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Harmonisation of national and international Laws to protect

VIEWS: 3 PAGES: 50

  • pg 1
									Harmonisation of laws relating to
             children

            Botswana




     Prepared by Monica Tabengwa


                        The African Child Policy Forum
                  PO Box 1179, Addis Ababa, Ethiopia
                  Tel: +251 (0)116 62 81 92/ 96/ 97
                          Fax: +251 (0)116 62 82 00

                           www.africanchildforum.org
                               www.africanchild.info
Table of contents

Table of contents ...................................................................................................................... 2
Acronyms................................................................................................................................... 3
Executive summary ................................................................................................................... 4
Introduction ............................................................................................................................... 6
   Children’s rights and customary law............................................................................. 8
   Customary law and cultural practices contrary to child rights .................................... 8
   a. Children born out of wedlock and nationality .......................................................... 9
   b. Custody and access to both parents ...................................................................... 10
   c. The right to speak and to be heard......................................................................... 10
   d. Inheritance ............................................................................................................... 10
   e. Child abuse and violence ........................................................................................ 11
   f. Corporal punishment ................................................................................................ 11
   The international context............................................................................................. 11
   a. The CRC .................................................................................................................... 13
   b. The ACRWC ............................................................................................................... 14
Emerging issues ...................................................................................................................... 14
   a. Best interests of the child ....................................................................................... 19
   c. Right to life, survival and development .................................................................. 21
   d. Basic health and welfare ......................................................................................... 23
   e. Education and social welfare .................................................................................. 24
   f. Civil rights and freedoms.......................................................................................... 30
   g. Protection of children in vulnerable situations ...................................................... 32
   Law reform and children’s rights ................................................................................ 34
Reporting status to the UN Committee on the Rights of the Child ......................................... 38
Conclusions and recommendations ....................................................................................... 39
Bibliography ............................................................................................................................ 47
Annex: 1 .................................................................................................................................. 50
   About the author .......................................................................................................... 50




                                                                                                                                            2
Acronyms

ACRWC      African Charter on the Rights and Welfare of the Child
AIDS       Acquired Immune Deficiency Syndrome
ART        Anti-Retroviral Treatment
BOCONGO    Botswana Council of NGOs
CRC        Convention on the Rights of the Child
DSS        Department of Social Services
ECCD       Early Childhood Care and Development
HIV        Human Immunodeficiency Virus
ICESCR     International Covenant on Economic, Social and Cultural rights
MIS        Multiple Indicator Survey
NAC        National AIDS Council
NACA       National Aids Coordinating Agency
NCE        National Council on Education
NCPD       National Council on Population and Development
NCWC       National Child Welfare Committee
NDP        National Development Plans
NGO        Non-governmental organisation
NPA        National Programme of Action
NPE        National Policy on Education
OVC        Orphans and vulnerable children
PLWHA      People living with HIV/ AIDS
PMTCT      Prevention of mother-to-child transmission
RNPE       Revised National Policy on Education
UN         United Nations
UNDP       United Nations Development Programme
UNICEF     United Nations Children’s Fund
UNSSC      UN Special Session on Children
WSC        World Summit for Children




                                                                            3
Executive summary

This report examines children’s human rights development in Botswana and the extent to
which such development has complied with international human rights standards, in
particular the Convention on the Rights of the Child (CRC) and the African Charter on the
Rights and Welfare of the Child (ACRWC). Drawing upon both original research and all other
existing information the report considers children’s rights development over the evolving life
stages from infancy to adulthood. The report also presents key conclusions and
recommendations regarding further compliance with the two treaties on child rights.

The main child rights regulation laws are found in the Children’s Act of 1981 which exist still
today with very few amendments despite the many changes and developments which have
occurred globally and locally in the arena of human rights. For instance since 1981
Botswana has ratified both the CRC and the ACRWC respectively, and most importantly
Botswana has adopted a far reaching long term development strategy – the Vision 20161.
The vision’s overarching goal is ‘prosperity for all’, and in addition to the national principles of
democracy, development, self reliance and unity, the Vision 2016 defined future challenges
and set out values, principles and goals for the next 20 years. Many trends in lifestyles of the
Botswana people have emerged and numerous challenges have come to threaten the
realisation of the Vision 2016.

According to the 2001 Population and Housing Census there are about 1.7 people in
Botswana and of that about 44% are children below the age of 18 years with the majority of
these children living in rural areas.2 Although Botswana is the success story of development
in Africa having risen from being one of the world’s least developed nations to being a middle
income developing country today,3 it was only in the last two decades that we have seen a
more sustained effort in children’s development. As a result of the sustained economic
development many more children have been provided with basic social services, the growth
in employment and household income making it possible for families to provide for their
children.




1 1997 `Long-Term Vision for Botswana: towards Prosperity for All’, Presidential Task Group
2 2001, Analysis of Child Focused Indicators, Botswana Population and Housing Census
3 1997, World Bank




                                                                                                  4
However, these efforts have only provided the very basic of necessities for children, many
aspects of children’s wellness is being affected by limitations in the laws and quality of the
social services.

There have been many challenges and many have been overcome, however HIV/AIDS has
proven to be catastrophic and overwhelming. The first HIV case was diagnosed in 1985 and
since then the prevalence has increased dramatically, with pregnant women and young
people being the most affected. Efforts have been led by Botswana’s President Festus
Mogae to control the further spread of the disease and its devastation. Programs such as the
Prevention of Mother to Child Transmission (PMTCT), the roll out of free and universal Anti-
Retroviral Treatment (ART), and the Orphans and Vulnerable Children (OVC), are beginning to
show results with the prevalence rate beginning to stabilise. More and more people are
undergoing voluntary testing at the many centres4 established around the country and more
and more people are enrolling for treatment with the government hospitals. The youth,
Botswana’s ‘ray of hope’, are not being left behind in these efforts. Youth are a high risk
group due to their highly mobile and high risk behaviour such as engaging with multiple
sexual partners, non adherence to safer sex methods of prevention. In order to achieve the
goal of an ‘AIDS free generation by 2016’ the youth of today must be targeted by prevention
methods. The provision of PMTCT at clinics is reducing the infant mortality rate and the
provision of ART has reduced the adult death rate and extending life expectancy. The
increased number of death caused an increase in the number of orphans which is estimated
to be over 67 000 with over 50% of these having been registered throughout the country.
The infusion of HIV/AIDS issues into the school curricula and the training of peer educators
to provide psycho-social support to school going youth are some of the efforts undertaken to
ensure that the children are knowledgeable about HIV/ AIDS and prevention methods.

In addition to the Vision 2016 the Botswana Constitution, enshrined within the Bill of Human
Rights, embraces the principles of equality before the law and non- discrimination. Although
the social, economic and cultural rights are yet to be recognized constitutionally Botswana’s
commitment to the general welfare of children has been commendable. Much has been
done to ensure the maximum enjoyment of the universal goals of human rights, including
survival, development, participation, protection, peace and security.




4 Such   as Tebelopele Voluntary Testing Centres


                                                                                                 5
It is an accepted factor that law reform is needed urgently to be sure that all laws in
Botswana affecting the welfare of children must facilitate the maximum contribution to the
enjoyment of children’s human rights. Botswana has undertaken some law reform in order to
accommodate the growing needs of its children and to ensure that these laws comply with
international human rights standards on non-discrimination and equality of all persons.
However this kind of law reform has been too piecemeal and fragmented, with no focus on
child rights goals and human rights principles, thus has failed to holistically address all the
problematic areas and the gaps within the legal framework. Many new issues have also
emerged, mainly due to HIV/AIDS and globalization, these have brought about some very
important changes in the lives of Botswana people, which also need to be addressed and
new laws enacted to regulate their effect on children’s welfare. The Children’s Act of 1981
has been under review for the last 10 years, and there is an obvious need to complete it as
soon as practically possible, and the new act should address child rights issues
comprehensively.

The knowledge and understanding of child rights in Botswana is very limited, with majority of
implementers not being conversant with child rights instruments. The challenge is that the
concept of child rights in Botswana is sometimes misunderstood, with many holding the view
that child rights to promote children’s wellbeing is unacceptable behaviour. Although the
principle of botho5 and the interdependence and respect that customary law promotes are
well-appreciated by people, customary law also contains and tolerates practices that are
antithetical to child rights or child well-being. A dialogue should be opened with the people
including traditional leaders and parents to improve their understanding of the concepts of
child rights and human rights, school education must emphasis that that rights although
universal are not absolute and must be exercised with responsibility.


Introduction

Botswana has from colonial days operated a dual legal system which comprises of customary
law; which is largely unwritten, varying from tribe to tribe, but essentially those practices and
rules of conduct that govern human relationships; and common law which generally consists
of the Roman Dutch law which came through the influence of the Cape settlers and English
law inherited through the British colonization as well as the various statute laws that have


5 Setswana   word for respect, good manners


                                                                                                  6
been enacted by the Botswana parliament through the years. According to studies6
Botswana custom is patriarchal in nature, perpetuating unequal relations based on the
presumption that women are inferior to men, and therefore can not enter into binding
contracts in their own right without the assistance of a man, be it a husband in the case of a
married woman or an uncle, father or brother for the unmarried. With regards to children the
traditional view held by many of the Botswana people is that children are not seen as
subjects of rights in their own right but their rights are only recognised only in relation to their
parents.

Botswana became an independent state on 30th September 1966. At the time it adopted a
Constitution that embodied a list of fundamental human rights and freedoms to be
guaranteed and protected for all persons within its borders. These rights and freedoms were
to be enjoyed by all without discrimination on any basis whatsoever. Section 157 of the
Constitution expressly prohibits all forms of discrimination by any reason whatsoever
including, inter alias, race, colour, creed, tribe, sex, etc, however due to the patriarchal lines
that the society of Botswana is founded on the same section creates a proviso that creates
exemptions within which discrimination may be allowed and these are in cases relating to
‘adoption, divorce, burial, devolution of property on death or other matters of personal law’.

Further, notwithstanding the fact that the constitution guarantees most civil and political
rights it is still silent on social, economical and cultural rights. Likewise, it fails to mention
children’ rights as a special category of rights to be protected. The result is that children are
generally not perceived to be recipients of rights in their own right.

Despite these obvious anomalies Botswana has through the years since independence
strived to offer the best development socially and otherwise, for its children. Through the
various National Development Plans (NDP) Botswana has shown its commitment in child’s
wellness by investing greatly in basic social services such as education and health. About
30% of the national budget is devoted to provision of education and health.8 Having said
that it is imperative to evaluate the extent to which the national aspirations with regards to
the development and wellness of children have been achieved, while at the same time it is
vital to formulate new aspirations and dreams for future generations bearing in mind that



6 1938,`A handbook on Tswana Law and Custom’, I. Schapera, Frank Cass & co, London
7 Lawsof Botswana
8 1981, Report of the Review of Botswana’s Children’s Act, p.20.


                                                                                                     7
due to the globalised nature of the world social norms and values, these are changing at an
alarming rate.


Country status

Children’s rights and customary law

As previously stated, the common law status of children in Botswana is based on the current
statutes relating to children, being primarily the Children’s Act Cap, Adoption Act, Affiliations
Proceedings Act, Customary Act Cap, etc, as well as the Convention on the Rights of Children
to which Botswana is a signatory. The position in the customary law is significantly different,
in that there are no specific rules defining a child. The customary law status of children
depend largely on the laws and customs of the specific tribes, children are not seen as
subjects of rights on their own as individual human beings, their rights are recognised only as
far as there are linked to the status of their parents. Consequently this position contributes
to the perception that parents see children as something they own and totally within their
control. Traditionally bojale and bogwera (initiation rites of passage for girls and boys
respectively), marked the status of adulthood of the participants. With the decline of these
practices it has become unclear as to how adulthood is acquired under customary law.

The Customary Law Act9 which represent an attempt by parliament to regulate customary
law, does however make some attempt to incorporate the concept of the best interest of the
child under Section 6, where it requires that ‘in any case relating to the custody of children,
the welfare of children shall be the paramount consideration irrespective of which law is
applied’. Although the section only refers to ‘welfare’ and not best interest the two terms
have been interpreted by the courts to mean the same thing. What is more important
however, is the fact that this act provides that this principle be applied in the interpretation
of all laws and although no precise definition has been provided the courts do consistently
apply it.10

Customary law and cultural practices contrary to child rights

Law and culture exert significant influence over people’s lives and also on the social
dynamics between men and women including children. A number of customary law

9 1969,    Laws of Botswana: Act No.51, Cap, 16:01
10 Thipe   v. Thipe Misca, F45/95, Unreported.


                                                                                                    8
dispositions are not respectful of the rights of the child and are harmful of children’s well-
being. The following customary or traditional practises infringe on child rights as recognized
by the CRC;

a. Children born out of wedlock and nationality
Under customary law a child born in lawful marriage adopts the totem or nationality (sereto)
of the father and can inherit whatever status or title that may be attached to the father’s
name, under no circumstances could the same child lay claim to neither the mother’s totem
nor titles. However a child born out of wedlock only can acquire the totem of its mother and
has no rights to his biological father. The issue of the nationality of children was however
conclusively settled by the amendment of the Citizenship Act after being challenged in court
in the case of Attorney General vs. Unity Dow (supra). The present act allows for all children,
whether born in or out of wedlock; whether born to citizen or foreign fathers, to acquire
Botswana nationality by birth if one of the biological parents was a citizen of Botswana. The
original statute which was found not only to be discriminatory towards women but also
towards children based on the circumstances of their birth was an embodiment of a
discriminatory customary practice.

Under customary law children born out of wedlock belong to their mother’s family and their
guardianship together with that of their unmarried mother falls under the control of the male
head of the family who can either be the mother’s father, brother or an uncle. The father of a
child born out of wedlock has no duty of support beyond that of paying seduction damages.
These damages usually take the form of cattle or cash and it is a one off payment, usually
meant to compensate the father of the unmarried mother for the seduction of his daughter
who has the right to decide about the fate of the cattle or money. It is not paid for the
support of the child; however the male guardian who receives these damages has a duty to
provide for the child who is the subject of the damages. The father having paid damages no
longer has a duty of support towards his child and such child can no more acquire any such
rights like the right to inherit, or the right to use his name.




                                                                                                  9
b. Custody and access to both parents
Upon divorce, both the legal traditions allocate the child either to the father or the
mother.11The child’s right to access both parents is not recognised. In customary law the
custody of the child is traditionally granted to the father’s family while the mother only has
the right to visitation. The payment of bogadi12 affiliates the children to his lineage. This
however does not guarantee the right for every child to have equal access to both parents. A
child born out of wedlock is deemed to belong to the mother’s family and the biological
father has no visitation rights, that is, even supposing that he wanted to. This differential
treatment of children based on the circumstances of their birth is clearly discriminatory and
antithetical to child well-being.

c. The right to speak and to be heard
The right to speak and to be heard is guaranteed under section 12 of the constitution, and
because there is no specific provision for the same right for children they have difficulty
enforcing it. The primary cause of this position is that under customary law respect for the
views of children is not recognized as a right. There is a general presumption that parents
know what is best for their children, and are better equipped to speak on their behalf.
Consequently children never attend and don’t tend to speak at kgotla13 meetings which
mean that most decisions made at kgotla meetings have little or no input from the children
even when these decisions affect them directly.

d. Inheritance
A child’s rights to inheritance are to a large extent determined by gender and his/her
position in the family. According to custom boys are accorded special status as they are
presumed to be the ones to propagate the family name, whereas girls are not as important
because upon marriage they will belong to their husband’s family. The unequal power
relations which are inherent in customary law mean that male children’ rights to inheritance
take precedence over those of the female children who are at times disinherited. In addition
the oldest male child acquires the right to administer upon the death of the father the family
property, and often in such cases the oldest son will use the property to his benefit
disregarding the rights of the other children. Under customary law children born out of



11 See For example: 1983,Seleka v. Mpetsane, B.L.R., 114, (HC).
12 Bride price, usually paid in the form of cattle to the woman.
13 A kgotla is a public meeting, community council or traditional law court of a Botswana village




                                                                                                    10
wedlock belong to their mother’s family and have no claim whatsoever to their father’s estate
unless provided otherwise.

e. Child abuse and violence
Customary law perpetuates unequal power relations between men and women, favouring
the men as heads of the family, conferring them with rights of guardianship over the women
and children. Family violence has been found to be a direct result of these unequal power
relations between the sexes. According to the report commissioned by the Women’s Affairs
Department in 1998 on the Socio- Economic Implications of Violence Against Women, a good
number of people who suffer from the effects of this violence are children below the age of
15 years of age14. The concept of payment of bogadi upon marriage further exacerbates this
situation as some men use this custom to dominate and violate women’s rights.

f. Corporal punishment
Customary law – like common law – is very much in favour of corporal punishment. The
President seems to be supporting it, as do many religious leaders, teachers and parents. It is
however contrary to child rights to physical integrity and the rights to be treated at all times
with dignity. One issue though is that development programs have not provided alternatives
to corporal punishment, except to condemn the practice as child abuse.



The international context
Most if not all international human rights standards are found in treaties entered into
between countries, international conventions as well as declarations that countries accede
to from time to time. This body of standards is commonly referred to as international law.
Under international law the treaty is binding upon the ratifying states, although the degree
may vary from state to state. According to Article 4 of the CRC for example, national laws
must reflect and/or repeat international standards, that is to say that it must be reflected not
only in legislation but also in administrative processes, including the judicial system. To
ensure this compliance some treaties with self executing language are automatically
incorporated as part of the national laws, and in some states like Botswana which operates
as a dualist system, the treaty or part thereof must be specifically incorporated by legislation.
This incorporation can take two forms, that is, either integration of the whole text of the



14 1998,   Report on the Socio-Economic Effects of VAW, WAD.


                                                                                               11
treaty, or the integration of treaty rules by defining terms in the statute by making reference
to the meaning in a particular treaty.

Although many of the treaties already ratified have not been specifically incorporated it
however does not mean that they bear no significance in the application of the laws of
Botswana, as they have been held to be persuasive by the courts. The case of Attorney
General vs. Unity Dow defines how international treaties can be useful especially in the
interpretation of the law.

‘Botswana is a member of the community of civilised states which has undertaken to abide
by certain standards of conduct and, unless it is impossible to do otherwise, it would be
wrong for its Courts to interpret its legislation in a manner which conflicts with the
international obligations Botswana has undertaken”15

The court further said that “the courts must interpret domestic laws in a way that is
compatible with the State’s responsibility not to be in breach of international law as laid
down by law creating treaties, conventions, agreements and protocols within the United
Nations and the Organisation of African Unity.16

The CRC is part of the international law, and Botswana ratified this convention in March
1995. It contains detailed provisions in relation to all aspects of children’s rights and
freedoms. The State parties are under obligation to respect and implement them by taking
‘all appropriate legislative, administrative and other measures’17. This convention is
particularly premised on the principles of non-discrimination, the best interest of the child,
first call for children, and universality and indivisibility of rights. Its objectives are the survival,
development, protection and participation of all children and it sets down standards in terms
of the recognition and the realisation of all child rights. All laws and policies in Botswana
should meet these standards, follow the principles laid out in the conventions and should
continuously be reviewed according to the evolving national situation to make sure these
rights are guaranteed for all children.




15   1992, Attorney General v Unity Dow, Court of Appeal, Botswana Law Reports 119, per Amissah JP
16   Ibid

17February 2004, Report Submitted by Botswana to the Committee on the Rights of the Child in
application of the CRC, CRC/C/51/Add.9, Section 1.


                                                                                                     12
As part of the international law the CRC has to be read and applied together with other
human rights instruments. Other noteworthy treaties which have been ratified are; The
Convention against Torture and Other Cruel, Inhuman and Degrading Punishment in
September 2000, The Convention on the Elimination of all Forms of Discrimination Against
Women in 1996. Equal enjoyment of human rights and non-discrimination are underlying
principles crosscutting through most treaties and conventions.

This ratification record of major international human rights instruments is however marred by
two factors. The first is that the country is yet to ratify the International Covenant on
Economic, Social and Cultural Rights and the International Convention on the Prevention of
Genocide of 1949. The second is that the country has ratified three conventions with
reservations. The effect of including a reservation is that the party states although electing to
be bound by the provision of a treaty it may exclude itself from being bound by a particular
provision or article. For example; a reservation to retain the use of corporal punishment and
the death penalty, was entered with respect to the Article 7 of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Punishment [1984] and Article 12(3) of the
International Covenant on Civil and Political Rights [1966]; another reservation concerns the
CRC, which will be discussed below.

a. The CRC


The CRC has today been ratified by all countries of the world except for two18, however many
of these same countries continue to ignore blatant violations of the rights which the treaty
promotes. And although widely ratified it is also the treaty with the most reservations.
Botswana ratified this convention in March 1995 and at the same time entered a reservation
with regard to Article 1. The reservation on the CRC was largely due to the multifarious
definitions of a child in Botswana’s laws.

For purposes of this report Article 1 of the CRC defines a child as anyone below the age of 18
years of age. This definition clearly is in conflict with many statutes within the Botswana
Laws, hence the reservation. The rationale was that the reservation would be withdrawn as
soon all definitions are harmonised and made consistent with international standards.
Although there are no plans presently to withdraw the reservation some law reform has taken
place showing the commitment to harmonise national laws with international standards. The

18These   are Somalia and the United States.


                                                                                               13
Affiliation Proceedings Act, which is an example of the government’s attempt to create a
comprehensively protective environment for children, was amended in 1999. This
commitment to harmonizing the laws on the well being of the child also led to the
commission on the review of the Children’s Act, a process which has been on going for the
better part of the last decade. Also recognizing the close relations of the rights of children to
those of women attempts have been made to eradicate discriminatory laws between the
sexes.

b. The ACRWC


Of significant interest however is the ACRWC which was ratified by Botswana in 2001. It
defines a child as anyone below the age of 18 years of age. Botswana ratified this treaty
without giving any reservation and is therefore bound by this definition. Both treaties carry
equally persuasive power and can be used by the Botswana High Court in its role of
interpreting laws to determine what is in the best interests of the child. Accordingly the
definition of a child as provided under the African Charter should take precedence thereby
rendering the reservation under the Children’s Act redundant.


Emerging issues

The Botswana Situation: Human Rights and General Principles of Child Welfare

Botswana has not been totally unaffected by the emerging developments internationally and
regionally, there has been a number of policies, programmes and institutions focusing on the
welfare of children which have been put into place.

Although the government has clearly shown its commitment to the welfare of children there
is however, no single body with overall responsibility for the coordination of policies relating
to children, or for monitoring the implementation of the CRC. What exists is administrative
and institutional structures formulated to facilitate the achievement and implementation of
national child welfare policies and legislation. Different institutional mechanisms may be
found in different ministries depending on the focal point. However the Department of Social
Services (DSS), under the Ministry of Local Government, has been charged with the
responsibility of coordinating and has therefore become the custodian of the convention.




                                                                                                14
To ensure that children’s issues are at the centre of the country’s development agenda, the
government of Botswana’s strategy has been based on National Programmes of Action (NPA)
to guide the implementation of key interventions, the coordination at multi-sectoral level, and
the monitoring of key achievements for children.

In May 1992 Botswana signed the World Declaration on the Survival, Protection and
Development19 of Children whose goal was “to give every child a better life” thereby
committing itself to develop its own national programme of action to provide a social
perspective to national development specific to the rights and needs of children. For
Botswana, the World Summit for Children (WSC) declaration marked renewed efforts towards
the betterment of the well-being of children since the Children’s Act of 1981.

Consequently, after a series of consultations and a national conference, the government
developed the first NPA for Children of Botswana covering the period 1993-2003. This tenure
was chosen deliberately to coincide with the National Development Plan 8 (NDP 8) to ensure
direct mainstreaming of children’s programmes into all the national development agenda.
The Ministry of Finance and Development Planning was charged with the responsibility of
formulating and monitoring the implementation of all national development plans.

The National Council on Population and Development (NCPD) itself housed in the ministry of
finance, is the highest national advisory body on population and development issues,
including children’s issues, was charged with the development and subsequent coordination
and monitoring of the NPA while implementation was largely done by various sectoral
ministries in collaboration with development partners. It was also chosen because also the
highest advisory body to the Cabinet on issues of population and development.

The NPA covered a wide range of issues including; a situational analysis of children in
Botswana, identifying the especially vulnerable children and formulating strategies to
address their needs. It also provided various mechanisms and structures for coordination
and monitoring of its implementation. However, NPA was only approved in 1997, and the
delay resulted in the subsequent failure of its objectives because there was no specific
budget allocated to its implementation for that development period.




19 September 30th, 1990, ` World Declaration on the Survival, Protection and Development of
Children, Un, New York.


                                                                                             15
Notwithstanding these failures, many developments relating to children’s rights were indeed
undertaken under the NDP 8, and to reinforce this general commitment to the rights of the
child, Botswana acceded to the CRC in 1995 and to the ACRWC in 2001.

In 1997 Botswana established a national vision popularly known as Vision 201620 whose
overarching goal is ‘prosperity for all’, and in addition to the national principles of democracy,
development, self reliance and unity, the Vision 2016 defined future challenges and set out
values, principles and goals for the next 20 years. Recognising that the children of 1997
would be the adults of 2016 the Vision sought to focus on the improving the welfare of
children born from 1998 onwards with a view to ensure that all children would have the
opportunity to achieve their full potential.

Incidentally there is a great deal of concurrence between the Vision 2016 and the Children’s
Convention. They are both forward looking, envisioning a future where children are able to
develop to their fullest potential; acknowledging the vital roles played by family life and
parents in children’s development; and the need to protect Botswana’s vulnerable children.
Most importantly the vision refers to “the need to address the conflict between some aspects
of traditional culture and the emerging ‘rights of the child’…” as established under the
Convention.

In preparation for the UN Special Session on Children (UNSSC) in 2001 it was necessary to
review the implementation of the NPA and same was undertaken by the Ministry of Finance
in collaboration with UNICEF. A Multiple Indicator Survey (MIS) was undertaken by the
Ministry of Finance and Development Planning to assess the situation of Botswana children
in view of the objectives which the NPA had set for itself.

This new NPA will run from 2006 to 2016, thus covering major national and international
milestones in its life span: the Millennium Development Goals (2015), the National
Population Policy (2011), the International Conference on Population and Development
(2014), NDP 10 (2015) and of course coincide with Vision 2016. Therefore its final review
will feed into the review of these major international and national development targets. It is
being developed building on the earlier NPA (1993-2003) and continues to make maximum
contribution to the well being of children by ensuring that “the child is at the centre of
programming for the next 10 years and beyond.”. Seven working groups were formed and


20   1997, Long Term Vision for Botswana: Towards Prosperity for All, Presidential Task Group.


                                                                                                 16
tasked to draft the corresponding chapters: Policy and Legislation, Education and Training,
Health and Nutrition, HIV and AIDS, Sport and Recreation, Environment and Safety, as well as
Child Protection. Of these, the Policy and Legislation, HIV/AIDS and the Sport and Recreation
chapters were not part of the previous NPA. In addition, a number of crosscutting issues
were mainstreamed in each chapter: gender, poverty, children’s rights as well as HIV/AIDS.

The Ministry of Local Government through its DSS implements most programmes relating to
child welfare by far. This department’s primary function is to assist the government with the
formulation of welfare policies geared at improving the economic, social, cultural physical
and spiritual conditions of the Botswana society. Included in this very broad portfolio is the
responsibility to coordinate all programmes focusing on children’s issues including
monitoring the implementation of the Convention. The DSS established a National Child
Welfare Committee comprising of various representatives from ministerial child rights focal
points, civil society organizations and aid agencies such as UNICEF whose task was to
overseer, develop and coordinate law and policy actions for and on behalf of children,
publicising the Convention as well monitoring its implementation. Although there has been
some notable developments in the status of children this committee has been bogged down
by obstacles such as, among others; limited resources, poor coordination and collaboration
between sector ministries, low moral…etc. It has been suggested that the better solution
would be to replace this committee with a more effective body.

The DSS has on numerous occasions’ undertaken initiatives to improve the legal and policy
framework for addressing the rights of children in Botswana. This drive to review all laws
affecting children’s rights has been ongoing since the ratification of the Children’s
Convention in 1995. In 1999 the DSS commissioned a review of the Children’s Act in order
to harmonise them with other national child protection laws as well as the provisions of the
Convention.

The Children’s Act was enacted in 1981 and its specific purpose was to deal with issues of
custody and care of children; and for the establishment of children’s and juvenile courts and
other related institutions for the reception of children. Although this may have been
adequate at the time of enactment, the passage of time has brought many changes bearing
on the lives and welfare of children such that this act is today proving to be woefully wanting
in providing adequately for the welfare and wellness of children in Botswana. The
commission identified many gaps and weaknesses within the act but was considered to have



                                                                                                 17
not used the human right based approach in conducting the research. Another commission
was therefore set up in 1999 with a specific mandate to include the human rights based
approach21. The report raised many issues pointing to the inadequacy of the child rights
protection mechanisms within the Act. The report also blamed the many fragmented and
conflicting laws comprised in various statutes of the laws of Botswana. In particular concerns
have been raised regarding the definition of the child.

The following are some examples of the conflicting definitions of a child:

     a. Section 49 of the Interpretation Act22 puts the legal age of majority at 21 years of age
          and it is at this age that a child acquires the legal capacity to act on his/her own
          without parental assistance.
     b. Section 2 of the Children’s Act provides the definition of the child to be ‘any person
          who is under the age of 18 years’.
     c. The Affiliations Proceedings of 1999 defines a child as anybody below the age of 18
          years of age
     d. The Marriage Act (CAP 29:01) places the marriageable age at 21 years of age. At this
          age a child is deemed to become an adult and can accordingly marry without
          parental consent. However the Act was amended to provide for the minimum age of
          18 years whereat the child can only be married with parental consent. This
          amendment took care of an earlier clause that allowed girls and boys to be married
          at 14 and 16 years respectively, as this was differential treatment on the basis of sex
          and therefore contrary to the non-discriminatory provision in the constitution.
     e. The Penal Code23 in Section 141 makes it an offence punishable by law to have
          sexual relations with any child, be it boy or girl, who is below the age of 16 years. It is
          no defence that the child in question consented or whether the child may have
          appeared to be above the age of 16 years.
     f.   The Employment Act (CAP 47:01) defines a child, for purposes of child labour
          regulation as one who is below the age of 15 years. The employment of children is
          illegal




21 1999, Review of the Children’s Act of 1981, Kamchedzera Garton, Department of Social Services,
Ministry of Local Government, Gaborone, Botswana.
22 Laws of Botswana, Cap 01:01.
23 Penal Code Amendment Act of 2000.




                                                                                                   18
The Department of Youth and Culture under the Ministry of Labour and Home Affairs has the
responsibility for developing and reviewing youth (ages 12-2)] related polices, implementing
and monitoring all programmes and initiatives on youth. In addition the department also has
the responsibility of promoting culture and the performing arts particularly among youths.
The main policy to guide programme policy is the National Youth Policy whose main aim is to
work with youths, mainly on project based initiatives such as economic empowerment and
skills training; to establish youth centres around the country providing recreational, training
and counselling activities, especially for out of school youths. The department works in
collaboration with the Botswana National Youth Council as well as many youths focused
NGOs.

Also within the same Ministry of Labour and Home Affairs is the Department of Women’s
Affairs which was set up following the Fourth World Conference on Women, Beijing, in 1995.
The Beijing Declaration identified the girl child as a priority issue as well cross-cutting through
all issues relating to women. Through the National Gender Framework the departments aims
to undertake appropriate action to eradicate the unequal power relations between men and
women, in particular to review all laws affecting the status of women and girls with a view to
enhance their position at all spheres of life.

There are many other activities and programmes undertaken by other governmental
ministries as well as NGOs, which impact upon the implementation of children’s rights in
Botswana. There are a great many NGOs involved in children’s issues.

a. Best interests of the child

Although not enshrined within the constitution the concept of ‘best interests of the child’ is
well understood and appreciated within the Botswana jurisdiction as a guiding principle for
all actions involving children and is progressively being embraced in the many decisions
involving the rights of the child by the Botswana Courts24. The Courts have generally
interpreted it to mean that in all cases involving children the welfare of the child should be
the paramount consideration irrespective of what law is applied. In fact in its original
jurisdiction the High Court has on numerous occasions pronounced itself the upper guardian
of all children in Botswana and enjoins all courts to take into consideration all relevant
circumstances in considering what is best for the welfare of the child. For instance in cases


24   Moremi vs. Mesotlho Misca ,13/96


                                                                                                 19
relating to the custody of the child the courts have been known to take into considerations
such factors as; the needs of the child, means of the parents, living conditions and
educational facilities in determining what is in the best interest of the child. In most cases
especially involving younger children the tendency has been to award the custody of such
children to the mother however this view is being revised in favour of some fathers who have
shown a willingness and ability to provide the necessary care for their children25.

In addition the NDP 8 as well as the Vision 201626 short and long term goals emphasise the
importance of addressing the emerging rights of children. Both of these documents are
aimed at guiding strategic planning proposing action across a broad spectrum whose
objective is sustained development and social justice.


b. Non-discrimination

While section 2 of the Botswana Constitution provides for the protection of all fundamental
rights and freedoms without discrimination it is under Section 15(i) that ‘discriminatory’ is
defined, vis “…affording different treatment to different persons, attributable wholly or mainly
on their respective descriptions by race, tribe, …colour, creed…” Subsection 4 however
creates a list of exceptions where ‘different treatment’ may be allowed under the law and
these are in cases of, inter alias; adoption, marriage, death, devolution of estates, and
matters relating to personal law. In this regard the Constitution of Botswana contravenes the
non discrimination clause of the CRC. Notwithstanding the above, the Courts once again
have adopted a very liberal and generous interpretation of the definition to include other
categories not initially included such as ‘sex’ to ensure gender neutrality in the application of
the constitution. The case in point, Unity Dow v. Attorney General (Civ.App. 4/1991) which
held that Section 15 should be read broadly in the light of Section 3, which includes sex as a
basis upon which discrimination should not be based. Beyond the Constitution, the Vision
2016 has as part of its aims to eradicate all ‘negative social attitudes towards the role of
women, youths, disabled, etc. Specifically the Vision provides that “No citizen of the future
Botswana shall be disadvantaged as a result of gender, age, religion or creed, colour,
national or ethnic origin, etc”.




25   1982, Chiepe v Sago,(1), BLR 25.
26   1997, Towards Prosperity for All, Vision 2016.


                                                                                                 20
In addition to the Constitution there are many other pieces of legislature seeking to regulate
issues relating to children’s welfare. The Children’s Act of 1981 is however the most
important as it deals with the bulk of issues relating to child rights. This act was enacted
eight years before the UN adopted the CRC in 1989, a good many years before Botswana’s
ratification of the CRC in 1995. Although many other actions have been taken to ensure the
country’s compliance with the convention it is important to note that the 1981 Children’s Act
remains in force today, it is therefore important to stop and take stock, reflect on to what
extent has Botswana taken steps to ensure that its laws and policies comply with the
standards laid down by the Convention on child rights.

Many such exercises of stocktaking and reviews have been undertaken by both the
government, UNICEF and other agencies to determine the extent to which the laws of
Botswana comply with the CRC. Of particular concern are the laws regarding the definition of
the child where it has been found that there is no consistent definition of the child. Each
statute defines a child according to the specific purpose which it purports to serve.

c. Right to life, survival and development

A child has a right not only to survival but to development as well. Article 4 of the CRC obliges
all party states to ‘undertake all legislative, administrative and other measures for the
implementation of the rights recognised in the Convention’. This article becomes particularly
important to Botswana because of the legal pluralism that operates in the country, especially
with regards to customary law which is unwritten and varies from community to community,
therefore presenting a challenge as to how to go about reforming and bringing a uniformity
into an unwritten law.

The gaps in the realization of children’s rights in terms of their survival, development,
protection and participation can be attributable to a number of constraints: the impact of the
HIV/AIDS epidemic, the cultural context in which children live, the disparities in levels of
development of different parts of the country, the limited resources of the government,
amongst others. The CRC and ACRWC make it imperative though that, for the realisation of
the rights of the child, actions be taken to address these disparities and these gaps, whether
they result from OR exist in spite of the present legislative and policy framework.




                                                                                               21
The Article 6 of the CRC recognizes that every child has an inherent right to life and obligates
state parties to take appropriate measures to protect the survival and development of
children.

Section 3 of the Botswana Constitution guarantees the protection of the right to life for every
individual without discrimination. The Constitution allows the imposition of the death penalty
as a form of punishment although it can not be imposed on a child below the age of 18years
of age. Although according the common law’s ascriptions, fiction life begins at birth the laws
of Botswana protect the right to life of an unborn child. The Penal Code27 makes it an offence
to terminate pregnancy except where it has been certified by two doctors that the pregnancy
was a result of rape, incest or defilement.

Botswana has indeed ratified the most important treaties which affect the rights of people
living therein, however it still remains to be seen as to whether the one treaty that provides a
standard for the protection of most economic and social rights will ever be ratified. This is
due to the position which the country seems to have adopted, that it will not ratify any treaty
unless and until it has been able to set up the facilities and the institutional mechanisms for
compliance to such a treaty. Now given the ever evolving nature of human needs it may
never be possible as everyday presents new challenges and emerging trends for
governments to address in the quest to provide the best for their nations. So today, the
International Covenant on Economic, Social and Cultural Rights (ICESCR) is yet to be ratified
by the country despite of all the efforts that have been made to ensure that the children of
Botswana are the focus of all development plans.

The right to survival is the most fundamental right of a child. It is dependant on its right to
the highest attainable standard of health, its right to adequate nutrition, and its right to be
protected from any kind of abuse that might endanger life, amongst others. Survival rights
such as the right to health and food security are not specifically provided for in the
Constitution, this despite the existence of a well developed health system that is largely free.




27   CAP 08:01, Laws of Botswana.


                                                                                                  22
d. Basic health and welfare

The Convention engages the state to undertake all appropriate measures to ensure that
children enjoy the right to the highest attainable health and ensure that every child has
access to health care services. In Botswana preventable diseases such as pneumonia,
various intestinal and acute respiratory infections have been recorded as being the
responsible for the deaths of the majority of children. Hunger and malnutrition are also
recognised as threats to the survival of all children. Under the NDP 9 the survival of children
has to be ensured through provision of good quality primary health care services, through a
system that integrates preventive, rehabilitative and curative health care methods. Presently
access to health care facilities within reasonable distance is currently at 92% of national
coverage and health care services are free for children. It is however overburdened because
of the HIV/AIDS epidemic: resources have been redirected to respond to the crisis and
attention withdrawn from routine childhood illnesses as well as provision of childhood illness
preventative interventions.


The HIV/AIDS pandemic is recognised as the greatest challenge to Botswana’s child survival
goals. Botswana has not only one of the fastest growing infection rates but it also has the
second highest prevalence record, both of which impact negatively on children’s survival. The
number of HIV positive children is not known but it is predicted that the most affected
section of the population will be children under the age of 5 years28. The government key
intervention to ensure the survival of children in view of the pandemic is the Prevention of
Mother to Child Transmission (PMTCT) programme. This is a process that encourages the
early diagnosis of HIV status of pregnant mothers and proving them with drugs to inhibit
parent-to-child transmission. However, the limited access to ART for children living with HIV
has also contributed to the increase in child mortality especially children less than 5 years.

There are also an increasing number of people who need care and support at household
level due to the pandemic. As a result of the magnitude of the HIV/AIDS epidemic, children
have been recorded as the most vulnerable and affected group in Botswana and this is
mainly because of their role as care givers and their general lack of access to economic
resources. The increasing number of deaths from HIV related diseases has increased the
number of orphans in Botswana with the total number of orphans representing 15.2% of the




282000,   Health Statistics Report, CSO


                                                                                                 23
total child population of Botswana and 2% of all households being child headed.29 Most of
these child headed households are poor and have little or no access to adequate feeding
other than the orphan care assistance package provided by the Government.

Poverty also poses a great challenge to the realisation of children’s survival rights. Children
have the right to an appropriate standard of living. As afore mentioned, 30% of the
population of Botswana live below the poverty datum line. Children live in majority in female
headed households and in rural households, which are both disproportionately represented
in the poor population. Most of the orphans are also taken in by female headed households
adding to their vulnerability. Children living in poor households have limited access to what
they would need to ensure their survival: health, nutrition, lacking both parents to take care
of them and provide adequate protection, etc… Malnutrition or inadequate feeding is a huge
contributing factor to the high mortality in early childhood and is a result of extreme poverty,
despite Government food supplementation programmes.

e. Education and social welfare
“By the year 2016, Botswana will have a system of quality education that is able to adapt to the
changing needs of the country as the world around us changes.”30


Botswana has done considerably well in achieving her goals on general education for all,
however the country still has some ways to go in order to achieve the goals for the expanded
vision on basic education as encapsulated in Vision 2016. It is envisioned that we should be
able to anticipate a future where citizens would have attained beyond basic education, that
is, to be an educated and informed nation by 2016. However as will more fully appear in the
report there is dire need for additional policy guidelines and strengthening of institutional
capacity in some areas of the education if these goals are to be realized.

The development of a child is the key to his future potential and prospects. A child’s right to
development refers to the physical, mental, intellectual, spiritual, moral and social
development needs being met. Education and health are traditionally seen as the pillars of
child development, although other sectors contribute to adequate and full growth.




29 2005, ‘Analysis of Child Focused Indicators’, based on the 2001 Housing Population Census, CSO,
UNICEF
30 1997,Vision 2016: Towards Prosperity for All, GOB.




                                                                                                   24
Intellectual as well as social development is mainly happening at school. Until 2001
Botswana had very little by way of policy of infrastructure addressing the needs of children
below primary school going age of 6 years. However due to the adoption of the Early
Childhood Care and Development (ECCD) approach which deals on the development of
children from the earliest stages of their lives not only focusing on care and education, but
also health, nutrition, water and environmental sanitation, and child protection. This
approach, which emphasizes parental and community involvement in early childhood
development, is still in its formative years as such there are some gaps in information, more
so because most of the early childhood education centres are not government operated.
There is a need for a survey to determine information on, among others, characteristics of
the children and the teachers among the centres, the curriculum being taught, and the
centres’ adherence to standards and guidelines in terms of health, nutrition, safety,
enrolment age, etc. This would greatly facilitate the development of a more functional policy
on ECCD.

The National Policy on Education (NPE) of 1977 and the Revised NPE of 1994 provide the
basic policy framework on education and having adopted the ECCD in 2001 the RNPE has
accepted the challenge of providing two years of universal pre-school education even though
the implementation is left outside the parameters of the RNPE thus allowing partners outside
to assume leadership in the provision of these services. In addition there is the National
Council of Education (NCE) which was established some 22 years ago to monitor the
implementation of the education policy, advice the government on the education system,
policy formulation and fostering awareness of the NPE. By and large these processes have
been successful as history shows that most of the policies on education have been
formulated when the need arose however more effort has to be put on raising awareness
and an implementation strategy has to be formulated to ensure that the education policy
continues to be proactive to respond to the evolving education needs of the country.

Both the NPE and the RNPE stipulated a clear target of reaching a universal access to
primary education and mapped out strategies for implementation. The government’s 10
years free basic education has allowed enrolment rates to reach 87%; however, education is
not compulsory, and vulnerable children are overrepresented in the 13% remaining out of
school.31 Further more, although the infrastructure for attaining the basic education is fully
developed and the country surpassed its target the quality of education remains a recurring

31   2001, Education Statistics, CSO.


                                                                                                 25
concern. In addition to the acquisition of a comparable academic qualification there is a
variety of skills, knowledge and attitudes that young people need to acquire to improve their
life choices and for human and economic development.

Another challenge is the very low transition rate into senior secondary and tertiary
institutions due to capacity and infrastructure constraints. The huge child population
dropping out school fuels the growing number of out-of-school youth left outside of the
system. Finally, the quality of education is becoming more and more of a concern, with
issues such as the provision of life skills, improving learning capacities and creating a child
friendly school environment becoming key to equip children for their adult life once
graduated from school. Tragically, however the young people in Botswana are at present the
hardest hit in terms of both HIV/AIDS prevalence and infections. According to reports at least
28% of the sexually active population (15-49) is HIV positive and the majority is youth. The
fact that most young people are either still in school or have recently left school reflects badly
on the education system, raising a legitimate question about the adequacy of life skills and
attitudes which are being taught in school. A policy needs to be developed as a matter of
urgency to response to the HIV/AIDS in the school population charging the education sector
with the responsibility to reverse the trend of the HIV infections and help the children who are
infected and affected by HIV/AIDS. Vision 2016 directs that ‘the further spread of the HIV
virus in Botswana must be halted if we are to avoid catastrophic consequences … We must
expand and diversify family planning and education services to the youth to reduce the
incidences of HIV/AIDS along with other sexually transmitted diseases …”

The health of a child determines its physical and mental development, with adequate
nutrition and protection from exposure to health hazard maximising its potential for full
growth. As children grow and become adolescents, their developmental needs become
broader and more complex: not only do they need their rights protected but they need to be
empowered to avoid engagement in risky behaviour, such as early sexual activity and
substance abuse. For instance, according to the Ministry of Health report on ‘The Sexual
Behaviours of Children in Botswana’, it would appear that the average age of first sexual
behaviour is 17 years of age,32 and that although not planned it was usually with a sexual
partner of the same age. However concern was raised about the ability of girls to take control
of their sexual activity: many girls still find it difficult culturally to negotiate for safe sex often
resulting in increased teenage pregnancy or increased incidences of sexually transmitted

32   2001, The Sexual Behaviours of Young People in Botswana, Ministry of Health, Botswana.


                                                                                                     26
infections. The report also showed that for almost half of sexually active girls aged between
10-14 years, their first sexual experience was coerced. Abuse – sexual, physical or emotional
– threatens the healthy development of children at any age. Little evidence is known on the
subject but 1591 cases of sexual violence had been reported in 199933 and 27%34 of
reported rapes seem to be involving children under 16, which is the age for defilement as per
the Penal Code. Towards the end it is imperative that life skills programmes should be
developed and infused into the curriculum, lessons from other countries such as Zimbabwe,
Namibia and Uganda would prove valuable in ensuring that the right approach is adopted.

The emotional and social development of a child however starts primarily with the family. In
Botswana family life has undergone many changes due to the evolving socio-economic
situation. The extended family is fast being replaced by the nuclear family and there are an
increasing number of single parent families as more children are born out of wedlock. Also,
with the increasing impact of HIV/AIDS, many children have been orphaned and deprived of
their own families maybe even becoming heads of families themselves. As a result the rights
of the child to be cared for by both parents is not being realised by many children. The
increasing number of orphans has doubled the burden of care on families. Grand-parents
now have to be the primary care givers for orphaned children. They are usually old, poor,
often weak and unable to provide the necessary stimulation for the optimal development of
the children. They are even sometimes the ones being cared for by these children.

Although the respect of fundamental human rights and the rule of law are central to the
Constitution of Botswana, there are some concerns about gross inequities experienced in
participation rates, groups of children who are routinely disadvantaged by the education
planning such as girls, children with disabilities, rural children and other vulnerable children.
A general lack of sensitivity to their specific needs makes them more susceptible to abuse
and neglect, which threatens their survival.

By virtue of their numbers and the degree of vulnerability, adolescents need integrated
measures to ensure full and safe passage into adulthood. In particular vulnerable and
marginalised groups have special needs in terms of their development, especially promoting
good health and preventing teenage pregnancy, which is responsible for 38% of the drop-out
rates in secondary schools and sexually transmitted infections including HIV/AIDS. These

33  2003, Report of Botswana to the United Nations Committee on the Rights of the Child,
CRC/C/51/Add.9.
34 1999, ‘Report of a Study of Rape in Botswana,’ Ministry of the State President, Botswana.




                                                                                               27
include rural children, children in conflict with the law, refugee children, girls and other
children in need of care. The special vulnerability of girls is illustrated by the HIV prevalence
data: in the 15-19 year-olds, HIV/AIDS prevalence is 12 times higher than the rates recorded
for boys of the same age35

In 1999 a survey36 reported that about 21.5% of girls aged 15-19 attending pre-natal care
are HIV positive. Teenage pregnancy increases the dropout rate for girls leading to high
propensity to poverty as a result of lower academic achievement.

The Constitution of Botswana provides for protection of all fundamental human rights without
discrimination on any basis whatsoever but due to the special circumstances of these
children; the full realisation of their right to development requires special programmes to
promote access to resources to address all their developmental needs. For instance the
present education system is facing the challenge of providing adequate educational
opportunities for disabled children: statistics show that 28% of disabled children never
attended school37. The general attitude towards children with disabilities is slowly changing
with the government being at the helm, indeed a national policy for the care of people with
disabilities has been formulated, its objective is to combat the incidence of disability and to
promote the quality of life of people living with disabilities especially ensuring that; the health
sector continues its existing disability prevention programmes and providing health related
services to people with disability; the education sector to ensure that special education
remains an integral part of formal and informal education; and that all policies and
developmental plans formulated by local authorities make adequate provision for people
with disabilities.

Apart from outlining of roles and responsibilities of governmental agencies the policy also
recognises the role played by the various NGOs and urges the government to provide
assistance to NGOs that provide services to people living with disabilities.

Various NGOs as well as The UN Committee on Children’s Rights have recommended that a
proactive policy supported by a legal framework should be developed for the education of
children with disabilities, whose aim would be, inter alias; increasing the visibility of children

35 2004, United Nations SG’s Task Force on Women, Girls and HIV/AIDS in Southern Africa-Botswana,
Country Report.
36 1999, Sentinel Surveillance Report of the AIDS/STD Unit.
37 2005, ‘Analysis of Child Focused Indicators,’ based on the 2001 Housing and Population Census,

CSO, UNICEF.


                                                                                                28
with disabilities in education institutions; facilitate for special accommodations in the
learning environment; facilitate for special accommodations for teenage girls who drop out of
school due to pregnancy; make provision for training of specialists to carry out the necessary
assessments in order for early identification of children with learning disabilities; etc.

Under the 1981 Children’s Act the neglect of children is an offence. Neglect is defined to
include the unreasonable failure to provide the basics needs such as food, clothing, shelter,
health care as well as exposing a child to conditions or circumstances likely to cause harm.
The family and in particular parents are considered to be the best people to provide care and
support to children and although single parenting is becoming more the norm in today’s
society the Convention makes it a common responsibility for both parents to maintain their
children. Statutes such as the Affiliation Proceedings Act as amended in 1999 and The
Maintenance Orders Enforcement Act (CAP 29:04) make it possible for the recovery of
financial support from absconding fathers. However, these processes are plagued by many
enforcement problems. The procedures for obtaining orders have been found to be onerous
and difficult to understand therefore necessitating the need for legal assistance which does
not usually come cheap. At times the unavailability of court facilities means that the
applicants have to travel long distances at their own expenses. These problems mean that
children end up being denied the right to adequate support even in situations where one or
both of their parents are able to provide it due to ineffective enforcement mechanisms.

Violence and abuse of children are widespread in Botswana and “sexual […] abuse of
children is (in particular) rapidly increasing.”38 Girls especially have been reported to
constitute the largest number of victims of physical and sexual abuse. 39 The report on the
study of rape in Botswana40 showed that girls under 18 years of age constituted the majority
of victims of all reported rape cases in 1999. This is largely due to traditional norms which
tolerate such violence. The “leniency with which rapes are dealt with by families41” is an
example, often not pressing charges, asking for a mere apology or financial compensation.
One explanation can be found in the unequal power relations between girls and boys that
customs are still promoting. Economic power relations are illustrated by the incidence of
young girls being attracted by material inducements offered by older men who offer them


38  2003, Report of Botswana to the United Nations Committee on the Rights of the Child,
CRC/C/51/Add.9
39 1999, ‘Socio-Economic Impact of VAW in Botswana,’ Women of Affairs Department, Botswana.
40 1999, ‘Study of Rape in Botswana,’ Botswana Police Service, Botswana.
41 Ibid.




                                                                                                29
money and gifts in exchange for sex, the so called ‘sugar daddy syndrome’. The fact that
young children are considered unlikely to be HIV-positive makes them even more vulnerable
to sexual abuse and this is especially true for young girls.

The penal code regulates the prosecution of all cases violence, abuse and sexual exploitation
of children, but finds excuses for the perpetrator if he has reasonable grounds to believe that
the girl was old enough.42 Also, cases are often withdrawn before they reach the courts. This
is due to the fact that the many perpetrators of child abuse are family members who are
often charged with the responsibility of providing material support for the children.

The use of corporal punishment as a state sanctioned form of punishment is a real cause of
concern, especially in the face the goals of Vision 2016.

There are a number of civil society organisations which advocate for children’s wellbeing
such as Childline whose mandate includes the protection of children against abuse as well
as providing counselling services through a call-in centre in Gaborone. However most of
these are located in the urban centres and are unable to service the rural child population of
Botswana adequately.

The high mortality rate as a result of HIV related diseases has left many children orphaned
and destitute. In order to survive many of these children have turned to risky behaviour often
bringing them in conflict with the law, such commercial sex for girls and crime for boys. In a
2001 census 111,000 orphans were counted while about 52,000 were registered by the
Ministry of Local Government, highlighting the proportion of children that have not yet been
identified by the authorities and hence not being catered for. These orphans are even more
vulnerable to abuse and neglect.

f. Civil rights and freedoms
Citizenship and nationality are regulated by the Citizenship Act (CAP01:01)] of 1982 as
amended in 1985 and 1995 respectively. Under Section 14 of this act all children born in
Botswana obtain the citizenship of Botswana as well as that of their parents but are obliged
to choose and denounce one when they reach the age of 21 years. However prior to these
amendments the position was entirely different, it afforded different treatment to children
dependent on the circumstances of their birth or the marital status of their parents at the


42   Penal Code, Section 147.


                                                                                              30
time of their birth. To acquire citizenship by birth or descent a child needed to either be born
out of wedlock to a Botswana mother or if born in wedlock the father had to be a Botswana
citizen at the time of birth irrespective of where they were born. Effectively this position was
discriminatory to Botswana women as they could not pass on their citizenship to their
children unless they had the children out of wedlock. It was also discriminatory against
children born out of wedlock as it afforded preferential nationality passed on by their fathers
to children born in wedlock. This position of the law was successfully challenged in the case
of Unity Dow v. Attorney General (supra), resulting in the 1995 amendment to allow
acquisition of citizenship by birth if either parent is a Botswana citizen at the time of the
child’s birth.

Under the Adoption Act43 an adopted child acquires the citizenship of its adoptive parent(s) if
at the time of adoption such parent(s) was a citizen of Botswana. Upon adoption all the rights
and responsibilities between the child and its natural parents are terminated except the right
to inherit intestate.

The right to hold opinions and receive and impart ideas without interference is protected
under the Section of the Constitution which guarantees that no person should be hindered of
the enjoyment of his freedom of expression except under reasonable circumstances in the
interest of the public. Dissemination of information is encouraged through the mass media,
with many programmes targeting issues affecting the youth especially issues of adolescent
health and sexual rights. Even though there are no formal restrictions for children to exercise
this right, cultural beliefs and attitudes do not perceive the respect for the views of a child as
a right and limit children’s opportunity to exercise it.

Most traditional cultures of Botswana do not give consideration to involving the child in the
taking of decisions that concern them. A child will be heard through his parents who
themselves are often “guilty” of making decisions with little or no consideration for their
children. Children are traditionally taught to “be seen but not heard.”

Freedom of conscience includes the right to exercise a religion of choice whether alone or
with others, in public or privately and it is likewise guaranteed and protected by the
constitution. One of the objectives of the Basic Education Plan is to promote the



43   Laws of Botswana, CAP.


                                                                                                31
development of critical thinking offering an optional course on religious and moral education
without affiliating to any specific religious traditions.

The freedom to assemble and associate freely without interference is also guaranteed in
Section 13 of the Constitution. In this respect children are allowed to participate in political
activities at a very young age. However, children can only be allowed to join trade unions at
the age of 15. For children the right to privacy can only be enforced once such child has
reached adulthood. Traditionally there is a presumption that as long as parents bear the
responsibility of guiding and directing the child’s life they have a commensurate right to
access everything including private correspondence.

Whereas a child has a right not to be subjected to inhuman and degrading punishment, there
is however widespread support of corporal punishment in Botswana. The use of corporal
punishment is authorized by statute and although allowed in schools it is strongly regulated.
It is meant to be used to reform children and the rules stipulate that it must be moderate and
reasonable. However, notwithstanding the strict regulations the administration of corporal
punishment on children violates their right not to be subjected to inhuman and degrading
punishment. There is growing awareness of the potential to abuse by those in positions of
authority and the potential for psychological damage on the children can not be overlooked.

g. Protection of children in vulnerable situations


Due to Botswana’s peaceful political environment the country has been targeted by many
asylum seekers from the neighbouring countries. As many as 4 000 refugees have been
registered at one time and many of these were children either on their own or accompanied
by parents. In compliance with its international obligations Botswana established a refugee
settlement in order to facilitate the provision of support to the refugees. The refugees are
supplied with basic commodities such as food, clothing and shelter. The educational needs
of the children are catered for by a primary school and a secondary school which also caters
for the local population.

A health clinic on the settlement also serves the health needs of the refugees and the local
communities. The service delivery of both these facilities has been hampered understaffing
and lack of adequate interpreters. To combat these problems the refugees themselves have
been used as teachers and peer counsellors. Crime and sexual violence particularly against



                                                                                               32
children have been reported to be quite high although there is a police station providing
support and protection to the refugee camp.

Section 10 of the constitution entitles all persons within in Botswana to the protection of the
law. With respect to children this means that a child who is in conflict with the law has a right
to be tried within a reasonable time by an independent and impartial court of law. The CRC
encourages state parties to develop measures that prevent and protect young people from
coming in conflict with the law. For those children who are already in conflict with the law,
state parties are encouraged to establish responsive and restorative justice systems that are
fair and humane at the same time fostering rehabilitation of these children.

The Children’s Act is the principal statute regulating issues relating to juvenile justice and
establishes juvenile courts to hear matters involving children. The act provides that all cases
involving minors may be heard on camera in the presence of a parent/guardian and/or
social worker/probation officer. These juvenile courts as they are commonly referred are
under obligation to use deprivation of liberty as a last resort and promote the use of
alternative care such as schools of industries as much as possible. In exceptional cases
warranting detention it should be for the minimum period allowed. Detention centres for
juvenile offenders must run programmes geared towards rehabilitation, education and skills
training.

Contrary to the good intentions of the act the juvenile justice system has been bogged down
by problems; there is today only one school of industry, and it only admits boys and this
creates a dilemma for a magistrate who is faced with a particularly difficult child thereby
leaving him/her no choice but to detain such a child; there is a general lack of trained
probation officers and the social workers are overworked; the act does not consider the
family to be an alternative care unit and fails to provide for adequate diversionary measures.
The act however prohibits the publication of the names and addresses of the juvenile to
protect their privacy. In sentencing the court can not impose a prison sentence on a child
below the age of 14 years but can order corporal punishment which can be imposed on boys
only. The death penalty can not be imposed on a child below 18 years.

Children belonging to minority groups often live in remote areas and often socio-economically
marginalized. Some of these groups may not even speak Setswana and have difficulty
adjusting to a different way of life than their traditional lifestyles which have now become



                                                                                                 33
unsustainable. The government established a programme, recognising that some of these
communities such as the Basarwa or San needed special attention to promote their social,
economic and cultural development, in particular to encourage the formation of permanent
settlement to facilitate the provision of basic social services such as schools, health clinics
and safe water.

The Department of Social Welfare is tasked with the responsibility of providing material and
psychological support to all children in need, particularly orphans and destitute children. The
Adoption Act defines an orphan as ‘a child below 18 years who has lost one parent or two
biological or adoptive parents’. As aforementioned the HIV epidemic has left many children
orphaned and destitute, all of whom need to be provided with basic necessities and care. In
1999 after a consultative process a Short Term Plan of Action for Orphans was developed
whose objectives to; among others; facilitate the registration of all orphans in Botswana;
establish district officers desks whose responsibilities would be to facilitate the supply of
food baskets to the care givers of these children Also included is provision for clothing,
shelter and other costs related to child welfare. The 2001 census recorded about 111,000
orphans. However, about 52,000 orphans have been registered by the Ministry of Local
Government, highlighting the proportion of children that have not yet been identified by the
authorities and hence not being catered for. These orphans are even more vulnerable to
abuse and neglect.

As with other good intentioned plans there have been many obstacles, ranging from
shortages of human resources, transport, and general awareness. Most of the technical
support has been provided by aid agencies such as UNICEF and UNDP. The main concern for
districts and rural villages is that whatever little framework for the welfare of children that
does exist it is not well organized with very little communication between them. Accordingly
there is dire need for the improvement of services at district and village levels.

Law reform and children’s human rights

The CRC obliges the state parties to take all appropriate measures including legislative and
administrative measures, to ensure the effective and full enjoyment of all rights and further
to ensure that the national laws comply with provisions contained therein. Vision 2016
underlines the need ‘to review all laws that are inconsistent with the full enjoyment of




                                                                                                  34
constitutional rights’ to ensure that national laws conform with international human rights
standards.

In order to comply with the national aspirations and international standards, as well as
address current and potential challenges Botswana undertook a massive law review process.
This involved a reform process that promoted use of the law to make maximum contribution
to people’s well-being. This would not only reveal many gaps in the law, but also possibilities
for solutions. There have recently been three types of law reviews that could be linked with
child well-being in Botswana.

The first type of law reform consisted of piecemeal amendments of relevant statutes or part
thereof. It was exemplified by the review and amendment of the Penal Code in 1998, which
focused sexual offences and sexual exploitation. This review and amendments were
reactions to the country’s high HIV prevalence and rape and defilement cases. There were
further calls to make the law more gender-neutral. The response was to come about in
1998, making the definition of rape gender-neutral, as well as introducing severe
punishments.

This type of law reform failed to address the problem holistically. It was result oriented and
failed to take into account the root causes of the violence. Accordingly, to redress the
inadequacies of the first type of law reform, a new strategy was adopted, which consisted in
checking laws against international standards. The review of all laws relating to the status of
women and the early efforts to review the Children’s Act are examples of this strategy. These
reviews however only focused on existing laws and international standards and not the
aspirations of the people or the need to use the law to make maximum contribution to well-
being within the country’s politico-economic context.

Supported by UNICEF, the Government in 1999 commissioned a consultancy to review the
Children’s Act. The need for the law reform process was organic within the country. The
consultancy produced a report44 in June 2000 which included recommendations on how the
Act should be amended. Once again the review process could not yield the desired result; it
was indeed felt that the Children’s Act if amended in this way would still fail to address the
core problems affecting the full realization of children’s rights.


442000, ‘ Report of the Review of the Children’s Act (1981)’, Duma Gideon Boko, Tachilisa Bulele,
Bugalo Maripe, and Log Raditlhokwa, Gaborone, Botswana.


                                                                                                 35
The pressure mounted as Botswana submitted its first country report to the UN Children’s
Committee on the Rights of the Child in 2001. This report identified many inadequacies and
contradictions in both the customary and statutory law. It also pointed to the need to review
all laws to ensure not only compliance with international standards but make maximum
contribution to society's compliance with human rights principles, particularly child rights
principles, with the principle of non-discrimination underlying the need for sensitivity to
gender and other disparities; to contribute to the capacity development of duty bearers and
rights holders in the enjoyment of human rights, particularly child rights.

Finally, it was understood that the review had to be human-rights based involving a process
that focused on the enjoyment of child rights and children’s well-being while centring the
review process on the situational analysis on the status of children today. Other elements
considered key in a human rights-based approach to law reform are; a gender perspective, a
life cycle approach, linkages with social policies, and budgetary allocation, all matters which
were embedded in the methodology of the review

In the human rights based approach review of the Children’s Act45, issues linked to
customary law were identified. The review found that there was no focus on child rights goals
and human rights principles in Botswana’s legal system, including in customary law. Although
there were references in few statutes and court decisions to the principle that the welfare of
the child must be paramount in matters of child custody, the principle that the best interests
of the child must be a paramount consideration in all decisions and actions that concern
children was not underlying in all legislation. Some laws contained discriminatory provisions
especially against children born out of wedlock and girls, reflecting the positions of
customary law and culture. For example, the Birth Registration Act, No 48 of 1968 (Chapter
30:01, Laws of Botswana), sections 6 and 19, allows for discrimination against a child born
out of wedlock because it does not recognize the rights of the father consequently denying
the child access to both parents; Administration of Estates, Act No. 20 of 1972 (Chapter
31:01, Laws of Botswana), also allows the for discrimination against a child born out of
wedlock, because it fails to acknowledge the rights of such child to inherit from the biological
father, consequently neglecting the views and best interests of all children concerned.
Discrimination and vulnerability resulted from the diversity in definitions of a child in law.
Other child rights principles, further, were infringed by legislation most of all because the
views and best interests of the child are not given paramount consideration. Most of these

45   2003, Review of the Children’s Act of 1981, Kamchedzera, G., Gaborone, Botswana.


                                                                                                 36
laws on child well-being embedded discriminatory provisions and focused on the protection
of the welfare of adults. Statutory law on maintenance,46 and customary law, for example,
contained no stipulation that the child should have access to both parents.

The law also contributed to the victimisation of children instead of according them
protection. On inheritance, statutory and customary laws allowed too much testamentary
freedom on the dispossession of surviving widows and children.47 Customary law encouraged
corporal punishment, whilst the Education Act regulated the practice in schools.48 The
customary law’s condemnation of arranged and early marriages as well as the customary
unequal access to resources by men and women, husbands and wives, partly contributes to
the high incidents of early parentage, intergenerational sex, incest, rape, defilement, and
other forms of sexual violence.

Although there are good practices in the delivery of basic social services, there are no duties
enshrined to require provision of such practices, thus rendering them unsustainable. For
example, the Public Health Act49 does not provide for the right to the highest possible
standard of health. It also fails to address current issues such as those related to HIV and
AIDS and reproductive health, despite some good practices. The Education Act50 does not
recognise the right to compulsory primary education, but allows corporal and other
punishments without a right to be heard thereby falling short of reflecting principles of child
rights and particularly not recognising the right to be heard for a child subjected to
disciplinary measures

But the review did propose the enactment of a legislative framework that would harmonise
all the sectoral legislation so that they respect or entrenched the core principle of children’s
human rights, especially the child’s rights to survival, development, participation and
protection. The review also proposed the setting of a target date for the identification of
traditional practices and customary law that were respectively compatible or incompatible
with child rights principles and goals. All efforts to harmonise the domestic law with
international standards has been focused on changing the written law, and in this case the

46 1962, The Deserted Wives and Children’s Act, No.29, Chapter 28:03, Laws of Botswana, and the
1970, Maintenance Orders Enforcement Act, Act No.59 of Chapter 29:04, Laws of Botswana.
47 2001, ‘Initial Report to the United Nations Committee for the Convention on the Rights of the Child,’

Government of Botswana.
48 2004,’ Report of the Review of the Botswana’s Children’s Act of 1981’, Department of Social

Welfare, Gaborone, Botswana.
49 1971, Laws of Botswana, No. 44, Chapter 63:01,
50 1966, Laws of Botswana, No.40, Chapter 55:05.




                                                                                                     37
existing common law, thus leaving out the largely unwritten customary law. However,
regardless of its inferiority, customary law is still widely observed and impacts greatly on the
rights of the child. It should therefore be included in the processes of law reform.


Reporting status to the UN Committee on the Rights of the Child

Article 44 of the CRC obliges state parties to submit reports to the Committee on Children’s
Rights detailing the measures put in place to ensure that all children’s rights enshrined
therein are recognized and enforceable. The initial report must be submitted within two (2)
years of the country’s ratification and it must also include details of all obstacles
encountered if any and possible ways of overcoming them. Although Botswana ratified in
1995 the initial report was only submitted in 2001. Much of the reasoning behind this delay
was to the effect that it was desired that more effort, both legislative and administrative was
to be made to comply with the provisions of the Convention before initiating the report. In
particular the country felt that they were not yet ready to withdraw the reservation on Article
1 as many of the laws relating to child rights had not been reviewed to ensure that they
complied with the provision on the definition of a child. The main statute being the Children’s
Act of 1981 had been under review since 1991 but the completion of this process was still at
large.

As already mentioned the responsibility to publicize, monitor the implementation of the
Convention and prepare the reports lays with the Ministry of Local Government especially
The National Child Welfare Committee (NCWC) under the Department of Social Services. The
convention has been translated into Setswana to promote wider access and there are
ongoing newspaper articles on the Convention supported by UNICEF. However it has been
reported that there is a general lack of knowledge about this treaty amongst all key players
such as parents, teachers, police, government social welfare officers, NGOs, etc.51 The blame
for the failure to adequately publicize the CRC has been attributed to the fact that the NCWC
has been redundant since its inception due to poor attendance to meetings, lack of
commitment and inconsistent membership. However recent attempts to revamp the
Committee has led to a recommendation that a statutory National Council on Children be set
up comprising of members from government agencies, NGOs, and the private sector and
because of its strong legal status it would have the requisite force to implement the CRC

512004, ‘NGO Complimentary Report on the Status of the CRC Implementation in Botswana’,
BOCONGO.


                                                                                               38
effectively. Unfortunately this process together with the review of the Children’s Act has been
bogged down with problems and progress has been slow, much to the detriment of the
children whose welfare is being compromised.

Some NGOs aided by the government and/ or other donor agencies have however
undertaken awareness raising campaigns on issues relating to international human rights
standards. Limited resources and the fact these NGOs are mostly situated in urban centres
limits accessibility and fail to reach the majority of children as well as service providers.

The preparation of the initial report involved a series of consultations with key people from
sector ministries, district administrators and NGOs. More technical advice and assistance
were provided by UNICEF and other UN agencies. The report was thereafter circulated to
government ministries and NGOs who gave their approval and endorsements. However, it
has been acknowledged that the government needs to make a more concerted effort to
disseminate and publicise the Convention first and foremost.

Outside this report there was a shadow report prepared by NGOs through the Botswana
Council of NGOs (BOCONGO). This was prepared in terms of Article 45 which provides that
the UN Committee may invite ‘specialised agencies…and other competent bodies’ such as
civil society actors including NGOs to provide expert advice on the implementation of the
Convention. This report was prepared as a complement to the Botswana status report on the
implementation of the CRC, and it was meant to reflect the views of NGOs in the area of child
welfare. It compliments the information relating to achievements made to date, and it also
identifies gaps and inconsistencies in the state report. Like the state report its preparation
involved consultations with various stakeholders including NGOs, various governmental
agencies, UN agencies especially UNICEF and all other stakeholders involved in child
welfare.




Conclusions and recommendations

In 2004 the UN Committee on Children’s Rights considered Botswana’s initial report and
made its recommendations.52 These have been forwarded to Botswana, and some of the
concerns raised have already been discussed in the report. The Committee applauded

52   2004,’ Concluding Observations of the Committee on the Rights of the Child’, CRC/C/15/Add.242.


                                                                                                 39
Botswana for the adoption of the National Programme of Action and the ratification of the ILO
Conventions on Minimum Age and the Prohibition and Elimination of Worst Forms of Child
Labour (No. 138 and 182 respectively) in 2000. The Committee also noted that the effect of
the HIV epidemic has indeed reversed most of the positive developments relating to the
implementation of children’s rights. There was however a general concern that although the
report was good it lacked some data especially disaggregated data, in particular data on the
participation of children with disabilities in public life, the stigmas there are exposed to and
access to public places.

Although appreciative of the comprehensive review of the Children’s Act and the other laws
on children’s welfare the committee remained concerned that the process had been too
slow, especially because the current act failed to take into consideration the provisions of the
CRC; that the country had failed to incorporate the Convention into national legislation; and
further that there were some customary law and traditional practices which did not comply
with the principles and provisions of the CRC on child rights; that the law reform that has
taken place has been ad hoc, rather than holistic; and adequate institutional development
and resource allocation have not accompanied even the legislative reforms introduced to
harmonise the national laws with the CRC. The focus has been on protection rights with
some effort being made to address gender inequalities and discrimination against women
and girls, and survival and development rights of children have been undermined due to the
inability to commit resources for basic needs such as health and education. Participation
rights have also been largely ignored in law reform.

A recommendation was therefore given to the effect that Botswana should as soon as
practically possible finalise the general review of all laws affecting the rights of children,
including the Children’s Act with a view to harmonizing them with the CRC. It was further
recommended that the CRC should be incorporated into domestic laws and in particular
customary law should be reviewed periodically to ensure its conformity with the CRC.
Although it will take time for these changes to be effected the review is presently being
accelerated and it is presently incumbent on the Ministry of Local Government to issue
instruction to the Attorney General to prepare a draft bill incorporating the recommendations
of the review process. It has been noted that most of the law reform had failed to take into
consideration the existence of customary law despite the fact that it was indeed the living




                                                                                                 40
law for most of the Botswana people. However a review of the customary law53 has been
undertaken with the help of UNICEF to ensure that customary law is properly recognised, its
positive values of child welfare reinforced and the discriminatory aspects done away with
accordingly.

The Committee also concluded that the political will to harmonise domestic law with CRC
commitments has not been adequately reflected in the initiatives taken especially regarding
the allocation of resources both human and budgetary to support the implementation of the
CRC. Of particular concern is the defunct National Child Welfare Committee, it is
recommended that adequate human and financial resources should be availed to enable
this committee to play the very fundamental role of implementing and being the coordinating
body for children’s rights.

Although the various NDPs have ensured that the basic developmental needs of children are
addressed, priority has not been given to the implementation of economic, social and
cultural rights, especially those belonging to disadvantaged children. It is particularly noted
with concern that although the HIV/AIDS epidemic has eroded the effects of these same
developments at such an unprecedented rate, the response to ensure that the resultant
negative impact on the rights of children infected and affected by HIV/AIDS is effectively
addressed has been slow and fragmented.

It is accordingly recommended that the evaluation of the current NPA and the formulation of
the successor NPA for the period 2006-2016 be expedited, with particular attention being
paid to the provision of a monitoring and evaluation strategy. The new NPA should cover all
aspects of children’s rights with sufficient budgetary allocations to adequately respond to the
evolving needs of children.

The availability of disaggregated data has been a concern for Botswana in all areas of
development. This is mainly due to the lack of institutional mechanisms for the collection
and analysis of both quantitative and qualitative data. The Central Statistics Office is
currently overwhelmed to the extent that it is still grappling with the compilation of the
disaggregated data from the 2001 Housing and Population census. It is recommended that
technical assistance be sought where necessary from international agencies to
systematically collect and analyse disaggregated data on children below the age of 18 years.

532005, Customary Law, Legislative Reform and the CRC, the Botswana Case Study Unpublished,
UNICEF/BOG.


                                                                                                  41
The Botswana Constitution in its current form is inconsistent with the non-discrimination
provision of the CRC. It fails to mention children as a particularly vulnerable group deserving
special protection measures. Further, despite the provision against discrimination on any
basis whatsoever being part of the constitution reports suggest that societal discrimination
persists against vulnerable groups of children, including children with disabilities, children
born out of wedlock, orphans, children infected and affected by HIV/AIDS, etc. Gender
disparities has rendered the girl child victim to sexual exploitation and violence, they
continue to suffer marginalisation and stereotyping, much to their detriment.

In the last ten years some attempts have been made to amend many of the discriminatory
provisions in the laws of Botswana, however as aforementioned these efforts have been
piecemeal, to say the least, indeed they have added to the already existing confusion.
Consequently, there is an urgent need to amend all existing discriminatory legislation and to
adopt new laws aimed at promoting the equal enjoyment of human rights by all children in
accordance with Section 3 of the CRC.

In order to build a human rights conscious society by 2016 Botswana needs to ensure that
its future adults are conversant with basic human rights standards, this can be done by
incorporating human rights into the school curricula at all levels as well as the systematic
training of all service providers such as teachers, judicial officers, social workers, health
personnel and all others involved in childcare institutions on human rights based approach
to child welfare.

The principle of the best interest of the child although recognised by the judiciary in
adjudicating cases involving child rights, is not fully applied and integrated into the legislative
framework; in particular customary law pays more attention to the views of the adults.
Furthermore there is no consistent definition of the child, the constitution places the age of
majority at 21 years of age, the Children’s Act define a child as anyone below 18 years, and
many other statutes have varying definitions depending on the area of law they regulate.

It is recommended that the review and subsequent amendment of the laws should firmly
entrench the principle of the best interest of the child within the national legislative
framework including the customary law processes. It is further recommended that the
participation of children in all matters affecting them should be promoted according to their
evolving capacities, and this could be done through awareness raising campaigns involving



                                                                                                 42
both children and their parents. And most importantly a uniform definition of the child that is
consistent with the definition in the CRC should be adopted across the board including in
customary law processes.

Botswana laws allow the use of corporal punishment as a form of disciplinary measure at
home, in schools and as a sanction in juvenile detention. This is a concern for many people
and it has been suggested by the UN Committee on the Rights of Children that measures
should be taken in line with Article 28 of the CRC to ensure that positive and non-violent
forms of discipline are adopted both by parents at home and within institutions and which
are to be administered in a manner that respects a child’ human dignity. It is especially
recommended that the use of corporal punishment should be prohibited by law.

Reports on domestic violence, physical and sexual abuse of children have increased rapidly
in the last decade, and it has become apparent that the present legal and policy framework
in not comprehensive enough to provide all children with due protection of the law.

It is recommended that the ongoing review of the Children’s Act must take into consideration
the need for a comprehensive legal and policy framework to help change attitudes towards
children and improve the responsiveness of the legal and institutional mechanism to cases
of violence and neglect of children. Amongst some of the actions to be taken would be,
among others; the establishment of effective child friendly systems within the justice delivery
systems for the reporting and investigation of cases; taking measures to ensure the
rehabilitation of children who are survivors of violence as well as that of the perpetrators
where possible; and running violence prevention workshops to promote awareness within the
communities.

The involvement of both parents in the lives of their children is promoted by the CRC,
however the patriarchal nature of the Botswana society encourages the phenomenon of
‘absentee fathers’ which then places an undue financial burden on the mothers towards the
upbringing of their children, and this is especially true for children born out of wedlock. The
laws available to compel these absentee fathers to adequately support their children have
been found not to be user friendly. It is recommended therefore that a uniform standard that
does not discriminate against children born out of wedlock be adopted to improve the
enforcement of child support by absentee fathers. Legal assistance and/or financial




                                                                                                  43
assistance should be accorded to those in need to initiate legal actions as well as enforce
the court orders.

Many of the law reform processes in Botswana have ignored customary law, thus failing to
realise that customary law as the living law of most Botswana people has a large impact on
the daily lives of Botswana children. Botswana society being patriarchal in nature means that
according to customary practice there is a hierarchy in power relations, with the men
enjoying the most power and the women and children falling under their guardianship. This
inferior position tends to make the girl child particularly prone to sexual exploitation and
violence. However, chiefs are the custodians of customary law and the protectors of their
community members, including children and The Chieftaincy Act54 provides that customary
law must not be injurious to the welfare of the community. This means that there many
positive aspects of customary law which can be reinforced. It is therefore recommended that
by all means possible the present legal reform process should make an inventory of
customary processes which are positive and augment them under the new Children’s Act.

The delivery of basic social services in Botswana is essentially among one of the best in
Africa, however there are no duties enshrined in the legal system to require provision of such
services, thus rendering them unsustainable. Of particular concern are the following; that
primary education although free is not compulsory; the introduction of school fees in 2006
further exacerbates the dropout rates of secondary school children as some parents can ill
afford them. The drop out rates of girls due pregnancies remains high

A standing recommendation has made that legislative action must be taken to make primary
education compulsory and free and to address the dropout rates of girls more activities for
continuation of school before and after giving birth must be provided and those already in
existence strengthened. The involvement of parents in school activities especially at primary
levels must be encouraged and supported in order to combat the problem of children
dropping out of school.

Additionally the quality of education must be monitored and revised periodically to ensure
that more child-centred teaching and learning methods are adopted in line with the evolving
trends in general education. It goes without saying that more resources in the form of trained
personnel and infrastructure must be made available to accommodate the academic needs


54   1987, Laws of Botswana, Chieftaincy Act, No.19, CAP 47:01.


                                                                                               44
of all children; in particular the provision of quality skills training in vocational schools should
be strengthened.

Primary health care is one of Botswana’s success stories; health care centres and mobile
clinics have been provided within walking distance to most settlement areas. However the
strain of HIV/AIDS on the system and the exodus of the nursing staff out of the country is
being felt far and beyond.

The establishment of the National Aids Council (NAC), the National Aids Coordinating Agency
(NACA), the Reviewed National Policy on HIV/AIDS, PMTCT, are all very good and essential
programmes established with the approval of the Botswana President who chairs the NAC.
However concerns are being raised still about the exceedingly high transmission and
prevalence rates of HIV/AIDS, the high maternal and infant mortality rates despite the rollout
of the PMTCT and free ART. Inappropriate traditional practises, stigma and inadequate
knowledge about prevention methods have been, among others, laid to blame for these
problems, but a more profound problem in the form of the non-existence of laws regulating
the response to the HIV epidemic exists, the national policy even in its revised form only
provides guidelines without carrying any legal sanction for non compliance.

Adolescent reproductive health is an area that needs a lot of input from the government,
especially due to the high incidences of teenage pregnancy. Termination of pregnancy
remains a crime in Botswana resulting in many young girls being in trouble with the law due
to illegal procurement of abortions, which also endangers their future reproductive health.
Again the school curricula needs to be revised to include reproductive and sexual health, and
family planning methods must made accessible to young people without the undue
involvement of parents.

The provision of free and universal ART needs to be improved, especially PMTCT. Educational
campaigns on prevention, treatment and care, training of peer educators and professionals
as well as improving the social service care to orphans and people living with HIV/ AIDS are
some of efforts which need to be strengthened. Lastly and as a matter of urgency, action
must be taken to enact a comprehensive law on HIV/ AIDS to regulate all prevention,
treatment and care strategies at national level.

Knowledge about general human rights instruments in Botswana is lacking and the CRC is no
exception. The Ministry of Local Government must undertake a nationwide campaign to


                                                                                                 45
educate the nation, especially members of parliament, cabinet ministers, and service
providers on child rights issues. The initial report together with the recommendations from
the CRC must be translated into the local Setswana and distributed widely to ensure proper
censorship and accountability.

Article 44 of the CRC or periodical and timely reporting must be complied with regularly to
provide the Committee on Children’s Rights with opportunities to examine the progress made
in the implementation of the CRC and to help Botswana catch up with its reporting
obligations it was recommended that the country’s 2nd and 3rd reports should be
consolidated and submitted together in April 15th 2007. It is recommended that efforts
should by now be underway to effect compliance therewith.




                                                                                              46
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                                                                                           47
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                                                                                            48
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                                                                                        49
Annex: 1

About the author
Monica Tabengwa is currently a partner in a private law firm, in Gaborone, Botswana. She
has been Director of a women’s legal aid centre and through her work as a human rights
advocate/activist she was awarded the Hubert Humphrey Fellowship 2001/ 02 which she
served at Rutgers University, New Jersey, USA. She obtained her Bachelor of Laws degree
(LLB) at the University of Botswana in 1995. She has been involved in many human rights
causes and has written and published articles on women and children’s human rights, HIV/
AIDS and human rights.


Contact Details:

Awuah Khan & Partners

PO Box 201013

Gaborone

mtabengwa@yahoo.co.uk




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