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Summary: General overview of Botswana's national legal provisions on children's rights, including guidance on how to conduct further research.
National laws on children's rights Status of the CRC in national law International treaties, including the Convention on the Rights of the Child, must be incorporated into national law through further domestic legislation in order to be directly applicable in Botswana's courts. The Convention has not been incorporated into national law, but courts have been willing to interpret legislation in a Convention compatible manner where possible. Where national legislation clearly conflicts with the Convention, domestic legislation will be applied. The courts can and have cited the Convention in their decisions. Constitution: Chapter II of the Constitution of Botswana contains a number of rights provisions that apply regardless of age and a small number of provisions throughout the Constitution make specific reference to the rights of children: Article 5(1)(f): includes detention for the purpose of the education or welfare of a person under the age of 18 within the permissible grounds for deprivation of liberty, provided that it is carried out with the consent of a parent or guardian or in the execution of a court order. Article 11(2): entitles religious institutions to establish and maintain places of education. Article 11(3): provides that except with his or her consent, no one attending a place of education may be required to receive religious instruction or to take part in any religious ceremony or observance that relates to a religion other than his or her own. For persons under the age of 18, this consent must be obtained from the child's guardian. Article 12(2)(b): permits the restriction of freedom of expression if carried out under the authority of a law with the purpose of regulating education institutions in the interests of the person receiving instruction therein. Article 115 and 116: make reference to the rights of children with regards to pension rights Legislation: many of the provisions particularly relevant to children are contained within the Children's Act, but relevant provisions are also contained in a range of Acts and Regulations. Legislation of particular relevance to children includes, but is by no means limited to: The Children's Act (Cap. 28:04) The Penal Code (Cap. 8:01) The Criminal Procedure and Evidence Act (Cap. 8:02) The Adoption of Children Act (Cap. 28:01) The Education Act (Cap. 58:01) The Employment Act (Cap. 47:01) The Public Health Act (Cap 63:01) The Marriage Act (Cap. 29:01) The Births and Deaths Registration Act (Cap. 30:01) The Citizenship Act (Cap 01:01) The Ombudsman Act (Cap. 2:12) The Trade and Liquor Act (Cap. 43_02) The Deserted Wives and Children's Protection Act (Cap. 28:03) The Maintenance Orders Enforcement Act (Cap. 29:04) The Refugees (Recognition and Control) Act (Cap. 25:01) The Interpretation Act (Cap. 1:04) The Education Act (Corporal Punishment) Regulations Legal Research The Botswana e-Laws page maintains a searchable database of national legislation, including the Constitution (http://www.elaws.gov.bw/default.php?UID=602) and the Constitution is available as a printable document through the website of the Centre for Human Rights at the University of Pretoria (http://www1.chr.up.ac.za/undp/domestic/docs/c_Botswana.pdf). The World Law Guide provides access to a selection of national legislation (http://www.lexadin.nl/wlg/legis/nofr/oeur/lxwebot.htm) as does the International Labour Organisation website, NATLEX (http://www.ilo.org/dyn/natlex/natlex_browse.country?p_lang=en&p_country=BWA). In addition, the GlobaLex project at New York University has published a guide to legal research in Botswana (http://www.nyulawglobal.org/Globalex/Botswana1.htm) and the World Legal Information Institute (http://www.worldlii.org/bw/) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/botswana.php) provide access to a selection of legal and governmental resources. Case Law CRC Jurisprudence The High Court of Botswana has cited the Convention on the Rights of the Child, including in relation to child custody and the best interests of the child (http://www.crin.org/Law/instrument.asp?InstID=1469). Case Law Research The South African Legal Information Institute provides access to the decisions of the High Court ((http://www.saflii.org/bw/cases/BWHC/)) and the Court of Appeal (http://www.saflii.org/bw/cases/BWCA/). The Botswana e-Laws page also provides a searchable database of national case law (http://www.elaws.gov.bw/default.php?UID=604). Compliance with the CRC Botswana has not reported to the Committee on the Rights of the Child since 2004, but at the time of that review, the Committee noted the comprehensive review of the Children's Act, but expressed concern at the slow progress of reform. The Committee also expressed concern that the Convention on the Rights of the Child had not been incorporated into domestic legislation and so could not be invoked before national courts. Since this review, the Convention has been cited in domestic courts, but is yet to be incorporated into the national legal system. The Committee also raised the issue of customary laws and traditions that did not fully reflect the provisions of the Convention. In depth analysis Among the more specific concerns raised during the Committee's Concluding Observations, was the State's failure to implement the general principles of the Convention into domestic law, particularly non-discrimination and the best interests of the child. In particular, the Committee expressed concern that the Constitution of Botswana contained a definition of discrimination that was inconsistent with the Convention; that the best interests of the child had not been integrated within the State's legislation generally, and that provisions on parental custody after divorce did not treat the best interests of the child as a primary consideration. Several of the Committee's recommendations also related to violence against children. In particular, the Committee highlighted the lack of a comprehensive legal and policy framework on child abuse and urged the State to adopt legal measures, including a reporting system for cases of abuse, and to investigate, prosecute and punish cases of abuse. The Committee also urged the State to amend its laws on corporal punishment to expressly prohibit physical punishment in all settings. While recognising efforts made by the State to reform the justice system the Committee nonetheless expressed concern that the juvenile justice system was not compatible with the Convention. The Committee urged the State to raise the low minimum age of criminal responsibility (8 years), to ensure that detained children are always separated from adults and that that deprivation of liberty is only used a s measure of last resort for the shorted appropriate time. Current legal reform projects Please contact CRIN if you are aware of any current legal reform projects.