The constitutuional protection against discrimination in Botswana

International and Comparative Law Quarterly

Volumn 53, Issue 1, 2004, Pages 139-170

  Fombad, Charles Manga ^a,b  

^a UNIVERSITY OF YAOUNDÉ I   (Cameroon)

^b UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27844487949     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.1.139     Document Type: Article

References (79)

1. See The Reverse Discrimination Controversy: A Moral and Legal Analysis (New Jersey Rowland and Littlefield 1980) 11–12.
2. See Christopher McCrudden (ed) Anti-Discrimination Law (Aldershot Dartmouth 1991), at xiv.
3. See UNAIDS, Protocol for the Identification of Discrimination against People Living with HIV (Geneva UNAIDS 2002), at 7.
4. See Chandrachud (ed) Pramantha Aiyar. The Law Lexicon (2nd edn Allhabad Wadhwa & Co 1997), at 798.
5. [1992] BLR 119.
6. See McCrudden (ed) BLR xviii–xix.
7. See generally Sandra Fredman, Discrimination Law (Oxford Oxford University Press 2002) 67–68.
8. See generally Barron and Dienes, Constitutional Law (Black Letter Series 1991) 203
9. Ge Devenish, A Commentary on the South African Bill of Rights (Durban Butterworths 1999), at 52.
10. A Commentary on the South African Bill of Rights 70–75.
11. By contrast, both the European Court of Justice in P v S and Cornwall Country Council [1996] ECR I-2143
12. European Court of Human Rights in Salgueiro da Silva v Portugal (unreported: ECHR, 21 Dec 1999) have held that discrimination against transsexuals in the former case and sexual orientation in the second case where included in the prohibition against sex discrimination.
13. See also, Onkemetse Tshosa, ‘The Application of Non-Discrimination in Botswana in the Light of Attorney-General of Botswana v Unity Dow: Judicial Approach and Practice’ 5 International Journal of Discrimination and the Law (2001) 189–202.
14. [1992] BLR, at 146–147.
15. BLR, at 147.
16. (1985) 11 DLR (4th) 641 (SCC), at 649.
17. This has been cited with approval in two South African Supreme Court judgments; De Klerk & Anor v Du Plessis 1994 (6) BCLR 124 (T)
18. Khala v The Minister of Safety and Security 1994 (2) BCLR 89 (W), at 92.
19. Per Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, at 329.
20. [1992] BLR, at 148.
21. [1992] BLR 119, at 154.
22. MISCA 229/2001 (unreported).
23. MISCA, at 14 of the transcript.
24. As regards whether a restriction is justifiable in a democratic society, it has been said that this requires the courts to do a balancing exercise to determine whether the benefits to a democratic society resulting from the specific restriction demonstrably outweigh the detriment caused to a democratic society by the specific restriction. For a restriction to be reasonably justifiable in a democratic society, the restriction itself must be reasonable. From the facts of the case, no reasonable justification was given for the restrictions imposed by the directive. See generally Art 19, The Interpretation of Fundamental Rights Provisions London (1997) at 55.
25. [1996] BLR 710.
26. BLR, at 728.
27. [1995] BLR 178.
28. See generally, DJ Harris, Cases and Materials on International Law (London Sweet & Maxwell 1991) 493–494.
29. See generally DDN Nsereko, Constitutional Law in Botswana (Gaborone Pula Press 2002), at 538.
30. See Section IV.D. below and FB Nyamnjoh, ‘Local Attitudes Towards Citizenship and Foreigners in Botswana: An Appraisal of Recent Press Stories’ (unpublished, Department of Sociology Seminar, 13 Sept 2001).
31. See Ge Devenish, ‘Local Attitudes Towards Citizenship and Foreigners in Botswana: An Appraisal of Recent Press Stories’, at 68.
32. In several US cases, especially Regents of the University of California v Bakke 438 US 265 (1978) the courts have held that even in the absence of specific provisions endorsing affirmative action, programmes implementing such action are compatible with the equal protection clause of the Fourteenth Amendment or statutory anti-discrimination provisions. Even in international law, Art 1(4) of the International Convention for the Elimination of All Forms of Racial Discrimination, 1966 also supports this conclusion.
33. See in particular, United States v Paradise 480 US 149 (1987).
34. See, eg, Art 4 of the Convention on the Elimination of All Forms of Discrimination Against Women, and also Andrew Byrnes, ‘Equality and Discrimination’ in Raymond Wacks (ed) Human Rights in Hong Kong (Oxford Oxford University Press 1992) at 241.
35. See, Nsereko, Human Rights in Hong Kong, at 267.
36. In the US case of Wygant v Jackson Board of Education (1986) 476 US 267, 106 S Ct 1842, a collective agreement was struck down as contrary to the 14th Amendment because it gave preferential protection against layoffs to minority employees. The result was however, to largely to undermine the effects of positive action programmes incorporating under-represented workers: such workers were in the ‘last in’ and therefore inevitably the ‘first out’.
37. For example, in the Namibian case of Kauesa v Minister of Home Office (1994) 3 BCLR 1 (NmH), the High Court in construing the affirmative action provision in the Namibian Constitution observed that this provision does not authorize a violation of another person's dignity.
38. MISCA No 377/99 (unreported).
39. MISCA, at 58 of the transcript.
40. See Report of the Presidential Commission of Inquiry into Sections 77, 78, and 79 of the Constitution. Government Printer, Gaborone (2000), at 9.
41. Report of the Presidential Commission of Inquiry into Sections 77, 78, and 79 of the Constitution, at 94.
42. Report of the Presidential Commission of Inquiry into Sections 77, 78, and 79 of the Constitution, at 95.
43. See, eg, the Concluding Observations of the Committee on the Elimination of Racial Discrimination Report on Botswana, hereinafter referred to as the CERD Report CERD/61/CO/2 of 23 Aug 2002.
44. For a full discussion of discrimination against women in Botswana, See Human Rights Watch/Africa Human Rights Watch Women's Project, Botswana: Second Class Citizens, vol 6 no 7 (1994).
45. See Athaliah Molokomme, ‘Marriage—What Every Woman Wants or Civil Death?, in Women and Law in South Africa (Harare Zimbabwe Publishing House 1987), at 183.
46. See Nsereko Women and Law in South Africa, at 269.
47. See Nsereko, Women and Law in South Africa, who at p 270, gives the example of the Ugandan Constitution, which contains provisions on affirmative action and which are designed to ensure that there must be at least ‘one woman representative for every district’.
48. See generally, US Department of State, Country Reports on Human Rights Practices, 2001, Botswana
49. Botswana Council of Churches, Who Was (T)here First. An Assessment of the Human Rights Situation of the Basarwa, Occasional Paper No 10 (1992).
50. See the Botswana Christian Council, Who Was (T)here First. An Assessment of the Human Rights Situation of the Basarwa, An Assessment of the Human Rights Situation of the Basarwa, which at pp 22–23 reports of cases of Basarwa who came before Customary Courts, were remanded in custody because they could not understand Setswana.
51. See, Supplementary Report for the Committee on the Elimination of Racial Discrimination, submitted by Ditshwanelo—The Botswana Centre for Human Rights, Aug 2002, at 13.
52. See Mmegi/The Reporter, 28 Mar 2003.
53. See, ‘Zimbabwe migrants “flood” neighbour’ .
54. See ‘Botswana: A crisis in the making’ .
55. See generally, Sichone, ‘The Making of Makwerekwere’ 14 SAPEM (2002).
56. See Republic of Botswana, Status of the 2002 National Response to the UNGASS Declaration of Commitment on HIV/AIDS. Government of Botswana Country Report, United Nations General Assembly Special Session on HIV/AIDS, Mar 2003, Gaborone (2003), at 13.
57. See Ditsebe-Mhone, ‘People Living with HIV/AIDS and the Law: Identification of Major Concerns’, in Ditshwanelo, Conference on HIV/AIDS, the Law and Human Rights, 7 Dec 1999, Gaborone Botswana, Ditshwanelo, Gaborone (2002) 29–30.
58. See generally, UNAIDS, Protocol for the Identification of Discrimination Against People Living with HIV, UNAIDS, Geneva (2002), at 6.
59. On the issue of confidentiality, see generally, CM Fombad, ‘The Crisis of Confidentiality in the Control of the HIV/AIDS Pandemic in Botswana’, 170 International Social Science Journal (2001) 643–656.
60. For some examples of this, see Ditsebe-Mhone, International Social Science Journal
61. Justice MB Marumo, ‘The Role of the Judiciary and the Legal Fraternity in Response to the HIV/AIDS Epidemic in Botswana’
62. Justice De Villiers, ‘Employment Law and HIV/AIDS in Botswana’, in BONELA, Report, Seminar on Justice, Reason and Hope in the HIV Epidemic in Botswana, 26 Oct 2002, BONELA, Gaborone (2002) 13–14 and 18–24 respectively.
63. Section 11 of the Public Health Act provides that it is a criminal offence for any person who, while suffering from any communicable disease, wilfully spreads the said disease. Although AIDS is not specifically mentioned, it is a communicable disease. Section 147 of the Penal Code also provides that any person who has been found guilty of having sexual intercourse with a person under the age of 16 years shall be required to undergo an HIV test. If such person tests positive, he shall be sentenced to a minimum period of imprisonment. See also, Justice De Villiers, ‘The Legal and Equitable Protection of Employees Living with HIV/AIDS’, in Ditshwanelo Report, Seminar on Justice, Reason and Hope in the HIV Epidemic in Botswana, at 7.
64. See D Schneider, ‘What Would Happen if Insurance Companies were not Allowed to Underwrite for AIDS?’, in Ditshwanelo, Report, Seminar on Justice, Reason and Hope in the HIV Epidemic in Botswana 11–13.
65. See Ditsebe-Mhone Report, Seminar on Justice, Reason and Hope in the HIV Epidemic in Botswana, at 30.
66. See B Otlhogile, ‘Educating the Disabled in Botswana: Implications for Government’, in Okechukwu Abosi, Clement Didimalang, et al (eds) Issues of Access and Opportunity to Basic Education for Disabled Children in Botswana. Proceedings of the Second National Seminar of Botswana Council for the Disabled (BCD), 25–27 Nov 1998, BCD, Gaborone (1999), at 12.
67. [1992] BLR 119, at 147.
68. See O Abosi, W Sison, and P Nwaogu, ‘Report on Situational Analysis of Some Adults with Disabilities in Botswana’, in SB Kaye (ed) Equal Opportunities for Training and Work: Meeting the Learning Needs of Adults with Disabilities. Proceedings of the Third National Seminar of Botswana Council for the Disabled (BCD), 22–24 Nov 1999, Gaborone, BCD, Gaborone (1999), at 20.
69. See M Overeem, ‘Work-related Training and Employment Opportunities for Disabled Adults’, Equal Opportunities for Training and Work: Meeting the Learning Needs of Adults with Disabilities. Proceedings of the Third National Seminar of Botswana Council for the Disabled, at 38.
70. See, AB Tafa, ‘Right to Sexual Orientation: The Line of the Botswana Government’, in Ditshwanelo, Conference on Human Rights and Democracy, 17–19 Nov 1998, Gaborone, Ditshwanelo, Gaborone (2000) 127–128.
71. See D Boko, ‘The Case for the Decriminalization of Voluntary Homosexual Conduct in Botswana’, in Ditshwanelo, Conference on Human Rights and Democracy, at 129.
72. Conference on Human Rights and Democracy, at 54.
73. See M Olivier, ‘The Reality of being Gay in Botswana’, in Ditshwanelo, Conference on Human Rights and Democracy, at 135.
74. See W Marwizi, ‘Mugabe to Root out Gays’, Zimbabwe Standard, 2 July 2003.
75. See K Botha, ‘Regional Perspective of the Right to Sexual Orientation’, in Ditshwanelo, Conference on Human Rights and Democracy, at 123.
76. See International Lesbian and Gay Association (ILGA) Africa 2000 Report, .
77. See Ge Devenish Report 59–60.
78. Botswana has an ombudsman who could also perform such functions, but his mandate is presently limited to investigating acts of maladministration. See generally, Fombad, ‘The Enhancement of Good Governance in Botswana: A Critical Assessment of the Ombudsman Act, 1995’, 27 Journal of Southern African Studies (2001) 57–77.
79. See further, T Meron (ed), Human Rights in International Law: Legal and Policy Issues (Oxford Clarendon Press 1984).