At a cursory glance, Botswana’s session with the UN Human Rights Committee seems like a bad case of culture shock.
The scene opens with the UN human rights tribunes in their soapbox, grossed out that the Botswana Children’s Act (2009) endorses flogging as a form of punishment for child offenders. “Please indicate what steps have been taken to repeal the provisions of the Children’s Act of 2009 and the Education Act of 1967 that permit corporal punishment, and provide information on measures taken to explicitly prohibit corporal punishment in school, in the home, in the juvenile legal system and in any other setting. Please describe any efforts made to raise awareness among relevant professionals and parents about the harmful impact of corporal punishment on children.”
The Botswana delegation on the other hand is horrified that the UN body expects the country to incarcerate its underage offenders in juvenile prisons. The Botswana delegation to the UN Human Rights Committee argued that Botswana “ is well aware that it must, ultimately, adopt measures that reform and rehabilitate children who have offended against the society, but it is currently faced with a situation where the majority of its population, including children, have not been persuaded that detention of children in places of safety (the current popular method) is necessarily humane and non-degrading. The criminal justice system generally loathes to send young offenders, especially those in schools, to prison.”
At this point, it’s hard to conclude that truth lies on one side or the other.
The Botswana delegation however wasn’t done making their point. They went further, hitting the high spots: “The pain inflicted, a maximum of six strokes with a cane whose size is regulated by law does not meet the torture standard. The resultant injury is less than the type that could result from a rough game of football, body piercing, tattoos, boxing match etc. It is argued that it cannot be the injury to the child that is found objectionable.The humiliation that results, which appears to be the main objection to corporal punishment, is less than the humiliation a Motswana child would feel if he were sent to a juvenile centre or prison. Humiliation, it is argued, occurs in cultural context. Juveniles sent to places of safety/detention centres are removed from the positive influence of their parents and family members and afterwards consider themselves ‘government children’ and reject guidance from family members. Life in Botswana revolves around family and family events and if it is lived primarily outside – incarceration, of whatever nature is a harsh and humiliating treatment. Children who have been to detention centres can expect to be stigmatized as ‘criminals’ whilst children who have been lashed for exactly the same crimes are generally not considered as criminals. For punishment to be potentially reformative, the person receiving the punishment must see it as such. Juveniles accept corporal punishment as intended to reform them and incarceration as punishment intended to take them away from their families. Corporal punishment is quick and over in a few minutes and allows the juvenile to go on with his life; and juvenile offenders would choose corporal punishment over any other form of punishment any day.”
That seemed like a real sledge-hammer argument. From here on, however, the apparent cultural mixed message assumes a sinister hue.
As it turns out, Botswana was arguing the toss. The UN Human Rights Committee is stuck in absolutism. It marches to the beat of a specific list of truths, which should be expressed only with a specific set of concepts, which call for exactly the same behaviour around the world. It is a classic case of, If all you have is a hammer, everything looks like a nail. Their final verdict is a foregone conclusion: “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 article 7 of the Covenant (art. 7). Recalling the Committee’s previous recommendation (CCPR/C/BWA/CO/1, para. 19), the State party 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 article 7 of the Covenant. Liberty and security of person,”
At this point, the committee seemed like a court of Western opinion that increasingly resembled a kangaroo court. Just when it seemed like it could not get any worse, it did. The committee seemed fixated on the presumption that the Botswana delegation should express their moral truths using the western set of concepts. For example they insisted on using the western frame of reference to judge Setswana traditions like “bogadi” and “go roula” which they vilified as “ harmful practices” which are “ incompatible with the principle of gender equality.”
The UN Committee prodded the Botswana delegation to “please provide information on whether traditional harmful practices that appear incompatible with the principle of gender equality and with articles 2–3 of the Covenant persist, including widowhood rites and the payment of bogadi (a dowry paid to the family of the bride). Please describe any measures taken by the State party to eliminate such practices.”
The Botswana delegation was at pains explaining that, “ Botswana does not regard widowhood rites (go roula) and dowry (bogadi) as harmful cultural practices. Those who practice bogadi state that its purpose is to demonstrate gratitude towards the bride’s family, stating that it should never be construed to be a transactional exercise. On the other hand, those who practice widowhood rites state that these are meant to cleanse the widow (and sometimes the widower) of perceived defilement related to the death of a spouse. There are, of course, concerns that these rites oppress people, mostly women. It must, however, be noted that Bogadi and widowhood are customs and not laws. People are therefore not compelled to follow or practice any of these customs, so there are no repercussions for not following any of these practices.”
Ms. Molokomme, a respected local women’s rights activist explained that, “Bogadi was a traditional practice according to which a groom’s family gifted livestock to the bride’s family as a token of appreciation and so that the children borne of the marriage would be recognized as full members of their father’s family. Any abuse reported to the elders or customary courts was sanctioned. While bogadi was not necessary for a marriage to be considered legal, it was important in terms of the wife’s respect among the community. The communities that practised widowhood rites stated that they were meant to cleanse a widow of the shadow created by her husband’s death and to enable her to remarry. While they might appear harmful from the outside, such practices were in fact meant to protect the widow and her family from harm. In cases where detrimental treatment was identified, social workers were sent to educate the community in question against harmful practices.”
Even Botswana’s much venerated Kgotla system was slighted by the UN committee. In Botswana, the Kgotla is a platform for regular discussions, consultations and exchange of ideas on major community or national issues among citizens. It promotes and embraces the idea that everyone is entitled to their opinion (“Mua lebe obua la gagwe”). The open forum encourages tolerance and freedom of expression among people who might have different views. The system further advocates the idea that “ntwa kgolo ke ya molomo” (no fight should result in fistfights; the fiercest of fights is verbal). Hence, through Kgotla local communities are able to request audiences with their traditional leaders, their representatives in Parliament, and even their President if they feel they have something to get off their chests.The Kgotla is also a vehicle for resolving disputes among local communities. It resolves both civil and minor criminal cases.
To the UN Committee, the Kgotla and Ntlo ya Dikgosi are dual symbols of flag-waving oppression and discrimination. The committee quizzed the Botswana delegation to “please provide detailed information on measures adopted to ensure that the process for selecting members of the Ntlo ya Dikgosi guarantees the fair representation of non-Tswana tribes. Please comment on reports that the Bogosi Act of 2008 discriminates against non-Tswana tribes, given that few non-Tswana tribes have been recognized under the Act and many non-Tswana tribes are unfamiliar with the kgotla, which is the primary decision-making structure under the Act and which has its origin in the Tswana culture.”
The Botswana delegation explained that, “It is not correct to state that any tribe in Botswana is unfamiliar with the kgotla. All tribes in Botswana have a custom and practice of assembling to discuss matters that affect them. Such assembling has, from time immemorial, in all tribes, been led by the elected head of the tribe or community. History shows that even though Basarwa had no permanent Kgosi and they were nomadic, they assembled from time to time to select their leader, to settle disputes and to discuss matters that affect them. The same applies to all tribes which settled in Botswana. History tells that they always had nominated leaders who headed them and that the tribes gathered from time to time at the behest of their leaders, to discuss matters that affect them. That is the concept of a Kgotla. A Kgotla is not in any way a concept that should be attributable to any tribe in Botswana, so as to infer that it has been imposed on other tribes who originally did not have it.
“In Botswana the Kgotla is a public consultation forum which contributes to the Parliamentary business and national development planning in the sense that it is where elected representatives at Council and Parliamentary level, Dikgosi as well as Government official engage with the citizens about envisaged laws, national development plans and projects. All citizens of Botswana, including Basarwa, are allowed to participate in the public affairs of the country through Kgotla meetings. The mode of communication at every Kgotla meeting is the language which is spoken by the people in the locality. Translation services are voluntarily offered for those who do not understand English or Setswana, in the event that the person who is addressing the meeting is not conversant with the local language. Basarwa and all other tribes in Botswana are therefore able to participate and contribute to the laws, national development plans and projects which are discussed at the Kgotla.”
“Parliament is obliged to refer laws to Ntlo ya Dikgosi (House of Chiefs), which is an advisory body of Parliament. The Dikgosi (Chiefs) who are members of the Ntlo ya Dikgosi consult their tribes on matters that affect them through the Kgotla. Basarwa are represented at the Ntlo ya Dikgosi . Reference is made to the case of Kamanakao and Another v. Attorney General 2002 (1) BLR 110 (HC) in which the Applicants challenged the legality of a) Sections 77 to 79, 15 (4) (d), 15 (9) of the Constitution; and b) Section 2 of the Chieftainship Act that were considered discriminatory against minority tribes. These provisions created the Ntlo ya Dikgosi (House of Chiefs) with only eight (8) tribes represented, to the exclusion of others tribes in Botswana, Basarwa included in those tribes which had no representation at the Ntlo ya Dikgosi. The Court held that the Chieftainship Act was discriminatory and called for its amendment. The Chieftainship Act was subsequently repealed by the Bogosi Act in 2008 which allows for the representation of other tribes which were originally not represented in the Ntlo ya Dikgosi, including Basarwa.
“The Government of Botswana did not only amend the Chieftainship Act, but it amended the Constitution as well. As a result, the current Sections 77, 78 and 79 of the Constitution reflect a representation of all tribes and regions in the Ntlo ya Dikgosi. The Constitution stipulates the composition of Ntlo ya Dikgosi to ensure representation of all tribes. In particular, Ntlo ya Dikgosi comprises additional members from 12 Districts, five (5) appointed at the President’s discretion and twenty (20) elected by Regional Electoral Colleges, to afford representation of other tribes residing in all the eight (8) districts of the country in the Ntlo ya Dikgosi. Over and above the Kgotla system, there are other structures which facilitate equal political participation and representation of all Batswana at all levels of the country’s development process. There are Ward and Village Development Committees at community level, District Development Committees at local level and Ministries that coordinate at national level. Basarwa are found within these committees especially at community and district levels, with liberty to being included at national level to coordinate development strategies and programmes through employment in Government Ministries/ Departments.”
To their credit, the committee pointed out that the Ntlo ya Dikgosi as currently constituted does not align with its progressive ideology of equality and equity. They stated that, “the Committee is concerned that, despite legislative amendments, current rules regarding appointments to the Ntlo ya Dikgosi do not guarantee a fair representation of non[1]Tswana tribes, in particular that: a) the Constitution still allows preferred status for the Tswana tribes and the de facto automatic appointment of their Chiefs in the Ntlo ya Dikgosi; b) few non-Tswana tribes have been recognized under the Bogosi Act of 2008. Recalling the Committee’s previous recommendation, the State party should take all the necessary legislative measures to repeal any discriminatory element in the appointment and representation of tribes in the Ntlo ya Dikgosi, and to ensure fair representation of non-Tswana tribes.”
All in all, what emerged from the Botswana session with the UN committee is that Botswana has different standards of ethical behaviour—and different ways of handling unethical behaviour while the UN Committee on the other hand is pushing for an Esperanto on global ethics.
