Last edited: January 2006
Summary and Analysis
Botswana ratified the Convention on the Rights of the Child, by accession, on March 14, 1995.[2],[3] The treaty is not self-executing in Botswana and has not been officially incorporated by legislation into Botswanan law. However, the Botswana courts have held that domestic law should be interpreted in light of the international Conventions, like the CRC.[4] We were unable to find evidence of how the country has implemented Article 12 of the CRC with respect to the child’s right to be heard in child protective proceedings.
Child abuse is a serious issue in Botswana, but is rarely dealt with as a legal matter. Child abuse is widespread, with reported incidences increasing in recent years; yet cases rarely reach the courts.[5] Under the Children’s Act, it is a criminal offense for parents or guardians to neglect, abuse, or exploit their children or allow others to do so.[6] Neglect includes failure to provide adequate food, shelter, or health and care, as well as exposing children to circumstances that are likely to cause mental, psychological or physical distress.[7] However, convictions for criminal abuse and neglect are rare. In 2000, for instance, only 16 cases were convicted.[8]
To be sure, there is evidence that views of children are not irrelevant in Botswanan legal proceedings. Their perspectives are sometimes taken into account by courts in disputes relating to custody determinations when marriages dissolve.[9] The right to communicate ideas is also enshrined in the Botswanan Constitution. Yet, in Setswanan culture, respect for the views of children is not a right. As Botswana states, in its state party report to the United Nations: “There is … a culture of believing that adults know what is best for children and that they are in a position to articulate the views of their children.”[10] The dearth of formally prosecuted child abuse cases, combined with tendency to strongly privilege parental views within the Setswanan culture, suggests that children’s voices play at best a tangential and informal role in legal proceedings related to abuse and neglect.
Sources of Law (In Order of Authority)
Constitution of Botswana
Chapter 2, Section 12. Protection of freedom of expression[11]
(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.
Additional Resources and Links
UNICEF – Botswana
http://www.unicef.org/infobycountry/botswana_contact.html
Amnesty International – Southern Africa
Endnotes
[1] This page is also available as a .pdf Document, and Word Document.
[2] It did so with a reservation that: “The Government of the Republic of Botswana enters a reservation with regard to the provisions of article 1 of the Convention and does not consider itself bound by the same in so far as such may conflict with the Laws and Statutes of Botswana.” Convention on the Rights of the Child, Ratifications and Reservations, Office of the United Nations High Commissioner for Human Rights, http://www.ohchr.org/english/countries/ratification/11.htm.
[3] G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989), available at http://www.ohchr.org/english/law/crc.htm.
[4]Committee on the Rights of the Child, Initial reports of States parties due in 1997: Botswana, ¶41, U.N. Doc. CRC/C/51/Add.9 (Feb. 27, 2004), available here, and also as .pdf Document, and also as Word Document.
[5] Id., at ¶222.
[6] Id., at ¶218.
[7] Id.
[8] Id., at ¶219.
[9] Id., at ¶140.
[10] Id., at ¶135.
[11] Constitution of Botswana, available at http://www.botswanaembassy.org/constitution-of-botswana/