Following the interrogation of the Botswana delegation led by Presidential Affairs Minister Kabo Morwaeng recently, the United Nations Committee on Human Rights last week released its findings which show that it is still unhappy with Botswana’s reluctance to implement some of its recommendations.
According to the findings, the Committee regrets Botswana’s position that it does not plan to abolish the death penalty nor to impose a moratorium.
It reiterates its concern that death sentences continue to be imposed and carried out.
The Committee is also concerned that no applications for mercy before the Advisory Committee on the Prerogative of Mercy have been successful and regrets the lack of information on the criteria applied for determining the success or failure of such applications.
It is further concerned that sufficient time is not afforded for the preparation of clemency petitions despite the ruling of the Court of Appeal on the case Gabaakanye v. the State in 2016.
The Committee takes note that the death penalty is mandatory for the crimes of murder and treason and reiterates its view that mandatory imposition of death penalty for any crime is in violation of article 6.2 of the Covenant.
As a result, the Committee urged Botswana to revise the Penal Code so as to make it strictly compliant with article 6.2 of the Covenant and restrict the crimes for which the death penalty may be imposed to the most serious crimes, understood to be crimes involving intentional killing;
Botswana should also increase its efforts towards commuting the death penalty imposed on persons on death row to life imprisonment and ensure that prisoners and their families are informed in advance of the date of the execution, and that the body is returned to the family for private burial.
Botswana was also urged to consider embarking on a political and legislative process aimed at the abolition of the death penalty and carry out public advocacy efforts and campaigns to promote that objective, including a public debate on the death penalty on the basis of a full presentation of all aspects of the matter, especially the importance of achieving progress in the enjoyment of the right to life.
The Committee is concerned at the lack of comprehensive anti-discrimination legislation and at the fact that section 15(4) (b), (c) and (d) of the Constitution continues to provide for exceptions to the right not to be discriminated against. The Committee is also concerned that the 2019 ruling of the High Court of Botswana in the case of Letsweletse Motshediemang v. Attorney General requesting that Section 164 of the Penal Code criminalising same-sex relations be repealed has not been implemented yet due to an ongoing appeal by the Attorney General.
The Committee is concerned that the Penal Code does not contain a criminal offence of torture. It is further concerned at the lack of an independent, effective and accessible mechanism to receive and investigate complaints of torture and ill-treatment of persons deprived of liberty and regrets not having received information on: a) the establishment of an independent institution to visit and monitor places of deprivation of liberty; and b) the number of complaints received, investigations conducted, penalties imposed and measures of rehabilitation and forms of redress provided to victims.
The Committee recommended that Botswana adopt a regulatory framework on torture, including the introduction of a criminal offence of torture in its Penal Code that reflects and is in compliance with relevant international standards.
It says Botswana should also conduct prompt, thorough, effective, independent and impartial investigations into all allegations of torture and ill-treatment, in line with the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ensuring that perpetrators are prosecuted and, if convicted, punished appropriately and that victims receive full reparation.
The Committee is concerned that section 25 of the Penal Code and Section 90 of the Children’s Act establish corporal punishment as a non-custodial sentence, and sections 114 and 115 of the Prison Act establish corporal punishment as a disciplinary measure for prison offences, in the form of caning which, by its very nature, is a violation of human rights.
It says Botswana should take the necessary legislative measures to explicitly prohibit corporal punishment in the administration of justice and repeal provisions of its legislation providing for punishments that constitute violations of human rights.
While the Committee acknowledges the measures taken to improve prison conditions and takes note of the information provided by the delegation that the current prison occupancy is 91%, it however regrets not having received information on the number of detainees in pre-trial detention nor on the average length of pretrial detention.
In this regard, the Committee is concerned that article 133 of the Criminal Procedure and Evidence Act provides for pretrial detention of excessive duration. It is further concerned at reports that detainees who are declared unfit to plead at trial are subject to indefinite detention.
Botswana, the Committee said, should continue with its efforts to ensure that conditions in places of detention are fully in line with the United Nations Standard Minimum Rules for the Treatment of Prisoners and increase the use of non-custodial alternative measures, including bail, and ensure that pretrial detention is an exceptional, reasonable and necessary measure based on individual circumstances and is as short as possible, in line with the provisions of the Covenant, and that it is reviewed on a regular basis.
It calls on Botswana to review the legal and administrative processes for detainees who are declared unfit to plead at trial to ensure that they are not subjected to indefinite detention.
