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Judicial CP - August 2007
Mmegi, Gaborone, 29 August 2007
For male eyes only?
By Lekopanye Mooketsi
"You will be given four strokes," the presiding officer pronounces at the end of the hearing of a Customary Court case. If the court clerk is female, she would excuse herself from the room of punishment.
The sorry-looking convict would be ordered to lower his trousers and underpants to receive the lashes on bare buttocks. At a Gaborone Customary Court, the flogging was so serious that blood splashed on the walls. In another incident in Mogoditshane, the convict fainted after two strokes, before he could get the full punishment.
The chief sympathised with him and saved him from further punishment. Previously, corporal punishment used to be administered on the back of male offenders at the Kgotla. But the practice has since been stopped and the punishment is now applied on the buttocks. The women are exempted from flogging. But recently a Molepolole headman grabbed headlines when he sentenced a married woman to corporal punishment. The woman was walloped on her back. The headman later said he exercised his traditional powers. However, the law only allows the flogging of male offenders under 40 years.
Due to the congestions in local prisons, Customary Courts prefer corporal punishment than jail sentences.
But human rights activists and lawyers insist corporal punishment is degrading. Peter Tshukudu, the spokesperson for Botswana Centre for Human Rights-Ditshwanelo said they are totally against corporal punishment. "You can't punish people by beating them. I don't think beating people would change things," he said. He said there is no evidence that corporal punishment has reduced crime substantially. He urged the government to find ways of delivering justice other than exposing offenders to degrading punishment. He said in most cases the offenders who are exposed to corporal punishment are poor people who do not have the means to take the state to task. He argued that the concept of corporal punishment is not in line with the ideals of Vision 2016, which calls for a caring and a compassionate nation.
Lawyer Dick Bayford feels that corporal punishment should be abolished from a human rights points of view. "It is degrading. There is no assurance of its corrective effects especially on the youth. I do not think violence is able to provide the corrective effect," he said. He urged government to explore other alternative means of punishment other than inflicting pain. He said in other societies, restorative justice is encouraged to reconcile the offender with the victim.
He said government should opt for community service for certain offences. Bayford described corporal punishment as a barbaric way of dispensing justice. He said there are people who have been subjected to corporal punishment so many times but they continue to engage in crime.
Deputy Paramount Chief of the Batlokwa, Michael Gaborone says people who are calling for the abolition of corporal punishment do not know what they are talking about. Such people are ashamed of their culture, says Gaborone. Gaborone said corporal punishment has always been part of Setswana culture and there is nothing wrong with it. He said adult Batswana males including MPs have been exposed to corporal punishment at some stage in their lives. "They never died from this punishment," he said.
Gaborone believes that it is only lawyers who might be against corporal punishment because they 'cheat' people. He said petty criminals should not be sent to prison but should be punished through floggings. He asserted if chiefs send people to jail for minor offences, the same human rights activists would make noise. He said administering corporal punishment is the only way to deal with the congestion in local prisons.
He indicated that in some cases, the offenders opt for corporal punishment because they have realised that it is the best way out. Gaborone said criminals reform after corporal punishment. He said the youth have proved ruthless and corporal punishment is the only way to maintain order.
"If you do not want corporal punishment, you should go to the magistrates' court," he said. Gaborone said people like to criticise Customary Courts even though they are dispensing justice quickly and for free.
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