Botswana wanting in human rights
Innocent Selatlhwa | Monday March 27, 2023 06:00
The report, compiled by the US Department of State, says significant human rights issues included credible reports of arbitrary or unlawful interference with privacy and serious restrictions on free expression and media among other violations. The report states that the constitution and law prohibit arbitrary arrest and detention and provide for the right of any person to challenge his or her detention in court. While the government generally observe these prohibitions, compliance was found not to be universal. “The law also requires authorities to inform suspects of their rights upon arrest, including the right to remain silent, and requires authorities to file charges before a magistrate within 48 hours. Upon arrest, the police must produce an arrest warrant issued by a duly authorised magistrate upon the presentation of compelling evidence, except in certain cases, such as when an officer witnesses a crime being committed or discovers a suspect is in possession of a controlled substance. The DIS personnel have the power to enter premises and make arrests without warrants if the agency suspects a person has committed or is about to commit a crime,” reads the report. The report further states that though the law provides for a prompt judicial determination of the legality of a person’s detention, heavy court caseloads occasionally delayed this determination.
The country was reported to have a functioning bail system, and detention without bail was unusual except in murder cases, where it is mandatory. Detainees have the right to contact a family member and hire attorneys of their choice, but most could not afford legal counsel. Furthermore, the report found that the constitution and the law prohibits arbitrary arrest and detention and provides for the right of any person to challenge his or her detention in court. Overall, authorities generally respected these rights and legal requirements, although some complaints of violated rights have arisen related to the DIS’s exercise of its arrest powers. The researchers referred to the arrest of Khama twin brothers Tshekedi and Anthony. “On March 18, the DIS arrested an opposition Member of Parliament and his brother for 48 hours without any warrant or charges. The two were denied legal representation during their incarceration. On June 7, 2022 the DIS arrested the legal adviser for the Directorate on Corruption and Economic Crime (DCEC). The DIS’ actions were a continuation of ongoing political tensions between the DIS and the DCEC, whose Director General previously took the DIS to court over accusations that it (DIS) had attempted to confiscate files regarding corruption investigations into the DIS officials. The adviser had previously filed a supporting affidavit in the case filed by the DCEC opposing attempts from the DIS to access the case files,” states the report.
The American report also noted that while a writ of pre-trial detention is valid for 14 days and is renewable every 14 days, some detainees, however, waited several weeks or months between the filing of charges and the start of their trials. “Pre-trial detention in murder, rape, livestock theft, and robbery cases sometimes exceeded a year, but there were no reports of instances in which the length of detention equalled or exceeded the sentences actually imposed. Pre-trial detainees comprised 22.5% (2021 data) of prisoners, according to the NGO World Prison Brief. Delays were largely due to judicial staffing shortages and a backlog of pending cases,” reads the report. It also found that the constitution and law provide for an independent judiciary, and the government generally respected judicial independence and impartiality, but there were a few reports of executive overreach in a few high-profile cases. “These included an executive branch attempt to influence the trial outcome of a former minister accused of murder. Further, a tribal chief claimed that the presidency warned her that it would intervene in a case involving a dispute between the Balete tribe and the government,” the researchers wrote in reference to President Mokgweetsi Masisi’s alleged interference in the Forest Hill 9-KO case. The constitution and law provide for the right to a fair and public trial, and an independent judiciary generally enforced this right. Trials in civilian courts are public, although trials under the National Security Act may be secret. Defendants have the right to be present and to consult with an attorney in a timely manner. They also found that while in capital cases, the government provides private attorneys to work pro bono for indigent clients, courts tried those charged with noncapital crimes without legal representation if the defendant could not afford an attorney.
“As a result, many defendants were not aware of their procedural rights in pre-trial or trial proceedings. Some NGOs provided free but limited legal assistance. “ Botswana’s customary court system was also slammed by the report. While customary courts enjoy widespread citizen support and respect, they often did not afford the same due process protections as the formal court system according to the report. “Defendants do not have legal counsel, and there are no standardised rules of evidence. The quality of decisions reached in the customary courts varied considerably, and defendants often lacked a presumption of innocence. Tribal judges applied corporal punishment, such as lashings on the buttocks, more often than did formal courts. In the formal judicial system, there is an independent and impartial judiciary in civil matters, including for human rights cases, which includes a separate Industrial Court for most labour-related cases. Administrative remedies were not widely available. By mutual agreement of the parties involved, customary courts, which handle land, marital, and property disputes, tried most civil cases, but they often did not afford the same due process protections as the formal judicial system,” reads the report. While the constitution and law prohibit interference with privacy, family, home, or correspondence, the Americans noted reports that the DIS had developed capabilities for online surveillance. “A law enacted in February 2022 that gave security forces broad wiretapping powers and the ability to carry out unchecked undercover law enforcement operations, faced widespread condemnation from civil society over an encroachment on civil liberties. The law allows authorities to conduct wiretaps, compels communications companies to provide access and share data under threat of prosecution, allows for the creation of fake identifications in the national register, and gives authorities immunity on actions related to undercover operations,” they stated.
The researchers observed that journalists, human rights organisations, labour unions, as well as opposition lawmakers and lawyers’ organisations attacked the law, declaring it would allow unfettered interference in areas such as journalism, attorney-client privilege, and could even be a pretext for tampering with elections. The government stated the law was intended to address concerns raised by the Financial Action Task Force (FATF) over illicit financial flows. The law was later amended to remove warrantless wiretaps and instead established an oversight committee for surveillance.