Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-30T15:04:02.433Z Has data issue: false hasContentIssue false
  • English
  • Français

The Constitutuional Protection Against discrimination In Botswana

Published online by Cambridge University Press:  17 January 2008

Charles Manga Fombad
Get access Rights & Permissions [Opens in a new window]

Extract

At independence in 1966 Botswana, like most former British colonies, adopted a Constitution which included a Bill of Rights. Whilst this tried to reconcile the needs of maintaining public order with that of protecting human rights, it did not entirely remove some of the vestiges of authoritarianism and discrimination that had been associated with the preceding colonial administration. Since independence, the country has had to grapple with many problems caused by constitutionally sanctioned discrimination in many areas of its social, economic, and political life. Despite some half-hearted, improvised and short-term solutions, the problems just would not go away.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 1 , January 2004 , pp. 139 - 170
Copyright
Copyright © British Institute of International and Comparative Law 2004

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 It is necessary to point out here that our discussion is limited to the constitutional position. The Roman-Dutch/English common law principles that apply in Botswana also provide some protection against invidious protection against discrimination in other areas of the law. A good example is the refusal by courts to enforce discriminatory restrictive covenants or conditions in contracts. In administrative law, discrimination by government in administrative decision-making can be challenged in judicial review proceedings by, for example, arguing that the decision-maker took an irrelevant consideration into account or that he reached a decision that is unreasonable.Google Scholar

2 See The Reverse Discrimination Controversy: A Moral and Legal Analysis (New JerseyRowland and Littlefield 1980) 11–12.Google Scholar

3 See Christopher, McCrudden (ed) Anti-Discrimination Law (AldershotDartmouth 1991), at xiv.Google Scholar

4 See UNAIDS, Protocol for the Identification of Discrimination against People Living with HIV (Geneva UNAIDS 2002), at 7.Google Scholar

5 See Chandrachud, (ed) Aiyar, Pramantha. The Law Lexicon (2nd edn AllhabadWadhwa & Co 1997), at 798.Google Scholar

6 [1992] BLR 119.Google Scholar

7 See McCrudden, (ed) op cit xviii–xix.Google Scholar

8 See generally Fredman, Sandra, Discrimination Law (OxfordOxford University Press 2002) 67–8.Google Scholar

9 See generally Barron, and Dienes, , Constitutional Law (Black Letter Series 1991) 203Google Scholarand Devenish, Ge, A Commentary on the South African Bill of Rights (Durban Butterworths 1999), at 52.Google Scholar

10 This approach is fully discussed by Fredman, op cit 68–76, to which the discussion of this section of the paper is indebted.Google Scholar

11 Ibid 70–5. By contrast, both the European Court of Justice in P v S and Cornwall Country Council [1996] ECR 1-2143 and the European Court of Human Rights in Salgueiro da Silva v Portugal (unreported: ECHR, 21 Dec 1999) have held that discrimination against transsexuals in the former case and sexual orientation in the second case where included in the prohibition against sex discrimination.

12 This approach is also adopted in the European Convention on Human Rights, which states in Art 14 that the enjoyment of the rights and freedoms in the Convention shall be secured without discrimination ‘on grounds such as…’.Google Scholar

13 See also, Onkemetse, Tshosa, ‘The Application of Non-Discrimination in Botswana in the Light of Attorney-General of Botswana v Unity Dow: Judicial Approach and Practice’ 5 International Journal of Discrimination and the Law (2001) 189–202.Google Scholar

14 [1992] BLR, at 146–7.Google Scholar

15 Ibid, at 147.

16 (1985) 11 DLR (4th) 641 (SCC), at 649. This has been cited with approval in two South African Supreme Court judgments; De Klerk & Anor v Du Plessis 1994 (6) BCLR 124 (T) and Khala v The Minister of Safety and Security 1994 (2) BCLR 89 (W), at 92.Google Scholar

17 Per Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, at 329.Google Scholar

18 [1992] BLR, at 148.Google Scholar

19 Also see Art 27, which states that, ‘In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’Google Scholar

20 [1992] BLR 119, at 154.Google Scholar

21 MISCA 229/2001 (unreported).Google Scholar

22 Ibid, at 14 of the transcript.

23 As regards whether a restriction is justifiable in a democratic society, it has been said that this requires the courts to do a balancing exercise to determine whether the benefits to a democratic society resulting from the specific restriction demonstrably outweigh the detriment caused to a democratic society by the specific restriction. For a restriction to be reasonably justifiable in a democratic society, the restriction itself must be reasonable. From the facts of the case, no reasonable justification was given for the restrictions imposed by the directive. See generally Art 19, The Interpretation of Fundamental Rights Provisions London (1997) at 55.Google Scholar

24 [1996] BLR 710.Google Scholar

25 Ibid, at 728.

26 [1995] BLR 178.Google Scholar

27 See generally, Harris, DJ, Cases and Materials on International Law (LondonSweet & Maxwell 1991) 493–4.Google Scholar

28 See, eg, ss 5 and 6 of the Legal Practitioners Act. This requires an alien who applies to practise law in Botswana to prove inter alia, that there is a reciprocal law in his country of origin which will allow a Botswana citizen suitably qualified to practice law in that country.Google Scholar

29 See generally Nsereko, DDN, Constitutional Law in Botswana (Gaborone Pula Press 2002), at 538.Google Scholar

30 See Section IV.D. below and Nyamnjoh, FB, ‘Local Attitudes Towards Citizenship and Foreigners in Botswana: An Appraisal of Recent Press Stories’ (unpublished, Department of Sociology Seminar, 13 09 2001).Google Scholar

31 See Devenish, Ge, op cit, at 68.Google Scholar

32 In several US cases, especially Regents of the University of California v Bakke 438 US 265 (1978) the courts have held that even in the absence of specific provisions endorsing affirmative action, programmes implementing such action are compatible with the equal protection clause of the Fourteenth Amendment or statutory anti-discrimination provisions. Even in international law, Art 1(4) of the International Convention for the Elimination of All Forms of Racial Discrimination, 1966 also supports this conclusion.Google Scholar

33 See in particular, United States v Paradise 480 US 149 (1987).Google Scholar

34 See, eg, Art 4 of the Convention on the Elimination of All Forms of Discrimination Against Women, and also Andrew, Byrnes, ‘Equality and Discrimination’ in Raymond, Wacks (ed) Human Rights in Hong Kong (OxfordOxford University Press 1992) at 241.Google Scholar

35 See, Nsereko, op cit, at 267.Google Scholar

36 In the US case of Wygant v Jackson Board of Education (1986) 476 US 267,106 S Ct 1842, a collective agreement was struck down as contrary to the 14th Amendment because it gave preferential protection against layoffs to minority employees. The result was however, to largely to undermine the effects of positive action programmes incorporating under-represented workers: such workers were in the ‘last in’ and therefore inevitably the ‘first out’.Google Scholar

37 For example, in the Namibian case of Kauesa v Minister of Home Office (1994) 3 BCLR 1 (NmH), the High Court in construing the affirmative action provision in the Namibian Constitution observed that this provision does not authorize a violation of another person's dignity.Google Scholar

38 The eight are, the Bakgatla, Bakwena, Bamalete, Bamangwato, Bangwaketse, Barolong, Batawana, and Batlokwa, all of who make up almost 90 per cent of the population.Google Scholar

39 MISCA No 377/99 (unreported).Google Scholar

40 Ibid, at 58 of the transcript.

41 See Report of the Presidential Commission of Inquiry into Sections 77, 78, and 79 of the Constitution. Government Printer, Gaborone (2000), at 9.Google Scholar

42 Ibid, at 94.

43 Ibid, at, 95.

44 See, eg, the Concluding Observations of the Committee on the Elimination of Racial Discrimination Report on Botswana, hereinafter referred to as the CERD Report CERD/61/CO/2 of 23 Aug 2002.Google Scholar

45 This is s 15(9), which as an exception to the rule that no law should contain any provision that is discriminatory, excludes laws that were enacted before the coming into operation of the Constitution and which have continued in force since then, like the Tribal Territories Act, which was enacted in 1933.Google Scholar

46 For a full discussion of discrimination against women in Botswana, See Human Rights Watch/Africa Human Rights Watch Women's Project, Botswana: Second Class Citizens, vol 6 no 7 (1994).Google Scholar

47 See Athaliah Molokomme, , ‘Marriage—What Every Woman Wants or Civil Death?, in Women and Law in South Africa (HarareZimbabwe Publishing House 1987), at 183.Google Scholar

48 See Nsereko op cit, at 269.Google Scholar

49 The SADC Declaration on Gender and Development calls on Member States to take measures to ensure that women occupy at least 30 per cent of the total decision-making structures.Google Scholar

50 See Nsereko, op cit, who at p 270, gives the example of the Ugandan Constitution, which contains provisions on affirmative action and which are designed to ensure that there must be at least ‘one woman representative for every district’.Google Scholar

51 See generally, US Department of State, Country Reports on Human Rights Practices, 2001, Botswana; and Botswana Council of Churches, Who Was (T)here First. An Assessment of the Human Rights Situation of the Basarwa, Occasional Paper No 10 (1992).Google Scholar

52 The CERD Report of 2002 in its point 13 states: ‘The Committee expresses concern at the ongoing dispossession of Basarwa/San people from their land, and about reports stating that their resettlement outside the Central Kalahari Gamer Reserve does not respect their political, economic, social and cultural rights. The Committee draws the attention of the State Party to its General Recommendation XXIII on indigenous peoples, and recommends that no decisions directly relating to the rights and interests of members of indigenous peoples is to be taken without their informed consent. The Committee recommends that negotiations with the Basarwa/San and non-governmental organisations be resumed on this issue, and that a rights-based approach to development be adopted.’Google Scholar

53 See the Botswana Christian Council, Who Was (T)here First. An Assessment of the Human Rights Situation of the Basarwa, op cit, which at pp 22–3 reports of cases of Basarwa who came before Customary Courts, were remanded in custody because they could not understand Setswana.Google Scholar

54 See, Supplementary Report for the Committee on the Elimination of Racial Discrimination, submitted by Ditshwanelo—The Botswana Centre for Human Rights, Aug 2002, at 13.Google Scholar

55 During the 1990s, the Southern Kalahari San claimed extensive rights to a large portion of the Kalahari Gemsbok National Park in South Africa. After a process of protracted negotiations between the South African Government and the San Community, a settlement was arrived at, which recognized the San as a distinct group with rights to a large portion of their traditional land.Google Scholar

56 See Mmegil/The Reporter, 28 Mar 2003.Google Scholar

57 See, ‘Zimbabwe migrants “flood” neighbour’ <http://news.bbc.co.Uk/2/low/europe/2709829.stm>..>Google Scholar

58 See ‘Botswana: A crisis in the making’ <http://www.africaonline.com/site/Articles/l%2C3%2C51937.jsp>..>Google Scholar

59 See generally, Sichone, ‘The Making of Makwerekwere’ 14 SAPEM (2002).Google Scholar

60 The Universal Declaration of Human Rights 1948, whose principles are today considered to have become part of customary international law, and the International Covenant on Civil and Political Rights confer the great majority of the rights they enumerate to ‘everyone’. Both the CEDAW and the Convention on the Rights of the Child, to which Botswana is a party, make no distinction between citizens and non-citizens, in the rights they establish. The 1985 UN General Assembly Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which they Live, also sets some standards of practice by states with respect to dealing with aliens.Google Scholar

61 See Republic of Botswana, Status of the 2002 National Response to the UNGASS Declaration of Commitment on HIV/AIDS. Government of Botswana Country Report, United Nations General Assembly Special Session on HIV/AIDS, Mar 2003, Gaborone (2003), at 13.Google Scholar

62 See Ditsebe-Mhone, ‘People Living with HIV/AIDS and the Law: Identification of Major Concerns’, in Ditshwanelo, Conference on HIV/AIDS, the Law and Human Rights, 7 Dec 1999, Gaborone Botswana, Ditshwanelo, Gaborone (2002) 29–30.Google Scholar

63 See generally, UNAIDS, Protocol for the Identification of Discrimination Against People Living with HIV, UNAIDS, Geneva (2002), at 6.Google Scholar

64 On the issue of confidentiality, see generally, Fombad, CM, ‘The Crisis of Confidentiality in the Control of the HIV/AIDS Pandemic in Botswana’, 170 International Social Science Journal (2001) 643–56.CrossRefGoogle Scholar

65 For some examples of this, see Mhone, Ditsebe, op cit, and Justice Marumo, MB, ‘The Roleof the Judiciary and the Legal Fraternity in Response to the HIV/AIDS Epidemic in Botswana’, and Justice De Villiers, ‘Employment Law and HIV/AIDS in Botswana’, in BONELA, Report, Seminar on Justice, Reason and Hope in the HIV Epidemic in Botswana, 26 Oct 2002, BONELA, Gaborone (2002) 13–14 and 18–24 respectively.Google Scholar

66 Section 11 of the Public Health Act provides that it is a criminal offence for any person who, while suffering from any communicable disease, wilfully spreads the said disease. Although AIDS is not specifically mentioned, it is a communicable disease. Section 147 of the Penal Code also provides that any person who has been found guilty of having sexual intercourse with a person under the age of 16 years shall be required to undergo an HIV test. If such person tests positive, he shall be sentenced to a minimum period of imprisonment. See also, Justice De Villiers, ‘The Legal and Equitable Protection of Employees Living with HIV/AIDS’, in Ditshwanelo op cit, at 7.Google Scholar

67 See Schneider, D, ‘What Would Happen if Insurance Companies were not Allowed to Underwrite for AIDS?’, in Ditshwanelo, op cit 11–13.Google Scholar

68 See Ditsebe-Mhone op cit, at 30.Google Scholar

69 See Otlhogile, B, ‘Educating the Disabled in Botswana: Implications for Government’, in Okechukwu, Abosi, Clement, Didimalang et al. , (eds) Issues of Access and Opportunity to Basic Education for Disabled Children in Botswana. Proceedings of the Second National Seminar of Botswana Council for the Disabled (BCD), 25–27 11 1998, BCD, Gaborone (1999), at 12.Google Scholar

70 [1992] BLR 119, at 147.Google Scholar

71 See Abosi, O, Sison, W, and Nwaogu, P, ‘Report on Situational Analysis of Some A70 dults with Disabilities in Botswana’, in Kaye, SB (ed) Equal Opportunities for Training and Work: Meeting the Learning Needs of Adults with Disabilities. Proceedings of the Third National Seminar of Botswana Council for the Disabled (BCD), 22–24 11 1999, Gaborone, BCD, Gaborone (1999), at 20.Google Scholar

72 See M Overeem, ‘Work-related Training and Employment Opportunities for Disabled Adults’, ibid, at 38.

73 See, Tafa, AB, ‘Right to Sexual Orientation: The Line of the Botswana Government’, in Ditshwanelo, Conference on Human Rights and Democracy, 17–19 Nov 1998, Gaborone, Ditshwanelo, Gaborone (2000) 127–8.Google Scholar

74 See Boko, D, ‘The Case for the Decriminalization of Voluntary Homosexual Conduct in Botswana’, in Ditshwanelo, op cit, at 129.Google Scholar

75 Ibid, at 54.

76 See Olivier, M, ‘The Reality of being Gay in Botswana’, in Ditshwanelo, Conference on Human Rights and Democracy, at 135.Google Scholar

77 See Marwizi, W, ‘Mugabe to Root out Gays’, Zimbabwe Standard, 2 July 2003.Google Scholar

78 See <http://www.namibian.com.na/2001/march/news/01DC9DF150D.html>..>Google Scholar

79 See Botha, K, ‘Regional Perspective of the Right to Sexual Orientation’, in Ditshwanelo, Conference on Human Rights and Democracy, at 123.Google Scholar

80 See International Lesbian and Gay Association (ILGA) Africa 2000 Report, <http://www.afrol.com/archive/documents/ilga_2000htm>..>Google Scholar

81 See Devenish, Ge op cit 59–60.Google Scholar

82 Botswana has an ombudsman who could also perform such functions, but his mandate is presently limited to investigating acts of maladministration. See generally, Fombad, , ‘The Enhancement of Good Governance in Botswana: A Critical Assessment of the Ombudsman Act, 1995’, 27 Journal of Southern African Studies (2001) 57–77.CrossRefGoogle Scholar

83 The South African Human Rights Commission established under s 184 of the Constitution has the task of promoting and protecting the fundamental rights encapsulated in the bill of rights. The Commission may, on its own initiative or upon receipt of a complaint, investigate any alleged violation of a fundamental human right. Besides its supervisory role in relation to human rights, the Commission is authorized to provide financial assistance to complainants and other affected persons to enable them to seek redress for grievances in any appropriate forum.Google Scholar

84 See further, Meron, T (ed), Human Rights in International Law: Legal and Policy Issues (OxfordClarendon Press 1984).Google Scholar