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Judicial CP - August 2004

Corpun file 13807


Mmegi, Gaborone, 3 August 2004

Moatlhodi lands in trouble over figures

By Lekopanye Mooketsi
Staff Writer


TONOTA MP, Pono Moatlhodi, landed in trouble in Parliament when he claimed that there are 56,000 pending cases before the magistrates courts in the country. He found the going tough when other MPs and the Speaker, Ray Molomo grilled him over the source of his statistics. First Moatlhodi claimed that he obtained his figures from Police headquarters. But later, he made an about face and asserted that the figures are for cases pending with the police and not with the magistrate's courts.

Moatlhodi was contributing in support of the Magistrates Courts (Amendment) Bill, which passed its third reading in Parliament yesterday. He said the Bill was long overdue, noting that the Department of Justice should be overhauled.

The MP for Gaborone West, Robert Molefhabangwe said he supported the Bill but was against the clauses that gave the magistrates powers to impose corporal punishment. The MP said he was against corporal punishment, which he described as "barbaric". He added that corporal punishment violated the individual's human rights.

However, Deputy Speaker Bahiti Temane, who was in the chair, took Molefhabangwe to task for using the word "barbaric". But Molefhabangwe replied that there is no other word he could use. The MP for Mahalapye and Minister for Foreign Affairs, Gen Mompati Merafe then wondered which constituents Molefhabangwe was representing. Merafe said people in his own constituency felt that corporal punishment remains effective.


Corpun file 13811, South Africa, 10 August 2004

Zim condemns 'primitive' flogging

Gaborone - Botswana has defended its practice of flogging people who cross its borders illegally, rejecting criticism by neighbouring Zimbabwe that the punishment is primitive.

"We do not discriminate and we are not going to give Zimbabweans any preferential treatment," Botswana's assistant minister for presidential affairs, Oliphant Mfa, said late on Monday.

"If they break the law in our country, they are going to be punished," he said, adding that in his view corporal punishment was not as harsh as a prison sentence.

"Take something like pick-pocketing and petty theft, you don't take someone to prison for such crimes. You give them two or three lashes, and tell them to go home and never repeat that again," he said.

An estimated 125 000 Zimbabweans enter Botswana each month and tensions have risen between the two countries with Botswanans blaming immigrants for an increase in crime.

On Monday, Zimbabwe's state-run Herald newspaper quoted junior national security minister Nicholas Goche as saying that four days of talks with Botswana's home affairs minister had failed to yield an agreement to halt the floggings.

Goche described flogging as "primitive and unruly" and said "Botswana should move with the times" and abolish it.

(AFP) -- Edited by Andrea Botha

Corpun file 13890


Reuters, 10 August 2004

Botswana Proposes More Flogging, Less Jail

GABORONE (Reuters) - Botswana wants to extend the use of corporal punishment so criminals can be beaten instead of going to jail.

The former British colony already uses corporal punishment -- by "strokes" of a cane -- for minor crimes, but its scope will be widened if a Bill published in the Government Gazette becomes law.

The Bill, seen by Reuters on Monday, would allow courts to sentence men under the age of 40 to be flogged instead of serving time in jail for minor offences or non-payment of fines.

Government officials have credited capital and corporal punishment as helping diamond-rich Botswana avoid the high rates of crime that afflict neighboring South Africa.

Copyright Reuters All rights reserved.

Corpun file 13888


BBC News on line, London, 10 August 2004

Botswana defends flogging thieves

Botswana will not stop the practice of flogging Zimbabweans found to have broken the law, said the assistant minister for presidential affairs.

"We do not discriminate and we are not going to give Zimbabweans any preferential treatment," Mr Oliphant Mfa told AFP news agency.

He was responding to criticism from a Zimbabwean minister who described the practice of flogging as "primitive".

Thousands of Zimbabweans cross illegally into Botswana every month.


On Monday Nicholas Goche, Zimbabwe's junior national security minister, said a series of talks at the end of last month with the Botswana government had failed to reach an agreement to stop the floggings.

"The act of flogging law-breakers in public is primitive and unruly for an adult to be humiliated in that fashion," he told the Zimbabwe's state-controlled Herald newspaper.

"We have even stopped flogging our children in schools here in Zimbabwe and feel Botswana should move with the times," he said.

Certain crimes are punishable by corporal punishment in Botswana instead of jail terms.

"Take something like pick-pocketing and petty theft, you don't take someone to prison for such crimes. You give them two or three lashes, and tell them to go home and never repeat that again," said Mr Mfa.

Many Batswana blame a rise in crime on the influx of Zimbabweans fleeing their country's economic crisis.

Botswana will extend the use of corporal punishment if a new bill published in the government gazette becomes law, Reuters news agency reports.


Corpun file 13879


BBC News on line, London, 13 August 2004


Swift justice: Is flogging in Africa out-dated?

Arrested Immigrants
Many Zimbabweans come to Botswana looking for jobs

The government of Botswana has said it will not stop the practice of flogging Zimbabweans found to have broken the law.

Responding to criticism from a Zimbabwean minister who described it as "primitive", Oliphant Mfa, assistant minister of presidential affairs in Botswana, said Zimbabweans are treated the same as Batswana.

Thousands of Zimbabweans cross into Botswana every year in search of work.

Certain crimes like pick-pocketing and petty theft are punishable by corporal punishment in Botswana instead of jail terms. Culprits, according to Mr Ma, are given two or three lashes and told to go home and not do it again.

What do you think of flogging criminals? Is it a barbaric practice that should have no place in the 21st century? Or is it a cheaper, faster and more effective way of dispensing justice? Does your country use corporal punishment? Do you think other categories of criminals should be caned?

The following comments reflect the balance of opinion we have received so far:

Flogging of criminals is a very good act for Africa because it is fastest way of punishment for them.
Safiatu Kargbo, Freetown, Sierra Leone

If you can't afford to send people to prison maybe a good flogging would be effective. Maybe we could start doing that here to shape up some teenage punks.
Jeff Connolly, London Ontario, Canada

As a Zimbabwean living in London I deplore the fact that Zimbabweans are being victimised this way. Having said that, I believe that the efficacy of corporal punishment can only be established by examining statistics on the numbers of repeat offenders. I'd like to see those. My personal thoughts are that I would rather receive the lash than be locked up for weeks or months at a time, further reducing my ability to earn a living away from crime.
Mark, London, UK

Although I do not believe adults should be flogged, I will say that flogging criminals seems to be more humane than the death penalty. Both methods are bad, however, to me the death penalty is more barbaric than flogging someone.
CFO, Delta State, Nigeria

Flogging is the only remaining cheap humane act, and therefore should not be stopped. Imagine how much Botswana will have to spend if they imprison the border jumpers.
Gaolaolwe Ralotsia, Botswana

Flogging adults is just too barbaric and archaic. It is also in contravention of the human rights declaration offenders should be tried in a court of law and sentenced accordingly. It is only a court of law that can impose a sentence to any offender in any country that have a rule of law. There is a risk of flogging innocent people if not tried.
John Chiwawa, Harare, Zimbabwe

It becomes more of a practical situation than a moral issue for the Botswana government. Going against the law does require punishment of different sorts of crime, however, agreeing on flogging is to agree on stoning in India and Pakistan. Both are morally wrong but we must put ourselves in their shoes and realise they are more populated with an incredibly high unemployment rate than north America, Europe or the Middle East. If they were to punish them by throwing them in jail it would become overpopulated and perhaps develop into homes for them rather than a prison.
Amina, Alexandria, Egypt

I think flogging is a better way to enforce punishment for petty crimes rather than sending thieves to jail for 3-30 years. Send murders and rapists and such to jail, not thieves. Humiliating them with a public beating is better i think. That would save our tax dollars.
Tanya, Brooklyn, USA

I see part of the argument is to not "humiliate" people in that fashion. Why do we care if criminals are humiliated? If they did the crime, let them be humiliated! Maybe they will think twice before stealing again. Sorry, no sympathy here.
Jennifer, Harrisburg USA

Some Africa countries and people need to book a date with the shrink, and Botswana is one of those countries. Why wouldn't other countries look down at us as primitive savages. I am appalled and dismay with such stone-aged behaviour on the part of Botswana. You can't have your cake and eat it at the same time. Botswana and other African countries that indulge in such barbaric practice should decide in what age they want to live in. Democracy and basic human rights and primitive barbarity can not co-exist.
Denzel, Liberia/Chile

I think it is a good thing to flog and let go people who commit such minor crimes. It will serve as a warning to those who want to commit such crimes. When westerners compare this form of justice system to their, it seems like cruelty, but most African countries don't have the modern prison complexes these western countries have to house people who pick-pockets.
Vamilar, Brooklyn Park, MN, USA

Flogging does seem terribly barbaric. Maybe we have been babied in the developed world for so long, incarceration, where a criminal is out of sight and out of mind is just more palatable. Or maybe it is just the thought of flogging Africans as it is synonymous with the white's historical repression of the black. I think if they tickled instead of flogged, it would be just as effective. Nobody gets left with physical scars, but a 10 minute tickling can be really painful... and much more palatable to our developed world sensitivities.
Craig Stanton, Toronto, Canada

Flogging managed to turn Singapore from a Colombia-style society to one of the safest places on earth. It is the most effective method of discipline especially when it involves criminals.
Goh Tong, USA

I'm sure you would think twice about doing it again but in the case of the Zimbabweans in Botswana what do they have to lose, I mean they fleeing Zimbabwe in the first place so if they need to steal to feed themselves then you aren't going to stop them no matter how many times you flog them. What right does Zimbabwe have to criticise anyway?
Simon, Bristol, England

When I look at the west am surprised to see people who are openly disrespectful to authority figures as sentences are "friendly" in terms of fines which almost anyone can afford. The cane is feared by almost everyone and should it be introduced so many disrespectful delinquents will be shaped up.
Felo, USA

Outdated according to Western standards? If flogging a criminal works then let it continue. If it does not work then it is up to the African government to control their punishment. Not Western liberals.
Tony, USA

The act of flogging a human being is very barbaric! Even the flogging of animals ought not to be, but it remains the only way to get our messages across to some of them. As humans, we are more advanced mentally, and flogging should not be entertained in any form.
Ekundayo Shittu, Massachusetts, USA

Yes I do agree because the African jails are more than hell and once they flog you its over and you don't do it again.
Ismail Yusufu, South Africa

Flogging is barbaric. So are most crimes. Life is a series of choices, decisions, and consequences. Do the people know what conditions result in flogging? Can they reasonably avoid those conditions? If so, then the people are choosing flogging - assuming they have a fair system of determining guilt.
Quentin Smith, Texas

I would rather they be flogged and let to go rather than be imprisoned. One Zimbabwean to another. Zimbabwe is pretending to be a protector of human rights. Surely prison for shoplifting is a lot worse than flogging.
Kn, Detroit , USA from Zimbabwe

Flogging is acceptable in Botswana and in Africa. Zimbabweans should not complain of this light form of punishment whenever they break laws in Botswana. Let them fight their draconian Mugabe laws and form of governance in Zimbabwe. Flogging psychologically instils embracement such that people are afraid to break the law.
Zumabiko, Cape Town, South Africa

Well, its better than beheading, I see absolutely nothing wrong with it!
Jennifer Ogah, Nigeria

Being a Motswana and having lived under this law since I can remember I do not see flogging as barbaric. It is effective quick form of justice meted out only to men on their buttocks (it use to be the back). I do find the Zimbabwe minister's comments on a sovereign state laws condescending to say the least. If Zimbabweans do not want flogging, they should not come do crime in Botswana. Stay in your lovely unbarbaric country.
Benson Kgaudi, Lobatse, Botswana

If that is the law in Botswana, it should be applied evenly to everybody whether citizen or foreigners from any part of the world within Botswana's boundaries. In short foreigners should respect and obey the law of the country they are visiting.
Wanjiru, Kenya

Flogging is an accepted form of punishment for males under our customary law in Botswana. It is a VERY effective punishment against petty criminals and others involved in practices such as stock theft and inappropriate behaviour e.g. using insulting language. I would like to inform Mark in London that in Setswana culture the flogging of offenders has been in practice since time immemorial and is not a recent invention intended to victimise any particular group of people. In fact in some cases offenders are given the choice of either receiving a few lashes or spending some time locked up. I can assure you that the majority opt for the former.
Bonnie , Gaborone, Botswana

Flogging is not only "primitive," but it is also the after taste of colonialism.
Kuria Burugu, Kenyan in USA

Flogging is not barbaric what is barbaric is sending people to the electric chair, cutting off someone's hands after a crime.
Olukris, London

Corpun file 13874


Mmegi, Gaborone, 16 August 2004


Corporal Punishment is Not the Answer

DITSHWANELO - The Botswana Centre for Human Rights - does not support the use of corporal punishment. It is internationally recognised as a form of torture in the United Nations Convention Against Torture. Even though Botswana ratified the Convention in 2000, it entered reservations on those sections which refer to corporal punishment and the death penalty.

However, the UN Special Rapporteur on Torture has stated that, "corporal punishment is inconsistent with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment".

The Draft Penal Code Amendment Bill 12 of 2004 allows for corporal punishment to be used as an alternative to imprisonment for all imprisonable crimes, except for murder, rape and robbery. This amendment, once made into law, shall apply to all male persons between the ages of 14 and 40 years.

Ditshwanelo recognises that there is an increase in reported crime. It also notes that there is over-crowding, rape, and other forms of abuse in the prisons. Seeking appropriate alternatives to punishment is a partial response to the situation. Identifying and constructively dealing with the causes of social disintegration is the other. Ditshwanelo believes that corporal punishment is neither appropriate nor remedial. It seeks to humiliate and denigrate. It does not seek to ensure that the accused or perpetrator takes personal or moral responsibility for her/his offence. It also denies her/him the opportunity to "make right what s/he has done wrong".

Ways in which this could be done, include community service by the perpetrators as well as by victim-offender, conferencing and counselling, which could include compensation paid to the victim by the offender.

Recent local and international reports of flogging of Zimbabwean citizens tried by Botswana courts have diverted attention away from the central issue of corporal punishment itself. Ditshwanelo remains opposed to the use of corporal punishment in the home, in schools and as judicial measure.

Alternative forms of discipline and punishment, which do not constitute cruel, inhuman or degrading treatment, such as those suggested, should be used.

Ditshwanelo notes the link between crime, poverty and a growing lack of moral guidance and integrity in our society. There is an urgent need to deal with poverty, corruption, and the misuse of position and power.

These are some of the underlying causes of our social disintegration. Poverty and unemployment contribute towards a growth of crime. However, corporal punishment is not a viable solution, as it is a punishment aimed not at reform and encouraging responsibility, but at humiliation and denigration.

In furtherance of the conformity of our laws with constitutional and international standards, in accordance with the Vision 2016 pillar of an Open, Democratic and Accountable Nation, Ditshwanelo urges the government of Botswana, the politicians and the electorate of this country to:

-- seriously consider the implications of the Draft Bill

-- recognise corporal punishment, which is legalised physical assault, as a form of torture

-- institute and support a comprehensive review of the prison system and

-- ratify and ensure implementation of the Optional Protocol to Convention Against Torture, as this will enable the protection of individuals from torture, through direct recourse to the UN.

Copyright 2004 Mmegi/The Reporter. All rights reserved.

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