Southern African Litigation Centre & National Association of Women Judges hosted a Judicial Colloquium on the rights of vulnerable groups in Botswana, 28-29 March 2014. Two sessions were held, including a Human Rights Defenders Strategy session.
During the opening remarks, Acting Chief Justice Walia, noted that human rights had never shown discrimination towards any individuals/groups and that they are applicable equally to all and that there are instances where some collectives would need more attention to ensure their human rights.
The discrimination that vulnerable groups are subject to need the protection of the State to avoid harm and in citing the Dow case, the prohibited grounds in which discrimination is listed, is not a closed list, insinuating that it can be added to. Furthermore, Judicial Officers promote remedies that protect rights through recognising inequalities in society.
Further citing a recent Mmusi case, “the court must breathe life into the Constitution”, as the right to Euality is interrelated with those of Dignity and Freedom of Expression.
Justice Dingake gave a keynote address on the role of the Judiciary in protecting the rights of vulnerable groups, it included the following:
– “Law has no finer hour than when it cuts through prejudice, disregards conservative case law to protect rights”
– “Vulnerable groups include women, children, persons with disabilities, sexual minorities”
– The Judiciary cannot protect rights without informed legal profession and it must live by the values stated in the Universal Declaration on Human Rights, which also recognises sexual minorities
– “We must bring sexual minorities into human rights discourse”; citing the National Coalition for Gays and Lesbian Equality case, “harm imposed by criminal law risks persons arrested simply for different sexual preference”
Also citing the Kanane case, the decision to uphold the sodomy law in Botswana was retrogressive, as majority preferences can be harsh and oppressive to minorities. “Equality does not mean uniformity, it recognises divergence even if uncomfortable. Lawyers have a sacred duty to defend unpopular groups and they must remain fearless, smart in crusades in defence of human rights.”
Justice Annah Mathiba from the Botswana Industrial Court presented on the grounds of discrimination in employment law; Botswana Employment Act amended in 2010, prohibited discrimination on grounds of sexual orientation, health and disability. Furthermore, Botswana courts have held that employers cannot discriminate based solely on HIV status or pregnancy.
Migrant workers in dangerous and degrading jobs have less protection as they have no contracts, which are discriminatory practices. This would mean that migrants who reside in Botswana unlawfully cannot be assisted by Botswana courts as their contracts would be illegal. There are different views with regards to proving discrimination, the Industrial Court is identified for such as opposed to the opinion of the International Labour Organisation’s perspective of the employer bearing the burden of proof.
In addition, “persons whose sexual orientation do not follow prevailing patterns, are the target of various forms of violence at work”. Other forms of discrimination in workplace are those against persons with disabilities and young workers. The Act also added political opinion and national extraction as grounds of discrimination. Worth noting, sexual orientation is not included in the Code of Good Practice.
Remedies in Industrial Courts do not act as a deterrent to discrimination and Industrial Court can actually do more to protect rights of undocumented migrants, especially where long term employees are involved. Furthermore, there is no legislation to ensure proper building standards to assist persons with disabilities accessing institutions. Lawyer Uyapo Ndadi noted that police and courts should be equipped to adequately attend to cases involving persons with disabilities. He further stated that there is no access to justice where the person to whom a case relates has a disability which is not accommodated.
Other notable presentations:
Magistrate Mokobi presented on parental rights and substantive equality.
Substantive equality was defined as achieving equitable opportunity & outcomes, by taking into account past discrimination Botswana Children’s Act of 2009 now includes parental rights and responsibilities.
Attorneys Marumo and Bayford presented on the case of Ramantele v Mmusi.
Bayford discussesed the High Court judgment in Mmusi v Ramantele, landmark decision on the rights of women and equated to the Dow case; “Constitutional interpretation considers precedents from comparative jurisdictions, textual interpretation” Dingake J. Dingake looked at Section 3 of the Constitution (equal protection) which excluded women from inheritance, which was unconstitutional.
Marumo noted that the Court of Appeal majority and dissenting judgments were critical of Dingake J in the Mmusi case, but upheld the rights of women. The Court of Appeal had stated that customary law could only exist as so if it upheld constitutional values.
Prof Kenneth Acheampong presented on comparative jurisprudence and the right to dignity.
“Values of respect, ability, enlightenment, skill, health, affection and integrity give flesh to word ‘dignity'”. Attorney Marumo added that customary law must be compatible with law, morality, humanity and natural justice, but in reality, irreversible wrongs would have been committed by the time the court of law rules customary practice as unconstitutional. Unity Dow talked about how important it is to think about the dignity of people in the criminal justice system
Judge Harold Ruhukya spoke on the role of International labour standards in decision making, relating to vulnerable groups.
“It is Important Courts look at international standards irrespective of whether Botswana has ratified the instruments or not. Judicial officers have legal & moral duty to transform laws from being good on paper to be practical in reality.
Judge Lot Moroka whilst presenting on judges’ role in protecting the rights of vulnerable groups in the criminal justice system, noted that vulnerable groups in the criminal justice system have rights that need to be protected and sexual orientation is an area of vulnerability that warrants intervention in the criminal justice system.
See more on @follow_salc’s timeline. A great thanks to them for this and their many other initiatives.