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Judicial CP - January 2010

Corpun file 22028

Botswana Gazette, Gaborone, 27 January 2010

Police Commissioner to hand two flogging dockets to DPP

As Attorney General explains the customary law

By Aubrey Lute

The Commissioner of Police, Mr Thebeyame Tsimako has informed the Attorney General's Office that they are investigating a number of cases that have been reported to Police relating to flogging of persons in the Kgatleng District.

He has told the AG that they are ready to hand over at least two dockets to the Directorate of Public Prosecutions (DPP) to consider whether charges should be laid against the suspects.

The Attorney General, Dr Athaliah Molokomme has said she finds it appropriate, in the light of recent developments in the Kgatleng District, the ensuing public debates on the issue, and following enquiries, to inform the public on the legal position with respect to the administration of corporal punishment in Botswana. Explaining the application of customary law in relation to the general law of the country, Molokomme said "The fundamental law of Botswana is the Constitution; all laws are subordinate to the Constitution and should therefore be consistent with its provisions."

She said the Customary law in Botswana is recognised and applied within certain clearly defined parameters. It is defined as: " relation to any particular tribe or tribal community, the customary law of that tribe or community so far as it is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice". In other words, customary law is recognised subject to its compatibility with the Constitution, any written law and as long as it passes the test of morality, humanity and natural justice.

The AG said customary courts are also recognised by law, and are regulated under the Customary Courts Act, which also imposes certain restrictions on their jurisdiction and procedure, especially in criminal cases.

She cited the Customary Courts Act which provides that a customary court shall administer customary law and the provisions of any written law which the court may be authorized to administer..., and in so doing shall give effect to the provisions of section 10 of the Constitution of Botswana..."

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In addition, she said Section 10 of the Constitution lays down clear rules for the conduct of a fair trial, and provides that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law (except for contempt).

"Most importantly, customary courts are required to follow clearly defined written procedures contained in the Customary Courts (Procedure) Rules for both civil and criminal cases. These are the minimum national standards against which all customary courts in Botswana, without exception, are bound, by law, to operate," said the AG.

Molokomme said Corporal punishment in Botswana is one of the punishments a Court properly constituted may pass after a trial or plea of guilty. She said these punishments are clearly provided for in the law, which also lays down the offences to which they apply, the courts which are competent to apply them and the manner of their execution.

"With respect to corporal punishment, there are certain requirements and restrictions to which this punishment is subjected, which can be found in a number of statutes. These include section 10 of the Constitution, section 28 of the Penal Code, section 305 of the Criminal Procedure and Evidence Act, and section 3 of the Corporal Punishment Regulations (under the Customary Courts Act)."

The AG also explained the main restrictions that apply and the procedures to be followed with respect to the administration of corporal punishment to convicted persons:
i) the punishment shall be carried out in a manner and with a cane of a type which has been provided for in Regulations;
ii) the punishment shall not be administered until a medical officer has certified that the convict is fit for such punishment, and should be administered in the presence of a medical officer or magistrate;
iii) the punishment should be carried out privately in a prison, or a recognized customary court, except for convicts under 18 years whom the court may direct that it be done in some other place by some other person in the presence of his/or her parent/guardian;
iv) the administration of corporal punishment on females, and on males above the age of 40 years as a punishment by a court is prohibited;
v) where lawfully sanctioned, corporal punishment shall be inflicted on the buttocks only and on no other part of the body;
vi) no instrument other than a cane or thupa shall be used, and a sjambok or other type of whip is prohibited;
vii) where a cane is used, protection shall be placed over the kidneys before such punishment is inflicted;
viii) if the convicted person indicates a desire to appeal the sentence, the caning should not be administered pending the appeal;
ix) Corporal punishment at schools is regulated by the Education Act, which lays down written requirements for its use;
x) In addition the Children's Act, which was adopted by Parliament, assented to by the President in 2009 and will commence shortly, contains clear provisions limiting the number of strokes to be administered on convicted children to six strokes. This Act also requires compliance with the provisions of the Penal Code and Criminal Procedure and Evidence Act earlier referred to.

Molokomme said the above general rules restrictions presuppose the existence of a fair trial, a conviction and lawful sentence of corporal punishment. "They apply throughout Botswana and are meant for the protection of everyone; they are minimum standards below which no one can legally act. No person, group or tribe, is exempted from, or above the law."

She said customary law in Botswana is defined subject to consistency with the written law, thus no belief, custom, tribal practice, or customary law is superior to the written law. "In other words, in the few instances where there might be a conflict, the written Law takes precedence."

The AG further said the flogging or caning of people without their consent, outside the foregoing legal framework, is illegal and offenders can be charged with criminal offences for assault and other offences, as well as being sued in civil proceedings.

"I would like to reassure the public that they have the full protection of the law as enunciated above, and should not hesitate to report offenders, or be intimidated from cooperating with the police and other legally sanctioned law enforcement agencies, to ensure compliance with the rule of law," concluded the Attorney General.

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