Torture of undocumented nationals by soldiers irks court
Lesedi Mkhutshwa | Thursday June 26, 2025 11:50
The particulars of the offence state that Ndlovu, who was not authorised or permitted, was discovered mining at Lewis Albert's farm on May 30, 2025, at or around 10am.
According to Magetse such accounts of inhumane treatments have increased following the deployment of soldiers to assist in the suppression of illegal mining activity within the jurisdiction.
The magistrate said that he was informed by concerned court staff that on his first appearance, Ndlovu was in a visibly injured state with swollen eyes.
Furthermore, he stated that the court record reflects that he informed the presiding magistrate that he had been assaulted by soldiers.
“Same was noted before me on June 19, 2025. This is regrettably not an isolated incident,” continued Magetse. “In a previous matter of a similar nature involving Zimbabwean nationals accused of engaging in illegal mining, the accused persons appeared before this court without clothing and footwear.”
He also said that accused persons reported that they had been assaulted by soldiers, who allegedly burnt their clothes.
At the time, the court had no option but to discharge the accused, in the hope that the relevant authorities would take corrective action, he added. However, Magetse said it appears those efforts have gone unheeded.
He said the court cannot remain passive in the face of repeated allegations of inhuman and unlawful treatment.
“Judicial silence, or the mere discharge of victims without meaningful remedial action from state institutions, may inadvertently convey tolerance or acceptance of such conduct. In such circumstances, the court risks becoming complicit.
“Complicity, in this context, arises where the judicial arm fails to actively denounce, deter, or demand accountability for systemic abuses, thereby enabling a climate of impunity to take root,” he added.
In this regard, he stated that the court is obliged to recall the provision of Section 7(1) of the Constitution of Botswana, which states unequivocally “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”.
Furthermore, he shared that Section 10(2)(a) of the Constitution of Botswana provides that “every person who is charged with a criminal offence shall be presumed to be innocent until proved or has pleaded guilty”.
He stated that these constitutional protections apply universally, regardless of an individual’s immigration status or legal standing. The assault of accused persons during arrest, investigations and before conviction compromises the integrity of the criminal justice system, he added.
“This court thus finds it necessary to reiterate that Botswana’s justice system is founded on the rule of law not the rule of force. Foregoing the above, in line with the principles of accountability, and in their capacity as accounting officers, the Commissioner of the Botswana Police Service and the Commander of the Botswana Defence Force are hereby put on notice that, should such atrocities persist or fail to be promptly remedied, this Court will not hesitate to summon them to appear and account for the conduct of their respective officers implicated in acts of assault,” he added.
He also ordered Matsiloje Police Station commander to facilitate and ensure the prompt service of this order upon the Commissioner of the Botswana Police Service and the Commander of the Botswana Defence Force.
He noted that Ndlovu has already spent 18 days in detention, a period during which the deprivation of liberty and physical or psychological suffering effectively constitute a form of punishment.
To impose additional punishment without taking this into account would be unjust and contrary to principles of fairness, he added.
In this instance, the court finds that given the circumstances of inhuman treatment and the time already spent in custody, a discharge with caution best serves justice.