RATIFY! While Botswana has ratified the Convention on the
Elimination of all forms of Discrimination Against Women (CEDAW) and its
Optional Protocol, Botswana has so far failed to ratify – or even sign – the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (Maputo Protocol).
RESPECT! The Coalition of the Campaign is particularly
concerned about the following continued violations of women’s human rights in
Botswana: application of discriminatory customary laws; access to property;
violence against women; access to decision-making positions; access to
employment and health services; and the persistence of discriminatory
stereotypes and patriarchal attitudes.
SOME POSITIVE DEVELOPMENTS...
The Coalition of the Campaign acknowledges several developments in recent
years aimed at improving respect for women’s rights, including:
- The adoption of the Domestic Violence Act in 2008, which criminalises many
acts of gender-based violence and provides some protection to the
victims.
- The adoption of the Abolition of Marital Power Act in 2007 which abolished
the common law principle of marital power, according to which the husband was
the sole administrator of the family estate, and replaced it with the principle
of equality of the spouses with respect to the joint matrimonial assets.
However, customary and religious marriages are unaffected by these reforms. The
Act also abolished the common law principle of unity of matrimonial residence
and allows women to choose their place of residence.
- The adoption of the Children’s Act 2009 (not yet in force) under which
birth certificates contain the names of both parents.
BUT DISCRIMINATION AND VIOLENCE PERSIST
In Law
Botswana has a dual legal system, under which customary law is applied
alongside common law. While there have been several reforms of discriminatory
provisions under the common law, customary law remains particularly prejudicial
to women’s rights, perpetuating unequal power relations between men and women
and strengthening stereotypes on the role of women in society.
Although the Constitution of Botswana contains a provision on
non-discrimination, under clause 15(4)(c) the prohibition does not apply to:
“adoption, marriage, divorce,burial, devolution of property on death or other
matters of personal law”.
Customary law remains deeply discriminatory against women, in particular in
the areas of family and property law. For example:
Marriage: While the Marriage Act was amended in 2001 to
specify 18 years as the minimum age for marriage for both sexes with parental
consent, many marriages take place under customary law according to which there
is no such limit. The principle of marital power continues to apply to
marriages under customary and religious law. Women are considered legal minors
and require their husband’s consent to buy or sell property and land, apply for
a bank loans, and enter into legally binding contracts. Customary law
authorises polygamy with the consent of the first wife, but it is not a common
practice.
Separation: In case of separation, custody is traditionally
granted to the husband’s family. Mothers have only the right to visit. Although
the Affiliation Proceedings Act of 1999 mitigated discrimination against
children born out of wedlock, allowing women or care-givers to seek maintenance
from the father; under customary law an unmarried mother has no right to
receive such maintenance. The mother’s own father has a duty to support the
child.
Inheritance: A widow has no right to inheritance from her
husband; all property passes to the eldest son. If the husband had no sons, his
eldest daughter can inherit but in such case property is administered by her
male guardian.
In Practice
Violence
Violence against women remains highly prevalent. Although the Domestic
Violence Act 2008 criminalised many forms of violence against women, under
customary law and common rural practices men are perceived to have the right to
“chastise” their wives. The majority of crimes are unreported and those
complaints that are registered are rarely effectively investigated and
prosecuted. In 2009, it was estimated by the United Nations that 3 in 5 women
in Botswana have experienced some form of domestic violence. Botswana has also
recently seen an increase in cases of murder of women by their
partners.
By law, the minimum sentence for rape is ten years, however, the majority of
perpetrators are not prosecuted or convicted. Marital rape is not criminalised.
As a result post exposure prophylaxis (PEP) is not provided to married women
who have been raped by their spouses. The Domestic Violence Act contains other
significant gaps. For example, it empowers police officers to remove survivors
of domestic violence from their residences but does not provide for the
creation of shelters for victims of violence. Botswana currently has one such
shelter, run by a NGO.
Under-representation in political life
While the Southern African Development Community (SADC) Declaration on
Gender and Development includes a commitment to achieving at least 30%
representation of women in political and decision making structures by 2005,
Botswana has failed to take effective measures to increase representation, for
example by introducing a quota system. In 2008, there were only 7 women in the
61 seat National Assembly,
4 women in the 24 member cabinet and 4 women in the 35 seat House of Chiefs
(an advisory upper chamber to the National Assembly). There were 3 female
judges in the 13 seats High Court. In the October 2009 elections, of a total of
117 candidates, only 10 were women and only two were elected to
parliament.
Obstacles to access to education and employment
Whilst some efforts have been made by the government to increase girls’
access to education, girls continue to drop out of education due to pregnancy,
early marriage or to earn money to support their families. Although the law
prohibits sexual harassment, it remains a serious problem both in schools and
in the workplace. Employment legislation has been reformed to remove some
discriminatory provisions (in particular those prohibiting women from working
in mines, industrial and agricultural work at night) and in 2008 women were
authorised to serve in the military. Yet, women mainly occupy junior positions
or are employed in the informal sector and thus have no access to social
security benefits. Although there have been increases in women occupying high
level positions in the private and public sector, they remain under represented
(31% in 2007). Women’s limited access to property and credit also form major
obstacles to the establishment of businesses.
Obstacles to access to health
The very high prevalence of HIV/ AIDS and the practice of unsafe abortions
remain a major problem. The Criminal Code criminalises abortion, unless
pregnancy is a result of rape, defilement, or incest, poses a physical or
mental health risk to the pregnant woman, or if the unborn child would suffer
from or later develop serious physical or mental abnormalities or
disease.
Obstacles to access to justice
Obstacles include a lack of information on women’s rights and the laws
protecting them, social pressure, a culture of silence and legal costs. Law
enforcement agents have not been sufficiently trained on how to deal with cases
of gender-based violence.
Furthermore, there is no specific law implementing CEDAW in national
legislation and enabling its provisions to be invoked before the
courts.
THE COALITION OF THE CAMPAIGN CALLS ON THE AUTHORITIES OF BOTSWANA
TO:
- Reform or repeal all discriminatory statutory laws, in
conformity with CEDAW, including by abolishing article 15(4)(c) of the
Constitution and widely disseminating statutory laws protecting women’s
rights.
- Harmonise civil, religious and customary law, in
conformity with CEDAW and ensure that where conflicts arise between statutory
legal provisions and customary or religious law, the statutory provisions
prevail.
- Strengthen laws and policies to protect women from violence and
support victims, including by criminalising marital rape; establishing
a legal aid system for women victims of violence; ensuring effective
prosecution and punishment of offenders; implementing awareness-raising
programmes for the general population; and establishing shelters for women
victims of violence.
- Increase women’s access to education and employment,
including by addressing socio-economic and cultural factors that impede access
to education; and enforcing legislation on sexual harassment.
- Increase women’s representation in decision-making
positions, in conformity with CEDAW and the SADC Declaration on Gender
and Development, including through the adoption of temporary special measures
such as quotas.
- Ensure women’s access to health services, including by
intensifying efforts to combat HIV/aids; providing PEP to women victims of
rape, including marital rape; and reforming the Penal Code to decriminalise
abortion in all circumstances.
- Eliminate discrimination against women concerning access to
property, including by raising awareness on land and property rights,
especially of rural women, and expanding legal assistance to women wishing to
file claims of discrimination.
- Ensure women’s access to justice, including by adopting
specific law to implement CEDAW into national legislation and enable its
provisions to be invoked before the national courts; implementing training for
all law enforcement personnel; ensuring that women are aware of their rights;
providing access to free legal representation.
- Eliminate discriminatory cultural practices and
stereotypes, including through awareness-raising programmes targeting
women and men, traditional and community leaders and the media.
- Ratify the Maputo Protocol and the SADC Protocol on Gender and
Development.
- Implement all recommendations issued by the CEDAW
Committee, in February 2010.
PRINCIPAL SOURCES
- Focal Points: DITSHWANELO and Emang Basadi
- Shadow report submitted to the CEDAW Committee, Botswana Council of NGOs
(BOCONGO), October 2009
- Inter Parliamentary Union, www.ipu.org
- Wikigender, www.wikigender.org
THE CAMPAIGN FOCAL POINTS IN BOTSWANA
DITSHWANELO - The Botswana Centre for Human
Rights
DITSHWANELO - The Botswana Centre for Human Rights
is an NGO established in 1993. It is the only organisation in Botswana dealing
with the full range of human rights issues. It works towards achieving gender
equality by incorporating it in actions to advocate for legislative changes,
providing information to the public and offering paralegal services.
www.ditshanelo.org.bw
EMANG BASADI
The EMANG BASADI Women’s
Association was established in 1986 to lobby against discriminatory laws. Emang
Basadi seeks to raise awareness on women’s rights through lobby, advocacy and
capacity building and provides legal aid and counselling services for the
empowerment of women.
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