Botswana

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Legislation

Anti-Human Trafficking Act (2014)

Trafficking in persons

This Act prohibits human trafficking and establishes protective measures for the victims of human trafficking. It establishes a Human Trafficking Prohibition Committee to oversee the implementation of the Act and calls for the establishment of centers for victims and the creation of a victims’ fund.



Employment (Amendment) Act of 2010 (2010)

Employment discrimination, Gender discrimination

Sections 113-118 of the Employment (Amendment) Act pertain to the rights of women to maternity leave from their employers. The amendment compels employers to pay employees on maternity leave not less than 50% of their salary, establishes the right to maternity allowance unaffected by notice of termination of contract of employment, and prohibits serving notice of termination of contract of employment during maternity leave. It establishes in Section 117 that female employees are entitled to only one maternity allowance per woman. Section 118 mandates that an employer permit a female employee for a half hour twice a day to “suckle her child or otherwise feed him herself” for “six months immediately after her return to work.”



Customary Law Act (1969)

Gender discrimination, Harmful traditional practices

The Customary Law Act aims to reconcile potential conflicts arising between customary Botswana law and Botswana’s common law. The Act pursues this aim by specifying that customary law is to be applied in customary courts only when it “is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice.” The Act thus makes presumptively invalid customary law that does not comply with common law legislation, leaves such law inapplicable in customary courts, and upholds the supremacy of the common law in Botswana



Section 45 of the Interpretation (Amendment) Act, 2013 (2013)

Forced and early marriage

Section 45 of the Interpretation (Amendment) Act changes the legal age of majority in Botswana to 18 and is gender neutral in language. This change allows persons 18 or older to marry without parental consent.



The Married Persons Property Act of 2014 (2014)

Property and inheritance rights

The Married Persons Property Act of 2014 permits couples to change their marital property regime (i.e., in or out of community property). The Act applies ex post facto, and any couple married under the old act need only approach the High Court to change their property regime in or out of community of property. Change of property regime can be done only once during a marriage.



The Abolition of Marital Power Act 34 of 2004 (2004)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The full title of the Abolition of Marital Power Act 34 of 2004 is “An Act to provide for the abolition of marital power, to amend the matrimonial property law of marriages, to provide for the domicile of married women, to provide for the domicile and guardianship of minor children and to provide for matters incidental thereto.” The Act provides for equal powers in property ownership for spouses. It also gives women equal powers to assume guardianship of minor children and in determining the domicile of their children. Furthermore, it removes the common law position of the husband as head of the family. Its effect is limited to common law marriage; it has no effect on customary or religious marriages (couples may marry under customary or common law).



Marriage (Amendment) Act of 2001 (2001)

Forced and early marriage, International law

The Marriage Act was amended in 2001 to make it illegal for any person under the age of 18 to marry. In accordance with the Convention on the Rights of the Child (CRC), the amendment stipulates that no minor below the age of 21 years may marry without the consent of parents or a legal guardian. The amendment provided for the registration of Customary, Muslim, Hindu, and other religious marriages.



Public Service (Amendment) Act 14 of 2000 (2000)

Employment discrimination, Sexual harassment

In 2000, the Public Service Act was amended to recognize sexual harassment. Sexual harassment is defined as “any unwanted, unsolicited or repeated sexual advance, sexually derogatory statement or sexually discriminatory remark made by an employee to another,” and it covers all offensive or objectionable remarks made in or outside the workplace that cause the recipient discomfort or humiliation or that “the recipient believes interferes with the performance of his or her job security or prospects” or that “create[s] a threatening or intimidating work environment.” The Act delineates the penalties for sexual harassment.



Penal Code (Amendment) Act of 1998 (1998)

Gender discrimination, Sexual violence and rape

In 1998, the Penal Code Act was amended to make the offence of rape gender-neutral and to move away from a phallus-specific definition. The Amendment introduced a minimum sentence of 10 years to a maximum term of life imprisonment and made bail unavailable to persons accused of the offense. The amendment also made mandatory HIV testing for persons convicted of rape, and in the case wherein rape was accompanied by violence or the rapist was unaware of his or her HIV+ status, a minimum sentence of 15 years with corporal punishment was introduced. For cases wherein the convicted person was aware of his or her HIV status, the minimum sentence was set at 20 years imprisonment with corporal punishment. Excerpts of amended language available here.



Domestic Violence Act (2008)

Domestic and intimate partner violence

The Domestic Violence Act (No. 10 of 2008) seeks to provide survivors of domestic violence with protection. The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant." The Act empowers Courts including Customary Courts to pass an order (Section 7 of the Act prescribes orders available to applicants such as restraining orders and interim orders) that seeks to immediately protect applicants (victims); Section 9 (2) (b) (i) provides that the order shall direct a member of the Botswana Police to prohibit the respondent (the offender) from committing an act of domestic violence. The Act also outlines the jurisdiction of the courts, describes how an applicant can file an application for an order by the court, details how documents are served to respondents, and explains the nature of proceedings in a domestic violence case.



Constitution of Botswana (2006)

Employment discrimination, Gender discrimination, Sexual violence and rape, Trafficking in persons

Section 6 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits sexual slavery or trafficking. It includes the following provisions: 1) No person shall be held in slavery or servitude. (2) No person shall be required to perform forced labour. Section 7 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits sexual violence that constitutes torture. It includes the following provisions: (1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this Constitution. Section 15 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits the making of discriminatory laws



Domestic Case Law

Attorney General of Botswana v. Rammoge Court of Appeal (2016)

LGBTIQ

The Court of Appeal held here that the Department of Civil and National Registration’s refusal to register Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was an unjustifiable limitation of its members’ rights. The Court of Appeal held that the right to form associations to advocate for legal change is a fundamental component of the right to freedom of assembly and association, and it dismissed the Department of Civil and National Registration’s argument that LEGABIBO’s objectives were contrary to public morality and would encourage the commission of criminal offenses. In its holding, the Court of Appeal protected the right of LEGABIBO and other LGBT advocacy groups to promote the rights of LGBT individuals and to lobby for legal reform. 



G.M.J. v Attorney General Court of Appeal of Botswana (2018)

Abortion and reproductive health rights

Here, in a unanimous judgment, the Court of Appeal reversed a decision by the High Court to dismiss a medical negligence claim raised by a woman who underwent a surgical procedure for the removal of her womb and experienced the leaking of urine after the procedure. Appellant had sought damages from medical negligence and lack of proper post-operative care. The Court’s holding clarifies the law on prescription and medical negligence, which are a prominent method through which women try to access the courts when their reproductive health rights are violated.



Motshidiemang v. Attorney General Botswana High Court of Botswana (2019)

Gender discrimination, LGBTIQ

Here, the High Court of Botswana held in a unanimous opinion that Section 164(a)/(c), 165, and 167 of the Botswanan Penal Code were unconstitutional. These sections criminalized same-sex relations. The Court held that 164(a)/(c), 165, and 167 violated Sections 3 (liberty, privacy, and dignity), 9 (privacy), and 15 (prohibiting discrimination) of the Botswanan Constitution. The Court modified Section 167, which criminalized the offence of gross indecency, to remove reference to private acts. The case overturned Kanane v State.



Mmusi v. Ramantele High Court of Botswana at Gaborone (2012)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them.  The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs.  The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child.  The rest of the property was to be divided among the children, regardless of gender.  The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew.  The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under s 3(a) of the Constitution of Botswana.  On 12 October 2012, the High Court subsequently awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property.  On 3 September 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”  This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana.



Attorney General v. Unity Dow Court of Appeal of Botswana at Lobatse (1992)

Gender discrimination, International law

The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion.  (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)



Makuto v. State Court of Appeal for Botswana at Lobatse (2000)

Sexual violence and rape

The appellant appealed his conviction for rape, arguing that the Penal Code sections dealing with rape are discriminatory because they provide increased penalties for a person convicted of rape if they are found to be HIV-positive.  The Court held that the relevant provisions of the Penal Code apply when the convicted person was HIV-positive at the time he committed the rape and that it is therefore a reasonable provision in order to combat the spread of HIV/AIDS.   



Masusu v. Masusu High Court of Botswana at Lobatse (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   



Mogodu v. State High Court of Botswana (2005)

Sexual violence and rape

The appellant appealed his conviction for rape in the subordinate court of the first class for the North West Magisterial District on the grounds that the evidence did not show lack of consent, and that the sexual intercourse between the appellant and the complainant was consensual.  The Court upheld the conviction on the grounds that the evidence showed that the appellant used threats and coercion to force the complainant to have intercourse with two other persons, which rape.  Therefore, the Court upheld the conviction. The Court also discussed proper procedures for handling criminal trials for defendants who are minors at the time of the alleged crime but over the age of majority at the time of trial, as the appellant's two co-accused were in this case.



State. v. Matlho Court of Appeal of Botswana (2008)

Gender-based violence in general, Sexual violence and rape

The appellant challenged the sentence for rape under the sections of the Penal Code that set forth mandatory minimum sentences for rape charges depending on circumstances such as the perpetrator's use of violence or the perpetrator's status as being HIV positive. Section 142(5) of the Penal Code prohibits a sentence for rape from running concurrently with any other offense; the sentences must be served consecutively.  The appellant was convicted on two counts of rape and sentenced to the mandatory minimum sentence of 10 years for each count, resulting in a total of 20 years imprisonment, which he claimed was a violation of the constitutional prohibition on "torture or inhuman or degrading punishment."  The Court upheld the conviction, noting that although it was undeniably severe, it was not disproportionate to the offense, especially in light of the increase in the incidence of rape in Botswana and the heinous nature of rape itself.



State. v. Ketlwaeletswe Court of Appeal of Botswana at Lobatse (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty in magistrates court of raping a 10-year-old girl and sentenced to 10 years in prison.  He appeals on the question of whether sexual intercourse with a girl of that age should be considered as rape or "defilement" because rape requires a lack of consent while the Penal Code defines defilement as carnal knowledge of anyone under the age of 16. The High Court held that, in accordance with the principle followed by the common law in South Africa incorporated by Botswana, a girl under the age of 12 is deemed incapable of consenting to intercourse and therefore intercourse with any person under the age of 12 is deemed rape. 



Sekoto v. Director of Public Prosecutions Court of Appeal of Botswana at Lobatse (2007)

Domestic and intimate partner violence

The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment.  The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent.