The Batswana, a term inclusively used to denote all citizens of Botswana, also refers to the country's major ethnic group (the "Tswana" in South Africa), which came into the area from South Africa during the Zulu wars of the early 1880s. Prior to European contact, the Batswana lived as herders and farmers under tribal rule. In the late 19th century, hostilities broke out between the Batswana and Boer settlers from the Transvaal. After appeals by the Batswana for assistance, the British Government in 1885 put "Bechuanaland" under its protection. The northern territory remained under direct administration and is today's Botswana, while the southern territory became part of the Cape Colony and is now part of the northwest province of South Africa; the majority of Setswana-speaking people today live in South Africa. In March 1885. Botswana was declared a British Protectorate by Royal Decree. Extensive territories belonging to Botswana's southern chiefdoms were incorporated into the then British colony of South Africa under the name of British Bechuanaland. At first most Batswana chiefs except Khama III of the Ngwato who had asked for British protection in 1870, resisted and were suspicious of British protection. During the colonial period various attempts were made to incorporate Botswana into Rhode's colony of Southern Rhodesia in 1895. and later into the Union of South Africa. The attempt by the Union of South Africa to annex Botswana was a more serious threat to the protectorate until self-government in 1965. The 1908 Act of Union which created the Union of South Africa had a provision that the Union should grow by incorporating other territories like Botswana, Lesotho, and Swaziland. The British were willing to hand over these territories now that the situation had changed from what it was in 1885. However, the provision for incorporation stated that this could only be done with the consent of the peoples of the then High Commission Territories i.e. Botswana, Lesotho and Swaziland. Many South African Prime Ministers, from Hertzog to Verwoerd agitated for incorporation. Even on the eve of independence European settler communities in Tati, Tuli Block and Ghanzi asked to be ceded to South Africa. Botswana chiefs and later the nationalist leaders vehemently opposed the idea of incorporation. There is enough historical evidence dating back to the introduction of the Bechuanaland Border Police between 1890 and 1891 that Batswana were dissatisfied with British protection. Batswana Chiefs had always wanted to protect their power from the colonial government even though the logic of colonial rule dictated that they should rule according to the whims and wishes of the British government. This conflict was in many respects the root of the struggle for independence. As more and more proclamations were made curtailing the powers of chiefs, they in turn became very outspoken in asserting their birthright to rule their tribes and manage their affairs. Despite South African pressure, inhabitants of the Bechuanaland Protectorate, Basutoland (now Lesotho), and Swaziland in 1909 asked for and received British assurances that they would not be included in the proposed Union of South Africa. An expansion of British central authority and the evolution of tribal government resulted in the 1920 establishment of two advisory councils representing Africans and Europeans. In 1930. chiefs began demands for not only national symbols like flags but also self-government. The matter became a subject of hot debates in the chambers of the African Advisory Council. Proclamations in 1934 regularized tribal rule and powers. The British government rejected demands for self-government claiming that the Protectorate was not yet ready for independence. In a heated debate on the issue Kgosi Bathoen II asked the Resident Commissioner, "who will say the time is now ripe and who is it that will determine that we are now capable of ruling this country?" Signs of contemporary nationalism in Botswana go beyond politics. The formation of independent churches and schools in the 1940s was an articulate demand for a new political and social system tailored according to the needs of Batswana. A European-African advisory council was formed in 1951. Fortunately by 1955 the "winds of change" were blowing at gale proportions in Africa and it became apparent that Britain would concede to demands for national independence. In 1961 a new constitution provided for an advisory executive Council, a representative Legislative Council and an Advisory African Council. A judiciary with a High Court comprising of Chief Justice and Puisne Judge was established. The High Commissioner and Resident Commissioner were required to consult the Executive Council although they were not bound by the Council's decisions. Laws were made by the High Commissioner acting on the advice and consent of the Legislative Council. The Resident Commissioner however reserved the right to enact or enforce any Bill or motion not passed by the Legislative Council if he considered it necessary in the interests of public order, public faith or good government. The African Council was to act as an electoral college, electing local candidates to the Legislative Council and advising the Resident Commissioner on matters affecting the tribes of Botswana. There was however considerable disappointment about the 1961 constitution. Of the 34 members of the Legislative Council only 10 were Batswana and another 10 elected members of the European community. It was surprising that Europeans, comprising less than 1 per cent of the population should be represented on an equal basis with the 99 per cent African majority. In June 1964, Britain accepted proposals for democratic self-government in Botswana. The seat of government was moved from Mafikeng, in South Africa, to newly established Gaborone in 1965. The 1965 constitution led to the first general elections and to independence in September 1966. Seretse Khama, a leader in the independence movement and the legitimate claimant to traditional rule of the Batswana, was elected as the first president, re-elected twice, and died in office in 1980. The presidency passed to the sitting vice president, Ketumile Masire, who was elected in his own right in 1984 and re-elected in 1989 and 1994.
INCIDENCE AND TRENDS IN CRIME
The crime rate in Botswana is moderate compared to industrialized countries. An analysis was done using INTERPOL data for Botswana. For purpose of comparison, data were drawn for the seven offenses used to compute the United States FBI's index of crime. Index offenses include murder, forcible rape, robbery, aggravated assault, burglary, larceny, and motor vehicle theft. The combined total of these offenses constitutes the Index used for trend calculation purposes. Botswana will be compared with Japan (country with a low crime rate) and USA (country with a high crime rate). According to the INTERPOL data, for murder, the rate in 1996 was 12.87 per 100,000 population for Botswana, 1.10 for Japan, and 5.61 for USA. For rape, the rate in 1996 was 68.46 for Botswana, compared with 1.78 for Japan and 31.77 for USA. For robbery, the rate in 1996 was 72.88 for Botswana, 4.08 for Japan, and 148.50 for USA. For aggravated assault, the rate in 1996 was 369.30 for Botswana, 23.78 for Japan, and 318.55 for USA. For burglary, the rate in 1996 was 7.65 for Botswana, 233.60 for Japan, and 740.80 for USA. The rate of larceny for 1996 was 695.51 for Botswana, 1401.26 for Japan, and 2484.64 for USA. The rate for motor vehicle theft in 1996 was 111.87 for Botswana, compared with 44.28 for Japan and 430.64 for USA. The rate for all index offenses combined was 1,338.54 for Botswana, compared with 1709.88 for Japan and 4160.51 for USA. (Note that Japan data are for year 2000 and United States are for 2001)
TRENDS IN CRIME
Between 1995 and 1996, according to INTERPOL data, the rate of murder decreased from 15.55 to 12.87 per 100,000 population, a decrease of 17.2%. The rate for rape increased from 67.85 to 68.46, an increase of 0.9%. The rate of robbery decreased from 73.25 to 72.88, a decrease of 0.5%. The rate for aggravated assault decreased from 416.15 to 369.30, a decrease of 11.3%. The rate for burglary decreased from 8.93 to 7.65, a decrease of 14.3%. The rate of larceny decreased from 872.00 to 695.51, a decrease of 20.2%. The rate of motor vehicle theft increased from 59.05 to 111.87 and increase of 89.4%. The rate of total index offenses decreased from 1512.78 to 1338.54, a decrease of 11.5%.
Botswana has a dual legal system, combining Roman Dutch law with customary law. The development of the law can be traced back to the time of the Protectorate in 1885 when The High Commissioner was empowered to provide for Administration of Justice. Judicial functions were discharged by Administrative Officers with the supervision of the High Commissioner. Though the country was declared a protectorate in 1885, it was not until 1891 that it received the Roman Dutch legal system. By Section 2 of a 1909 proclamation, the common law of the Cape of Good Hope became the law of Bechuanaland. This law did not have a general application, but was only intended for the Europeans. In issuing the proclamation, the High Commissioner was enjoined to respect native or customary law, such that only such law would be applied to natives. It wasn't until 1943 that customary law became regulated, and customary law is still the law applicable to tribesmen, i.e. members of a tribe or tribal community in Botswana.
The civilian Government exercises effective control over the security forces. The military, the Botswana Defense Force (BDF), is responsible for external security only, although it does assist with antipoaching activities along the country's borders. The Botswana National Police (BNP) are responsible for internal security. Section 6 of the Botswana Police Act states that the police "Force shall be employed in and throughout the country to protect life and property, prevent and detect crime, repress internal disturbances, maintain security and public tranquility, apprehend offenders, bring offenders to justice, duly enforce all written laws with which it is directly charged and generally maintain peace." For the performance of their duties under this act, Police officers may carry arms. The police also perform such military duties within Botswana as may be required under the authority of the President as Commander-in-Chief of the armed forces. The Police Department is divided into three divisions, namely North, South Central and South. The divisions are headed by Divisional Commander. The Police services are divided into eight branches, namely General Duties, Criminal Investigation Department, Special Support Group, Special Branch, Traffic, Telecommunications and Transport, Police College and Departmental Management. Members of the security forces, in particular the police, occasionally commit human rights abuses. There have been reports that police sometimes beat persons and used intimidation techniques in order to obtain evidence or elicit confessions. However, in general beatings and other forms of extreme physical abuse are rare. In some cases, the authorities take disciplinary or judicial action against persons responsible for abuses. While coerced confessions are inadmissible in court, evidence gathered through coercion or abuse may be used in prosecution.
The Constitution prohibits arbitrary arrest and detention, and the Government generally respects these prohibitions. Suspects must be informed of their legal rights upon arrest, including the right to remain silent, to be allowed to contact a person of their choice, and generally to be charged before a magistrate within 48 hours. A magistrate may order a suspect held for 14 days through a writ of detention, which may be renewed every 14 days. Most citizens charged with noncapital offenses are released on their own recognizance; some are released with minimal bail. Detention without bail is highly unusual, except in murder cases, where it is mandated. Detainees have the right to hire attorneys of their choice, but in practice most are unable to afford legal counsel. However, poor police training and poor communications in rural villages make it difficult for detainees to obtain legal assistance, and authorities do not always follow judicial safeguards. The Government does not provide counsel for the indigent, except in capital cases. The Botswana Center for Human Rights (BCHR) provides free legal services, but its capacity is limited. Another NGO, the University of Botswana Legal Assistance Center, provides free legal services in civil, but not criminal, matters. Constitutional protections are not applied to illegal immigrants, although the constitutionality of denying them due process has not been tested in court. Pretrial detention has been prolonged in a large number of cases. In Gaborone Central Prison, the average wait in prison before trial is one year. The Government attempted to alleviate the backlog of cases by temporarily hiring more judges and held a referendum in November 2000 in which the voters authorized amending the Constitution to raise the retirement age of judges from 65 to 70; however, several magistrates resigned during the year. The Government sometimes held newly arrived refugees and asylum seekers in local jails until they could be interviewed by the Botswana Council for Refugees (BCR) or the U.N. High Commissioner for Refugees (UNHCR). Once persons were granted refugee status, the Government transferred them to the Dukwe Refugee Camp. By year's end, the Government's construction of an internment center for illegal immigrants almost was completed; the center is expected to house up to 504 immigrants awaiting repatriation. However, even with the completion of this new facility, refugees still may be housed first in local jails and then in Dukwe. The Government detained five new refugees from Namibia's Caprivi Strip, deemed fugitives by the UNHCR, in protective custody at Mahalapye Prison; they were transferred from Dukwe after they committed criminal offenses while at the camp, despite a request from the Namibian Government that the five be repatriated.
The Constitution provides for an independent judiciary, and the Government generally respects this provision in practice. To ensure the independence of the judiciary, the constitution created the Judicial Service Commission. Thus, Judges, Registrars of the High Court, the Court of Appeal, and Magistrates are appointed by the President on the advice of the Judicial Service Commission. The judiciary consists of both a civil court (including Magistrates' Courts, a High Court, and a Court of Appeal) and a customary (traditional) court system. The Court of Appeal is a superior court of record, with jurisdiction in respect to criminal and civil cases from the High Court. Judges of the court include the President of the Court of Appeal; The Chief Justice; and Puisne Judges of the High Court. The number of justices of Appeal is prescribed by parliament. The President of the Court of Appeal is appointed by the State President, while the Justices of Appeal are appointed by the President acting in accordance with the advice of the Judicial Service Commission. The Court of Appeal is broadbased, with judges drawn from the commonwealth countries, e.g. South africa, Nigeria, United Kingdom, and Ghana. The court has two sessions in a year, in January and in July. The court is administered by the Registrar and Master. The High Court is headed by the Chief Justice is appointed by the President of the country. Some of the members of this court are Puisne Judges. These judges too are appointed by the President in accordance with the advice of the Judicial Service Commission. This court supervises proceedings of the Magistrate Courts. Proceedings of the court are held in public and are in English. All appeals from final judgments of subordinate courts and from the customary Court of Appeal lie with the High Court. This court has unlimited jurisdiction both in criminal and civil cases and is also a superior court of record. Subordinate Courts are Magistrates Courts, governed by the Magistrates court Act Chapter 04:04. Magistrates vary in their grades and powers. There are five grades of Magistrate - Chief Magistrate, Principal Magistrate, Senior Magistrate, Magistrate Grade I and Magistrate II. All of these courts have original jurisdiction to try all offenses except capital punishable offenses like murder, treason, sedition or attempts to commit those offenses. To ensure their independence, magistrates, as well as higher court justices, are given protection from civil actions for any act done, or ordered to be done by them in the discharge of their judicial functions. The law provides for the right to a fair trial; however, the civil courts remained unable to provide for timely, fair trials in many cases due to severe staffing shortages and a backlog of pending cases. Most trials in the regular courts are public, although trials under the National Security Act (NSA) may be held in secret. Those charged with noncapital crimes are tried without legal representation if they cannot afford an attorney. As a result, many defendants may not be informed of their rights in pretrial or trial proceedings. Most citizens encounter the legal system through the customary courts, under the authority of a traditional leader. These courts handle minor offenses involving land, marital, and property disputes. In customary courts, the defendant does not have legal counsel, and there are no precise rules of evidence. Tribal judges, appointed by the tribal leader or elected by the community, determine sentences, which may be appealed through the civil court system. The quality of decisions reached in the traditional courts varies considerably. Customary Courts continued to impose corporal punishment sentences in the form of lashings on the buttocks, generally against young offenders in villages for crimes such as vandalism, theft, and hooliganism. In communities where chiefs and their decisions are respected, plaintiffs tend to take their cases to the customary court; otherwise, persons seek justice in the civil courts.
The 23 prisons across the country have a capacity of more than 4,000 inmates but held 6,042 at year's end. To alleviate overcrowding, the Government constructed two new prisons. Both prisons were completed in October 2000; however, one is not expected to open until April 2002. Construction of a third prison for male juvenile offenders was delayed due to lack of funds, but is scheduled to begin in 2002. In 2000 Parliament passed a bill that gave the Prison Commissioner authority to release terminally ill prisoners and prisoners in the last 12 months of their sentences (under previous law, the Commissioner only could grant an early release to prisoners in the last 6 months of their sentences). The bill also granted the Commissioner authority to allow citizen prisoners with sentences of 12 months or less to perform "extramural" labor. Foreign prisoners are required to serve out their entire sentences. By year's end, the Government had released more than 400 prisoners under the program. The Commissioner of Prisons ordered full investigations into the management and conditions of prisons covered in the 1999 Gaborone Prison Visiting Committee (GPVC) report. A 2000 report by the Botswana Prisons Service to the Commissioner reportedly denied responsibility for the conditions; however, the report still had not been released publicly by year's end. The GPVC report cited the suspicious deaths in prison of two inmates in 1999. The Commissioner stated that a post-mortem examination conducted by medical authorities in 1999 supported prison officials' statements that Boitumelo Nthoiwa died of pneumonia and Andrew Molefe died after taking an illegal substance smuggled in by another inmate. Local human rights organizations have not challenged the Government's explanation in either case. The Prisons Act, which covers both prison officials and prisoners, makes it illegal for prison officials to mistreat prisoners. When there is an allegation or suspicion of mishandling of prisoners by prison officials, the Department of Prisons is required to forward the case to the police for investigation. In 2000 the Minister of Presidential Affairs and Public Administration stated that stiff penalties would be imposed on prison officials who treat inmates improperly. Three prison officials appeared before a magistrate in 2000 for alleged abuse of prisoners in previous years. In March the magistrate acquitted two of the officials; the magistrate previously had discharged the third official. The Prisons Act provides for a governmental visiting committee for each prison, the members of which are appointed by the Minister of Labor and Home Affairs. Members of these committees serve 1-year terms and must visit their prison four times within their first term and issue a report both to the Commissioner of Prisons and the Minister of Labor and Home Affairs. These reports normally are not released to the public. During the year and in 2000, the committees visited each prison every three months. The committees issued a report in December 2000, and are expected to issue another report in early 2002. While the Prisons Act grants relatives, lawyers, magistrates, and church organizations the right to visit prisoners for "rehabilitative purposes," the Commissioner of Prisons has the authority to decide whether domestic and international human rights organizations may visit. In practice the Commissioner generally does not allow such visitations; however, some local human rights organizations have been granted access to visit specific prisoners. During the year, the BCHR was permitted to make selected prison visitations to Mariette Bosch, a South African woman sentenced to death for the murder of Mary Wolmarans, the wife of the man Bosch later married. The BCHR, as well as family members, were denied access to Bosch shortly before her execution, since the law does not allow contact with a prisoner within 48 hours of his or her execution. Neither her family nor the BCHR were informed of Bosch's execution until after it occurred. The secrecy surrounding Bosch's execution led to a government-owned Botswana Television documentary, but the Director of Information and Broadcasting prevented its broadcast.
Domestic violence against women remains a serious problem. Under customary law and in common rural practice, men have the right to "chastise" their wives. Women in Botswana do not have the same civil rights as men. A women married in "common property" is held to be a legal minor, requiring her husband's consent to buy or sell property, apply for credit, and enter into legally binding contracts. Police rarely are called to intervene in cases of domestic violence. Reports of sexual exploitation, abuse, and criminal sexual assault are increasing, and public awareness of the problem generally is growing. The national police force has begun training officers in handling domestic violence problems to make them more responsive in such cases. Although the Government has become far tougher in dealing with criminal sexual assault, societal attitudes toward other forms of domestic violence remain lenient. Half the murders of women were linked to histories of domestic violence. Human rights activists estimate that 6 women in 10 are victims of domestic violence at some time in their lives. Rape is another serious problem, and the Government acknowledged in 1999 that, given the high incidence of HIV/AIDS, sexual assault has become an even more serious offense. By law the minimum sentence for rape is 10 years, with the minimum increasing to 15 years with corporal punishment if the offender is HIV-positive, and to 20 years with corporal punishment if the offender knew of his or her HIV status. In 1999 a High Court ruled unconstitutional a provision in the law that allowed the detention of rape suspects without bail. The law does not address the issue of marital rape. A 1999 study of rape by the police service urged police to develop improved methods of rape investigation, including the use of DNA tests in all rape cases. The police force purchased new equipment, and officers were trained to use it during the year. Women's groups acknowledged an improvement in the treatment of alleged victims by police officials during rape investigations; however, they noted that police still lack basic investigative knowledge of rape cases. Sexual exploitation and harassment continue to be problems as well, with men in positions of authority, including teachers, supervisors, and older male relatives, pressuring women and girls to provide sexual favors. Greater public awareness and improved legal protection have led more victims of domestic violence and sexual assault to report incidents to the authorities. In 1999 the Women's Affairs Department submitted the Report on the Study of Socio-Economic Implications of Violence Against Women in Botswana to the Attorney General's office, which is working with other ministries to further study these problems. In May 2000 the Department held a national workshop on violence toward women and issued another report on using an integrated approach among all interested parties to gender-based violence.
It was estimated in 2000 that 38.5 percent of adults between the ages of 15 and 49 are infected with HIV/AIDS, and due largely to deaths from HIV/AIDS, 78,000 orphans were reported by UNICEF. Increasing numbers of children, mostly believed to be orphans, were observed begging or engaging in prostitution in urban areas. Relatives denied orphans infected with HIV/AIDS their inheritance rights. There is no societal pattern of abuse against children, although incest and other forms of child abuse have received increased attention from the media and from local human rights groups. The problem of sexual harassment of students by teachers is a national concern. Reports of rape and sexual assault of young women, and cases of incest and "defilement" of young girls appear with greater frequency in the news. The age of sexual consent is 16. Child prostitution and pornography are criminal offenses, and the law stipulates a 10-year minimum sentence for "defilement" of persons under 16 years of age. Intergenerational sex (sexual relations between older men and girls) and the problems of teenage pregnancy caused by older men received extensive media attention during the year 2000.
The Basarwa (also known as San), who now inhabit chiefly the Kalihari Desert, are the earliest known inhabitants of the country and were the only inhabitants until Bantu groups arrived during the 16th century. They are physically, linguistically, and culturally distinct from the rest of the population. They remain economically and politically marginalized; they have lost access to their traditional land in fertile regions of the country and are vulnerable to exploitation by their non-Basarwa neighbors. Their isolation, ignorance of civil rights, and lack of political representation have stymied their progress. The estimated 52,000 to 55,000 Basarwa persons represent approximately 3 percent of the country's total population. Although the Baswara traditionally were hunter-gatherers, most Basarwa now are employed as agricultural workers on farms or at cattle posts belonging to other ethnic groups. The formation of the 20,000 square mile Central Kalahari Game Reserve (CKGR) by the colonial government in 1961 on traditional Basarwa lands set the stage for conflict between the Basarwa's pursuit of their traditional way of life and wildlife conservation. The Government in the past followed a policy of prohibiting human habitation in the CKGR with the goal of wildlife preservation, but it has made accommodation for the estimated 1,000 to 3,000 Basarwa who still pursue hunting and gathering there. The Government has provided very limited social services within the CKGR and has encouraged those living there to leave the reserve for permanent settlements; there were some reports that the Government sometimes forced Baswara to leave the reserve.
Contributed by Lorena D. Jackson