It certainly took a long time coming but the Botswana parliament is finally closing a very dangerous loophole in the Penal Code that has existed for some 52 years.
Among a raft of amendments to the Penal Code is a section on cannibalism which the Roman-Dutch law that adopted in 1884 has not attached criminal liability to. The United Kingdom of this era, as today’s, didn’t have an offence of cannibalism in its statutes. Such state of affairs was bequeathed to Botswana at independence in 1966 and that has remained the case until now.
The Minister of Justice, Defence and Security, Shaw Kgathi, has initiated a process to criminalise cannibalism – but only allow it under highly unusual circumstances. The proposed addition to the Penal Code reads in full: “A person who wilfully ingests the flesh or blood of a human being commits an offence termed cannibalism and shall be sentenced to a minimum term of five years imprisonment or to 14 years’ imprisonment.” In no way is anyone is being encouraged to do anything but as the law stands, if the police came upon anyone eating meat of another human being, it wouldn’t be possible to prosecute that person with cannibalism because the law doesn’t attach criminal liability to it.
However, the proposed law doesn’t outlaw cannibalism completely. A person facing a charge of cannibalism can defend himself (or less likely, herself) by “proving to the satisfaction of the court that the action taken … was taken under extreme life threatening conditions as the only apparent means of survival.” Botswana seems to have borrowed from legal precedents in other jurisdictions where courts ÔÇô or authorities, have deemed some form of cannibalism to be justified. Some three years ago, two Salvadorian fishermen were cast adrift by a storm at sea and one ended up eating the other. When he was rescued a year later, the survivor was not charged with murder but the family of the other man unsuccessfully sued him for P10 million for eating their relative. There is also the more well-known case of 1972 when survivors of a plane crash in the Andes Mountains kept body and soul together for 72 days by eating the frozen remains of those who had died. The exception in the proposed Botswana law anticipates a situation where one would be in a situation a lot similar to these international examples.
A related clause criminalises the possession of human flesh, body parts or human remains. This may or may not be the result of lobbying by the Albinism Society of Botswana. In the recent past, ASB’s Chairperson, Sergeant Kgosietsile, has asserted that absence of this particular law makes it very easy for witch doctors and their accomplices to hunt down and kill albinos whose body parts are supposed to make highly effective muti potions. A High Court judgement by Justice Ian Kirby has established that no section of the Penal Code creates an offence for being found with human body parts. The finding occurred on the back of a case in which a man who had been found with such parts had stood trial for murder. The difficulty that the prosecution faced was linking those parts to a specific individual who had been murdered. The accused, a traditional doctor, was set free.
The Albinism Society of Botswana has a theory that just like Tanzania, local albinos are also being hunted down and killed for their body parts which fetch a very high price on the black market. The elaboration of that theory is that some of the traditional doctors that ply their trade in Botswana originate from parts of Southern and Central Africa where albinos are not safe. The Society says that the culprits can’t be prosecuted because the law doesn’t criminalise possession of human remains.