Human Rights Committee

Concluding observations on the second periodic report of Botswana *

1.The Committee considered the second periodic report of Botswana at its 3815th and 3816th meetings, held on 20 and 21 October 2021. At its 3827th meeting, held on 1 November 2021, the Committee adopted the present concluding observations.

A.Introduction

2.The Committee is grateful to the State party for having accepted the simplified reporting procedure and for submitting its second periodic report in response to the list of issues prior to reporting prepared under that procedure. It expresses appreciation for the opportunity to renew its constructive dialogue with the State party’s high-level delegation on the measures taken during the reporting period to implement the provisions of the Covenant. The Committee thanks the State party for the oral responses provided by the delegation and for the supplementary information provided to it in writing after the dialogue.

B.Positive aspects

3.The Committee welcomes the adoption by the State party of the following legislative and other measures:

(a)The Rome Statute of the International Criminal Court Act, in 2017;

(b)The Anti-Human Trafficking Act, in 2014;

(c)The Married Persons Property Act, in 2014;

(d)The Legal Aid Act, in 2013;

(e)The Employment (Amendment) Act, in 2010;

(f)The national social protection framework, in 2020;

(g)The national action plan to combat trafficking in persons (2017–2018), in 2017;

(h)The National Strategy Towards Ending Gender-based Violence in Botswana (2016–2020) and the National Strategy for Gender and Development, in 2016.

4.The Committee also welcomes the establishment of the National Human Rights Coordinating Committee, in 2020, the accession to the Convention on the Rights of Persons with Disabilities and the passing by Parliament of the revised disability policy, in 2021.

C.Principal matters of concern and recommendations

Applicability of the Covenant in the domestic legal system

5.The Committee notes that the Covenant is not directly applicable in domestic law and, while welcoming the efforts made by the State party to harmonize statutory and customary legislation with the Covenant, it is concerned that there still remain provisions in domestic legislation, particularly customary laws, that are inconsistent with the Covenant.The Committee is also concerned that the State party has not yet ratified the first Optional Protocol to the Covenant (art. 2).

6. Recalling the Committee ’ s previous recommendations , the State party should:

(a) Continue to evaluate and revise statutory and customary legislation to ensure harmonization with the rights guaranteed in the Covenant and ensure that domestic laws are interpreted and applied in conformity with its provisions;

(b) Intensify its efforts to raise awareness about the Covenant, including by widely disseminating the Committee ’ s recommendations and by providing specific training on the Covenant to government officials, prosecutors and judges in the formal and customary courts, as well as lawyers;

(c) Consider ratifying the first Optional Protocol to the Covenant, which establishes an individual complaint mechanism.

Reservations

7.The Committee is concerned that the State party maintains its reservations to articles 7 and 12 of the Covenant. With regard to the reservation to article 7 of the Covenant, it recalls that reservations to the prohibition of torture are incompatible with the objects and purposes of the Covenant (art. 2).

8. Recalling its previous recommendations , the Committee reiterates that the State party should consider withdraw ing its reservation s to article s 7 and 12 o f the Covenant.

National human rights institution

9.The Committee welcomes the Ombudsman Amendment Bill, which was passed by Parliament in 2021 and is currently awaiting the assent of the President, and takes note of the delegation’s statement that the Bill will be enacted into law in due course. However, the Committee is concerned about the lack of information on the process for selecting the Ombudsman and about the fact that the institution only has four offices to cover 16 districts (art. 2).

10. T he State party should take all measures necessary to ensure that the Ombudsman Amendment Bill is enacted into law without delay and that the Office of the Om budsman is fully compliant with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). The State party should provide the Office with sufficient human and financial resources to carry out its mandate in all parts of the country and ensure that it cooperat es with regional and international human rights systems.

Non-discrimination

11.The Committee is concerned about the lack of comprehensive anti-discrimination legislation and about the fact that section 15 (4) (b)–(d) of the Constitution continues to provide for exceptions to the right not to be discriminated against. The Committee is also concerned that the 2019 ruling of the High Court of Botswana in the case Letsweletse Motshediemang v. Attorney General requesting that section 164 of the Penal Code criminalizing same-sex relations be repealed has not been implemented yet due to an ongoing appeal by the Attorney General.The Committee is further concerned about the persistence of customary laws and practices that discriminate against women, particularlyin relation to marriage and family relations, inheritance, property rightsand legal guardianship by men of unmarried women (arts. 2–3, 17 and 26–27).

12. In light of and bearing in mind the Committee ’ s previous recommendations, the State party should:

(a) Adopt comprehensive legislation prohibiting discrimination, including multiple, direct and indirect discrimination, in all spheres, in both the public and the private sectors, on all the grounds prohibited under the Covenant, including sex, sexual orientation, gender identity, religion, disability, socioeconomic status, HIV/AIDS status, ethnic and political affiliation or other status;

(b) Amend section 15 of the Constitution in order to bring it into line with articles 2–3 and 26 of the Covenant;

(c) Repeal section 164 of the Penal Code;

(d) Review customary laws and practices that discriminate against women to ensure their full compliance with