty
|
Case withdrawn
|
Convicted (total)
|
Prison
|
Fine
|
Other penalty
|
Adult
|
Child
|
Adult
|
Child
|
Adult
|
Child
|
Adult
|
Child
|
Rape and attempted rape
|
1999
2000
|
1 345
-
|
941
846
|
225
169
|
443
445
|
257
210
|
16
22
|
252
202
|
3
2
|
1
1
|
-
-
|
4
7
|
13
20
|
Indecent assault on a woman
|
1999
2000
|
92
-
|
67
58
|
8
3
|
38
34
|
20
18
|
1
3
|
13
9
|
-
1
|
1
2
|
-
-
|
6
7
|
1
2
|
Incest
|
1999
|
10
|
9
|
1
|
6
|
2
|
-
|
2
|
-
|
-
|
-
|
-
|
-
|
|
2000
|
-
|
7
|
1
|
5
|
1
|
-
|
1
|
-
|
-
|
-
|
-
|
-
|
Defilement of a girl under 16
|
1999
2000
|
143
-
|
93
124
|
23
13
|
50
82
|
20
26
|
-
3
|
20
24
|
-
2
|
-
-
|
-
-
|
-
2
|
-
1
|
Child stealing
|
1999 2000
|
1 -
|
1 1
|
- -
|
- 1
|
1 -
|
- -
|
- -
|
- -
|
1 -
|
- -
|
- -
|
- -
|
a Source: Commissioner of Police
Statistics, 1999, 2000.
b All offenders are men except for one woman who
was found guilty of rape/attempted rape and imprisoned, 1999.
- The
Children’s Act provides that any parent or guardian having custody of a
child is guilty of an offence if he/she causes or
conduces to the seduction,
abduction or prostitution of the child.
- In
criminal cases where the child is a victim of abuse, the proceedings are held in
camera to protect the identity of the child.
Only authorized officials and the
parents are allowed inside the courtroom and proceedings cannot be published
disclosing the identity
of the child (s172 Criminal Procedure and Evidence
Act).
- Such
is the concern about levels of sexual violence that the Botswana Police Service
commissioned a study on rape in Botswana. This
was completed in December 1999
and was followed by a multisectoral conference where the outcomes were discussed
and recommendations
made. The Conference “Taking a Stand Together against
Rape and Sexually Related Crime” took place in March 2001. The
recommendations were wide-ranging and related to police facilities, training and
practice, law reform, media sensitization, and general
education and awareness
raising. This was followed by rape and defilement taking a high profile place
in the crime prevention campaign
organized by the police in the forms of leaflet
distribution and advertisements.
- The
police have also introduced the “Neighbourhood Watch Scheme” which
is made up of neighbours in a particular location.
The neighbours police each
other so that when crimes are committed, they can be reported promptly to the
police for immediate action.
The neighbourhood watch committees have proved to
be useful and effective. The Botswana Police are shifting emphasis to community
policing and, as part of the programme, they aim to incorporate community safety
into youth education curriculum. The police have
introduced anticrime clubs in
schools to assist children to make reports of criminal activities. Trained
officers go into schools
to work with children who are in these clubs. In
addition the police in urban areas have crime prevention teams working directly
with street children to enable them to report abuse.
- Professionals
involved in child related services such as teachers, social workers and the
police have been sensitized to working with
children who have been abused and
reporting cases of which they become aware. They are increasingly using
child-friendly mechanisms
in their work. The introduction of Guidance and
Counselling in schools has provided children with an avenue for reporting abuse
and obtaining support at school.
- It
is a crime in Botswana to have an abortion unless it is under the circumstances
set out in the Penal Code which include termination
within the first 16 weeks of
pregnancy if the pregnancy results from rape. This must be subject to medical
opinion and carried out
by approved medical personnel. Given that the age of
legal capacity is higher than the age of consent, girls and young women are
in a
position of requiring parental consent for an abortion even when it is legal for
them to have sexual intercourse. This provision
may inhibit their ability to
seek a legal abortion. Illegal abortions particularly endanger the lives of
girls and young women since
the persons who carry out the abortions are not
always qualified to do so, nor have the facilities to ensure the woman’s
health
is not put at risk.
- NGOs
have joined the drive to assist women in preventing sexual abuse and
exploitation. The concerted efforts of organizations such
as Childline
Botswana, BOFWA and Women Against Rape have been crucial in service provision
and advocacy. The Government is cognizant
of the efforts made by this
organization, and provides financial assistance in the form of grants. There
are also other major international
donors who support the work of these
groups.
4. Sale, trafficking and abduction: article 35
- The
sale and trafficking of children is practically unknown in Botswana but the
Penal Code and the Children’s Act make the abduction
of children
criminal offences. There is a specific offence of abduction from Botswana
(sect. 250) and of kidnapping from lawful
guardianship of a boy under 14 or a
girl under 16 (sect. 251). There are also provisions criminalizing abduction
and kidnapping
(sects. 252 and 253).
- There
have been isolated reports of practices of abduction of children for ritual
murder and extraction of their organs. Despite
concerted efforts by the police
and community to arrest the perpetrators, the cases have not been
resolved.
5. Other forms of exploitation: article 36
- Another
group of children of particular concern to the Botswana Government are street
children. These generally constitute children
who have dropped out of formal
school and because of inadequacies in the system could not be reabsorbed. They
come mostly from poor
families and are largely found in the main urban areas.
There are efforts by some NGOs to assist these children. The Botswana Christian
Council is currently the only NGO that operates an active programme that aims at
getting street children back to school, providing
training to those over the
primary school age of 10. The major constraint on NGOs is their lack of
resources to provide services,
or to expand their programme. MLG is undertaking
a national needs assessment on street children during the NDP 8 period. The
study
is being undertaken by the Division of Social Welfare and will commence in
November 2000 and should be complete by mid-2001.
C. Children belonging to a minority or indigenous group:
article 30
- In
Botswana there are numerous ethnic groups whose existence is recognized in the
Constitution and who are guaranteed representation in the House of Chiefs. Some
of the smaller groups or tribes are not represented and recently
the Botswana
Government constituted a Commission of Inquiry into this matter. The
conclusions of this Inquiry (Balopi Commission)
were published in April
2001.
- Children
of minority or indigenous groups often live in remote districts. Some of these
people are the Basarwa (San or Bushmen).
There have been criticisms that the
way of life of the Basarwa communities has been threatened. They were
originally nomadic hunter-gatherers
but other demands on the land which they
have traditionally inhabited means they are unable to sustain this lifestyle.
In the early
years of their development they do not usually speak Setswana or
English and have to make a difficult adjustment to another language
and way of
life, often facing negative attitudes towards their own culture. The Government
of Botswana has initiated special efforts
to assist this group to preserve their
cultural heritage.
- The
Government also has an integrated programme for assisting all those who live in
remote areas called the Remote Area Development
Programme. This is coordinated
from the MLG and began in 1974. It recognizes that some citizens of Botswana
are socio-economically
marginalized and require special attention. The overall
goal of the programme is to promote the social, cultural and economic
development
of the remote area dwellers so they can benefit equally from the
rapid growth of the country. Specifically this involves intensified
development
of remote settlements, promotion of income-generating activities, enhancement of
the remote area dwellers’ access
to land, encouragement of community
leadership and active participation, provision of training and education and
social, cultural
and economic advancement as well as preservation of their
unique culture and traditions.
- The
target group of this programme is defined by geographic remoteness and
socioeconomic marginalization. They live in small, scattered
communities far
from basic services; they are poor and lack livestock ownership; they rely
heavily on hunting and gathering and are
marginalized ecologically as their
resource base is deteriorating; they are culturally and linguistically
different; they have low
levels of literacy and are underrepresented in public
office. It would be fair to say that the majority of the people who fall under
these definitions are Basarwa but not all remote area dwellers are Basarwa and
not all Basarwa are Remote Area Dwellers.
- The
approach of the Remote Area Development Programme has been to encourage the
development of permanent settlements to allow for
the provision of basic social
services. The main programme components are the provision of safe water, health
facilities, primary
schools and hostels for pupils, and an economic promotion
fund. The objectives are to promote production-oriented activities, create
employment opportunities, assess and exploit resources available in each
community and diversify community involvement in development;
challenge and
promote community participation in alleviating unemployment; making communities
selfreliant.
- There
are approximately 63 officially designated remote area dweller settlements.
Settlement policy is decided by the Ministry of
Lands, Housing and Environment.
Remote area dwellers outside of these areas are included in the programme
through the work of the
extension officers.
Notes
1 In April 2001, 1 US dollar was roughly equal to 5 pula
(P5.00).
[2] J. Amissah in
Attorney-General v. Unity Dow, Court of Appeal, 1992 Botswana Law
Reports 119.
[3] Report on a Review of
All Laws Affecting the Status of Women in Botswana, Sept. 1998, p. 13.
[4] Ibid., p 15.
[5] Ibid., pp. 42-79.
[6] Vision 2016: A Long
Term Vision for Botswana, p. 12.
[7] Ovoya v. Ovoya
MC 7/76, Masala MC/1993, Isaac MC/1990 (all unreported High Court decisions,
cited in A. Molokomme “Custody and Guardianship
of Children in Botswana:
Customary Laws and Judicial Practice within the Framework of the
Children’s Convention” in Welshman
Ncube, Law, Culture Tradition and
Children’s Rights in Eastern and Southern Africa, Dartmouth, 1998.
Hereinafter “Molokomme”.
p. 191).
[8] Keatile v.
Keatile MC 6/1989 cited in Molokomme, p. 191.
[9] Malope v. Malope
MC 67/1986, Ovaya v. Ovaya C 7/1976 cited in Molokomme, p. 12.
[10] Keatile v.
Keatile, Tadubana v. Tadubana, Rangongo v. Rangongo cited in
Molokomme, p. 193.
[11] 1982 (1) BLR 25.
[12] Misca F58/1990,
unreported High Court cited in Molokomme, p. 196.
[13] Misca F45/995,
unreported High Court cited in Molokomme, p. 197.
[14] Molokomme, p.
183.
[15] MC 150/1982.
[16] MC F29/1990.
[17] Molokomme, pp.
197-201.
[18] Criminal Trial No.
40 of 1993.
[19] Clover Petrus and
Another v. The State, Court of Appeal, 1984 BLR 14.
[20] Linchwe v.
Linchwe Civil Appeal 8/1982, Mosinyi v. Mosinyi 1981 BLR 123.
[21] Page 86.
[22] Misca 13/96.
[23] Agnes Bojang v.
The State Mis.Cr.App. No. 6 of 1993.
[24] MISCRA No. 2/99.
[25] Court of Appeal,
1984 BLR 14.
[26] Amissah, J.P. in
Dijaje Makuto v. The State; Criminal Appeal No. 31 of 1999, p. 17.
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