Distr.

GENERAL

CERD/C/407/Add.1
8 May 2002


Original: ENGLISH
Fourteenth periodic reports of States parties due in 2001 : Botswana. 08/05/2002.
CERD/C/407/Add.1. (State Party Report)

Convention Abbreviation: CERD
[1 March 2002]

Introduction

1. At its fifty-third session, the Committee on the Elimination of Racial Discrimination noted that the sixth, seventh, eighth, ninth, tenth, eleventh and twelfth reports of Botswana which were due by 22 March 1985, and on that date in the years 1987, 1989, 1991, 1993, 1995 and 1997, had not been submitted. The Committee decided that the Republic of Botswana should compile and submit the reports for those years in one consolidated document.

2. The Republic of Botswana:

(a) Confirms that it has both signed and ratified the above Convention;

(b) Affirms its utmost belief in the Convention as setting out minimum standards with which all must, without exception, comply;

(c) Has and will always unflinchingly adhere to the provisions of the Convention;

(d) Assures the Committee that the failure of Botswana to submit the reports for the aforementioned periods does not detract from Botswana's sincere belief in the ideals of the Convention, nor from Botswana's confidence in the Committee and the essential importance of its work. The failure, which is deeply regretted, results from an unfortunate oversight;

(e) Conveys its most profuse and profound apologies for the omission;

(f) Undertakes that in future it will ensure the timely submission of all biannual reports; and

(g) Is prepared to appear before the Committee if necessary to place on record its foregoing commitment to the Convention and the work of the Committee.

3. In accordance with article 9.1 of the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention"), Botswana hereby submits to the Secretary-General of the United Nations, for consideration by the Committee on the Elimination of Racial Discrimination, a consolidated report on the legislative, judicial, administrative and other measures which it has adopted to give effect to the provisions of the Convention.
General

4. Botswana is a landlocked country situated in southern Africa. It shares a border with Namibia in the west and north, Zambia in the north, Zimbabwe in the north-east and South Africa in the east and south. Botswana lies between longitudes 20 and 30 degrees east of Greenwich and between latitudes approximately 18 and 27 degrees south of the Equator. More than half of the country lies within the tropical zone north of the Tropic of Capricorn. Botswana has a land area of approximately 581,730 square kilometres.

5. The country can be divided into three main climatic regions. These are: the northern, eastern and western climatic regions. The northern climatic region comprises the area north of latitude 20 degrees south. This area has a tropical climate and receives much higher rainfall than other regions, about 500 to 700 mm per annum. Most of the rainfall results from migratory tropical systems such as the Inter-Tropical Convergence Zone (ITCZ). Other systems include easterly waves emanating from the south-west Indian Ocean and the Zaire Airmass Boundary (ZAB) which mainly affects the north-western parts. The eastern region is roughly the area south of latitude 20 degrees south and to the east of longitude 25 degrees east. It has a semi- and sub-tropical climate with rainfall varying from about 400 mm to about 500 mm, with pockets of lower long-term average rainfall of less than 350 mm. It is found in the low-lying extreme eastern part, between the Shashe and Limpopo rivers, which separates the highlands of Zimbabwe from those of South Africa. The western region covers the Kgalagadi, which is the driest part of the country with rainfall decreasing from the north to the south and with an annual average of less than 250 mm in the extreme south-west.

6. The population of Botswana is comparatively and generally homogeneous. However, there is significant diversity of language and culture.

7. Setswana is the national language and is spoken by over 96 per cent of the population. Setswana is used in schools and national mass media. English is the official and business language of the country and about 40 per cent of the population can read and speak it. There are several other languages spoken in the country, some of which are also written.

8. According to current estimates, the population of Botswana is about 1.7 million. The majority of the population live in rural areas along the eastern corridor in some of the largest traditional towns in southern Africa. The rest of the country, especially the western part, is sparsely populated. During the past three decades, Botswana has experienced a high degree of urbanization and has the highest annual rate of urban growth in Africa. The urban population accounts for about 25 per cent of the total population.
The Constitution, Penal Code, Societies Act and other laws Copies are available for consultation in the files of the secretariat.

9. The Constitution of Botswana provides for, inter alia:

10. The legislature, which comprises the National Assembly and the President, is the supreme legislative authority of the Republic, and is subject only to the Constitution. The National Assembly refers all legislative measures which affect culture, custom and tradition to a House of Chiefs (House of Traditional Leaders) for their comment prior to the passage of such a measure.
11. The executive branch consists of a Cabinet headed by a President. Under the terms of section 47 of the Botswana Constitution, all the executive authority of the Republic is vested, subject only to the Constitution, in the President, and the role of the Cabinet is to advise the latter. Ministers of Government do, however, exercise executive authority delegated to them by the President and by Acts of Parliament.

12. The judiciary, which is independent of both the executive and the legislature, interprets the law and administers justice. To be sure that litigants have the opportunity to ventilate their causes sufficiently, there is a multiple-tier court system comprising customary and civil courts. The customary courts are, progressively, the arbitration, lower and higher courts and the Customary Court of Appeal. Appeals lie through the hierarchy and, if a party is still not satisfied after the Customary Court of Appeal, it can thereafter appeal to the High Court and then the Court of Appeal. On the civil side are magistrates courts, the High Court and the Court of Appeal, the latter being the highest court in the land.

13. Chapter II of the Constitution of the Republic of Botswana incorporates a Bill of Rights, section 3 of which secures to the individual fundamental rights and freedoms identical to those enunciated in United Nations instruments. The preamble to section 3, which has been declared by the Court of Appeal (in Dow v. The Attorney-General Available for consultation in the files of the secretariat.) to have substantive effect, guarantees equality and section 3 (a) the equal protection of the law to every person "whatever his race, place of origin, political opinion, colour, creed or sex". Section 15 proscribes discrimination on the grounds of "race, tribe, place of origin, political opinions, colour or creed".

14. For completeness, perhaps section 3 of the Constitution should be quoted in extenso. It provides:

15. The Constitution makes provision, in section 12, for freedom of expression, which includes freedom of the press. These freedoms have, in practice, been fully realized. The development of the private press in Botswana started in the early 1980s when some weekly newspapers came on stream. The first three were the Botswana Guardian, the Examiner and the Reporter (Mmegi). The latter and the Botswana Guardian are still in circulation as weeklies, while the Examiner has closed down. Later came the Gazette published on Wednesdays followed by the Midweek Sun and Mmegi Monitor which are sister mid-weeklies to the Botswana Guardian and Mmegi respectively. Other newly established papers are the Voice and the Sunday Tribune. Numerous privately owned magazines have been in print and circulation for many years, and private radio stations are on the increase. Botswana also receives scores of foreign and international radio and television broadcasts, as well as newspapers. The Internet has completed Botswana's exposure to the whole world.

16. The Constitution also provides the legal framework within which an aggrieved individual may seek relief where the State infringes his rights. In this respect, it is apposite to refer to section 18 (1) of the Constitution, which provides that:

17. In addition to the remedies afforded by section 18 of the Constitution, the Penal Code (cap. 08:01), and particularly sections 92 and 94, punish acts involving racial discrimination. These provisions, insofar as they are pertinent, read:

18. The occasion for invoking the provisions of the Convention need never arise as the Constitution of Botswana affords, as must be clear from the above, adequate protection for the individual. Because the Constitution is the supreme law of Botswana, it is inviolate, and any other law which offends against it will be declared unconstitutional and struck down as invalid and of no force and effect.

19. In the above ways, therefore, the Botswana Constitution, which was enacted on 30 September 1966, and laws passed before then anticipated the Convention (which entered into force on 4 January 1969). The provisions of the Convention have, in consequence, been given full effect in Botswana.

20. The Societies Act (cap. 26:04) and the Companies Act (cap. 42:01) and legislation governing other legal entities and regulating the registration and operation, inter alia, of such entities, prohibit discrimination of all forms by and within the entities.


Legislative, judicial, administrative and other measures effected
in compliance with Part I (articles 2 to 7) of the Convention

Article 2

21. Botswana fully affirms the provisions of this article, and has and will always adhere to its requirements.

22. Botswana reviews, on a continuing basis, all its policies to ensure that they comply fully with the article.

23. Botswana is without laws which discriminate. Sections 3 and 15 of the Botswana Constitution, and 92 and 94 of the Penal Code outlaw racial discrimination, and section 18 of the Constitution and the foregoing sections of the Penal Code penalize it. All these provisions are quoted above. Provisions of the Societies Act, of the Companies Act and of other laws fulfil the requirements of article 2.1 (d).

24. Botswana's policies and practice achieve the objects of article 2.1 (e) and 2.2.

Article 3

25. Far from ever having laws which permitted racial segregation and apartheid, Botswana has, since she attained self-rule pursued a policy of non-racialism aimed, among other objects, at showing racist regimes the world over that people of different races could live peacefully together.

26. In the conduct of its diplomatic, economic and other relations, Botswana either avoided altogether or, where unavoidable, limited to the minimum, diplomatic, economic and other contacts with regimes which engaged in racial segregation or apartheid. Prime examples of this were Botswana's unrelenting refusal to have diplomatic relations with the then racist Rhodesia (now Zimbabwe), South Africa and the then South West Africa (Namibia). This, however, changed once these countries established multiracial democracy within their territories, for Botswana then established fully fledged diplomatic relations with all of them.

27. In the area of trade and commerce, Botswana was inextricably linked to apartheid South Africa. Botswana's very survival compelled upon a relationship it dreaded. The South African sea, air, road and rail systems are the most developed and reliable in the region, and all trade routes in southern Africa lead one way or the other to the South African system. The network is therefore of considerable importance to Botswana. Tens of thousands of Batswana worked in South Africa when Botswana's own employment capacity was severely limited. Historical ties between the black peoples of South Africa and Botswana prevented a complete break, and economic principles of sanity forced on Botswana an unavoidable trade with South Africa.

Article 4

28. Botswana always condemned racist propaganda and organizations. As a frontline State and a member of the Southern African Development Community and other regional and international bodies, Botswana participated in activities designed to eradicate all racist acts, and promoted the eradication of the scourge. The country subscribed to and ratified the Universal Declaration of Human Rights and this Convention.

29. The following laws, a few among many, meet the noble injunctions of article 4 (a), (b) and (c):

30. There are other pieces of legislation which establish or permit the establishment of all manner of entities. This would be done by way of some legislative or subsidiary legislative instrument passed by Parliament or other authorized body. The exercise of such authority would, of necessity, be subject to the Constitution, and therefore the prohibitions of sections 3 and 15 thereof. Should any such measure offend against these provisions, it would be unconstitutional for the reason that it would be ultra vires the authority given by the Constitution or other law, and certainly because it contravenes the sections aforementioned. It may be that each Act should prohibit the registration and operation of entities whose purposes involve racial discrimination.

31. The State, local authorities or other public authorities cannot legally practise racial discrimination by reason of the constitutional prohibitions aforementioned. It may be that each legislative measure should state so in express terms. They do not because it is understood by all that the predicate of the Constitution is unmistakable.

32. Accordingly, Botswana reports that the terms of article 4 are accomplished, our laws and measures being fully compliant therewith.

Article 5

33. All matters stated in respect of article 4 apply no less in the context of this article and are herein incorporated.

34. The sections of the Constitution hereinbefore recorded comply with the requirements of this article. In particular:

35. The following provisions of the laws of Botswana secure the enjoyment and protection of civil rights required by the corresponding provisions of this article:
36. The laws of Botswana extend and protect the economic, social and cultural rights. In particular, the following laws secure the rights stated below, as required by article 5 of the Convention:

Article 6

37. Botswana has a dual legal system made up of Roman-Dutch law principles and the customary law system. Fundamental and indispensable to both systems is the ubi jus, ibi remedium principle. In the context of human rights and civil liberties, sections 3 to 15 of the Constitution guarantee these rights and liberties while section 18 of the Constitution and the various other laws referred to above afford protection and secure remedies to those who feel aggrieved by a violation of these rights and freedoms. As complete redress as is possible is available through the court systems already dealt with above.

38. To the credit of Botswana is, as is illustrated by the following table, the infrequency of complaints of racial discrimination. The table shows statistics of the number of cases tried involving the offence of expression of racial hatred in contravention of section 92 of the Penal Code during the period 1995-2000:


Crime
1995
1996
1997
1998
1999
2000
Expression of racial hatred
1
2
3
5
7
9

Article 7

39. The education system in Botswana is designed such that every school is open to all racial and ethnic groups. The interaction of these groups in schools and the teaching methods employed ensure that future relations between these groups are without prejudices which may lead to racial discrimination.

40. Botswana society is intolerant of racial discrimination. Having had to contend with racist regimes in the then South Africa, Rhodesia and South West Africa for a long time, and having interacted with people raised in those societies, Botswana was always determined to give due regard, in the formulation of education and land planning policy and other matters, to ensuring that race relations are normal. For example, in integrating foreign investors, the minorities and remote area dwellers into the mainstream of society, emphasis is placed on shared public amenities such as schools, medical facilities and utilities, as well as on mixed neighbourhoods so designed by settlement planners. Everyone, regardless of their ethnicity or race, is free to settle anywhere in the country within the parameter of the law and policy. This way, friendship, tolerance and understanding are developed among ethnic groups. This emphasis has paid off; hence the example afforded by the above statistics. The law was always a measure of last resort and it served purely as that.

41. Botswana, being a member of the United Nations and party to the Universal Declaration of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, has adopted adequate measures to ensure the propagation of the purposes and principles of the Charter of the United Nations and these noble instruments.

42. The constitutions of registered cultural groups and their organization of national cultural programmes transcend, in every respect, all forms of prejudice based on racial or ethnic factors. In this context, the following measures are, amongst others, in place to ensure the combat of any elements of discrimination:

43. The media also play an important vigilance role. Radio and newspapers (both government-run and independent) broadcast and carry articles espousing the undesirability of racism and racial practices. They follow up cases which sometimes lead to police investigation whenever reports of racial practices have been made.
44. Non-governmental organizations, which for the most part operate in the area of human rights, are sensitive to human rights breaches and disseminate information on equality of all before the law.

45. Whenever opportune, the Government publishes policy documents and statements addressing issues relating to racial or tribal discrimination. The latest one, which is currently under discussion, relates to the equality of tribes in the Constitution of Botswana.

46 Occasions such as Independence Day celebrations and the State of the Nation address are sometimes used to remind the nation of its commitment to and respect for the human rights and freedoms which are enshrined in the Constitution.

47 Botswana is committed to a human rights culture. Hence, she is signatory to a number of international instruments, including the African Charter on Human and Peoples' Rights.

48 In the continuous effort to promote the use of as many local languages as possible, investigations are ongoing to determine which language may be introduced in the school curriculum as an optional subject. Currently Setswana and English are offered as subjects.

Conclusion

49. Botswana has, in its determined effort to comply with article 9 of the Convention, achieved a great deal. Even so, Botswana recognizes that the monster of racism and racial discrimination, because it results from attitudes deeply ingrained and has been a way of life for many over centuries, is tenacious and cunning and will progressively transform itself into subtler forms. It becomes necessary, therefore, that the world should not allow itself to be lulled into complacency by such a transformation. We must keep vigil until the scourge has been completely and finally uprooted.

50. Botswana continues to strive to make improvements in its attempt to comply with the Convention. Certain areas require greater and more careful scrutiny, and efforts to devise desirable measures in those areas will continue to be made.



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* This document contains the sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth periodic reports of Botswana, due on 22 March 1985, 1987, 1989, 1991, 1993, 1995, 1997, 1999 and 2001 respectively, submitted in one document. For the third, fourth and fifth periodic reports of Botswana submitted in one document and the summary record of the meetings at which the Committee considered that report, see documents CERD/C/105/Add.1 and CERD/C/SR.654.


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