Outline
2.1 The inclusion of socio-economic rights in the Constitution
2.2 Specific reference to the right to health in the Constitution
2.3 Specific reference to vulnerable groups in the Constitution
2.4 Gender equality, sexual orientation, gender identity
2.5 Legal and regulatory framework for HIV, Aids and Tuberculosis
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1. Introduction
BONELA is a national network of individuals and organizations that promotes a just and inclusive environment in Botswana, contributing positively to the quality of life for people affected by HIV and AIDS and health issues generally. BONELA employs through advocacy, capacity building of network members, service providers, policy makers and service users as approaches to making health rights a reality in Botswana as well as building a critical mass of human rights defenders at individual, organizations, and policy levels.
BONELA welcomes the Constitutional Review Process and is delighted to note the current efforts to update the fundamental law of the land to align it, hopefully, with the demands of the country’s demographics. It is beyond doubt that a process such as this one, should be inclusive and participatory in nature throughout its life cycle. This will most likely lead to a revised constitution that is responsive to the needs of the citizens.
Over the years, BONELA has been committed to removing legal barriers to the enjoyment of human rights by some of the vulnerable members of the society. While some of the organisation’s efforts have led to positive developments, the country’s constitutional and legal framework has proven to be a contributory factor to the delayed positive change and removal of legal barriers to the enjoyment of human rights by the vulnerable members of the community. This is on account of the inadequacies of the Constitution of the Republic of Botswana.
2. Specific submissions
BONELA makes the following specific recommendations to this Commission, aware of the valiant efforts by the country to address the challenges brought about by the HIV epidemic over the years. BONELA is further aware of the progressive laws, policies and jurisprudence in Botswana that has helped to safeguard the rights of all people to equality and non-discrimination, including people living with HIV and TB and vulnerable populations such as women, members of the LGBTIQ+ community, persons with disabilities and children. However, and as aforementioned, there remains gaps and challenges that have been identified within Botswana’s current constitutional, legal and policy framework where discriminatory and punitive laws, policies and practices create barriers to access to prevention, treatment, care, and support for all people, including vulnerable and key populations.
Drawing from our work and interaction with communities over the years, BONELA makes the following specific recommendations to the Commission:
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In the main, BONELA recommends that Chapter II – which protects the fundamental rights and freedoms of every person in Botswana should be overhauled and aligned with the needs of Batswana and the country’s international law obligations. As aforementioned, the Constitution of Botswana is inadequate in so far as;
2.1 The inclusion of socio-economic rights in the Constitution
Human rights have various categories. A lot has been done to recognise and enforce civil and political rights in Botswana. Our Constitution recognises civil and political rights.1 Furthermore, the High Court is mandated with the duty of enforcing the said civil and political rights in cases where one feels their rights have been infringed.2 However, the same cannot be said for socio-economic rights. Generally, our Constitution does not recognise them. Some African countries such as Ghana, Malawi and Namibia, to some extent, provide for socio-economic rights. South Africa, on the other hand provides for socio-economic rights fully. In fact the South African Constitution has for this reason been termed a model constitution.3
Despite the above, the socio-economic standard of people remains extremely important. It can be asked, ‘what good is the right to life when the person accorded the right has no right to water, food, clothing, housing or medical care?. Socio-economic rights are important and aimed at raising the socio-economic status of people. It is now accepted that the full realisation of civil and political rights without the enjoyment of socio-economic rights is impossible.4 Economic, social and cultural rights are about how people live and work together. They are also the basic necessities of life. They are based on the ideas of equality and guaranteed access to essential socio-economic goods, services, and opportunities.5
Available online at http://ssrn.com/abstract=1320204 (Last accessed on 19 November 2010).
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Socio-economic rights include the following rights:
The only social and/or economic right that our Constitution provides for is the right to form and join trade unions.6 Save for the right to form and join trade unions, the Constitution of the Republic of Botswana does not provide for socio-economic rights. The Constitution entrenches, civil and political rights. As such, socio-economic rights are not given the same protection as civil and political rights under the Constitution.7 The civil and political rights protected by the Constitution are found in Chapter II of the Constitution.8 They include the right to life, the right to personal liberty, the right to protection from slavery and forced labour, the right to protection from inhuman treatment, the right to protection from deprivation of property, the right to protection of privacy and the home, the right to protection of law, the right to freedom of conscience, the right to freedom of expression, the right to freedom of assembly and association, the right to freedom of movement and the right to freedom from discrimination on the grounds of race, etc.
The Court of Appeal has made it clear that the Constitution does not guarantee socio-economic rights,9 and as a result socio-economic rights are not justiciable. The Court of Appeal has also rejected the approach of expansive interpretation of the Constitution, that is interpreting civil and political rights in such a manner that they include socio-economic rights, i.e. interpreting the right to life as encompassing the right to health since one may be unable to have a good quality of life if their right to health is not guaranteed.10
(2010) p. 11.
8Constitution, Sections 3 to 15.
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The case of Sesana and Others v The Attorney General11 has shown us that although the Botswana Government provides many basic socio-economic needs for her citizens such services can, with mere consultation, be terminated at any time and the citizens will have no recourse to the law. Simply put, the citizens are at the mercy of the Government. This position is insufficient because socio-economic rights should not be favours that Governments give to their people but should be entitlements that Governments are duty bound to give to their people
It is submitted that Botswana ought to do one thing; recognise and expressly provide for socio-economic rights in the Constitution and thereby empower the courts to adjudicate on them. By incorporating socio-economic rights into her Constitution Botswana would overcome the challenge of dualism. The current situation where the Constitution and legislation are silent on socio-economic rights and the said rights are only contained in international treaties and conventions that Botswana has not domesticated means that socio-economic rights do not form part of the law of Botswana. Constitutional recognition would mean that socio-economic rights become domesticated in Botswana and thereby overcome the challenge of dualism.
Further, as far as the courts failure to interpret the Constitution expansively is concerned, constitutional recognition would expressly provide for socio-economic rights thereby doing away with the need for expansive interpretation of current civil and political rights in order to protect socio-economic rights.
Lastly, the issue of resource availability in itself cannot be a bar to the protection of socio-economic rights. Botswana is already providing most basic socio-economic needs to its citizens. Therefore, at least for now, resource availability is not a severe problem that should hamper the recognition and enforcement of socio-economic rights. Guaranteeing socio-economic rights in the Constitution will mandate the Government to provide those rights. If ever the Government cannot afford to provide such a right then that would have to be addressed by Parliament at the appropriate time. As Kirby JP stated in Attorney-General and Others v Tapela and Others12:
It is the responsibility of government to budget for the fulfilment of its legal obligations. If the law requires a service to be provided, then funds must be found to provide that service, or Parliament must be engaged to amend that law. Lack of funds will not in the normal course justify disobedience of the law.
Considering the above, BONELA makes the following specific recommendations as regards the inclusion of socio-economic rights in the Constitution:
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2.2 Specific reference to the right to health in the Constitution
“The right to health means that everyone should have access to the health services they need, when and where they need them, without suffering financial hardship.”13 In order for this to be realized, Government must provide the necessary health facilities, among other things.
The Preamble to the Constitution of the World Health Organisation aptly captures the right to health. It states the following:14
The right to health is also recognized in the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 12 of the ICESR provides as follows:
WHO, Huma Rights Day 2017 (https://www.who.int/news-room/commentaries/detail/health-is-a-fundamental-human-right).
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ESCR-Net has correctly noted that, ” The right to health is closely interconnected with numerous other human rights, including the rights to food, water, housing, work, education, life, non-discrimination, privacy, access to information, the prohibition against torture, among others.”15
ESCR-Net further aptly summaries essential aspects of General Comment 14 of the Committee on Economic, Social, and Cultural Rights where the Committee “provided detailed guidance to States regarding their obligations to respect, protect and fulfil the right to health.”16 ESCR-Net notes the following: 17
The Committee also noted that the right includes the following interrelated and essential features:
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The right to health is fundamental. A person’s health is essential for that person to enjoy other rights and to be productive. Hence the health of a country’s population is essential for that country’s productivity. The inclusion of the right to health in the Constitution is therefore not only a matter of protection of individuals but one of securing the nation’s productivity and prosperity. In some instances, it could be a matter of the nation’s and possibly the world’s survival. The Covid-19 Pandemic has taught us several things. One of them is that lack of access to health care is a danger not only to individuals but to nations. The response to the Covid 19 pandemic was one where efforts were made to leave no one behind. That should be the order of the day when it comes to health. No one should be left behind. The first step towards that approach is to constitutionally guarantee the right to health. Given the fundamental nature of healthcare, it ought not be left to the wishes of Government. It should be guaranteed in the Constitution.
Considering the above, BONELA makes the following specific recommendations as regards specific reference to the right to health in the Constitution:
2.3 Specific reference to vulnerable groups in the Constitution
The current Constitution does not make specific reference to vulnerable and key populations. In fact, certain classes of individuals are not provided for under section 15 of the Constitution and have been read into the relevant provisions of the Constitution. Amissah, JP in the Unity Dow case18 said:
I do not think that the framers of the Constitution intended to declare in 1966 that all potentially vulnerable groups or classes who would be affected for all time by discriminatory treatment have been identified and mentioned in the definition in section 15 (3). I do not think that they intended to declare that the categories mentioned in that definition were forever closed. In the nature of things, as far- sighted people trying to look into the future, they would have contemplated that with the passage of time not only the groups or classes which had caused concern at the time of writing the Constitution but other groups or classes needing protection would arise. The categories might grow or change. In that sense, the classes or groups itemised in the definition would be, and in my opinion, are by way of example of what the framers of the Constitution thought worth mentioning as potentially some of the most likely areas of possible discrimination. I am fortified in this view by the fact that other classes or groups with respect to which discrimination would be unjust and inhuman and which,
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therefore, should have been included in the definition were not. A typical example is the disabled. Discrimination wholly or mainly attributable to them as a group as such would, in my view, offend as much against section 15 as discrimination against any group or class.
Most recently, the Court of Appeal in the Letsweletse Motshidiemang v Attorney General & Others19 was able to broadly interpret the provisions of the Constitution toinclude the right to one’s sexual orientation. The Court of Appeal in this case held that the word “sex” in section 3 of the Constitution should be interpreted to include the protection of one’s “sexual orientation.
The approach taken by the Courts in the above cases no doubt illustrates the courts’ commitment to the protection of the rights of the most marginalised members of the community. However, they also illustrate the inadequacies of our Constitution to the extent that it has failed to specifically refer to the protection and promotion of the rights of these groups as is the case in other jurisdictions.20
There is every reason to include and specifically provide for the constitutional protection of the rights of the vulnerable and key populations. The most obvious reason being that it affords their rights better protection due to the constitutional imperative. Consequently, the specific inclusion of vulnerable and key populations in the Constitution guarantees that the Government will enact laws that are aimed at giving effect to and protecting their rights. For example, if there is specific mention of the promotion and protection of the rights of persons with disabilities in the Constitution, it is likely to follow that a disability specific legislation will follow. Such a piece of legislation will thus give effect to the constitutional imperative and will no doubt enhance the promotion and protection of the rights of persons with disabilities. .
Additionally, specific inclusion of vulnerable and key populations in the Constitution will ensure that the most vulnerable are able to assert their rights before the Courts in the event of violation of their rights. In that sense, their rights are not enjoyed at the discretion of the state and are not favours or mere promises that cannot be enforced as against the State.
It is on the basis of the above that we recommend that the Constitution be revised in order to make specific reference, among others in the equality and non-discrimination clauses, to the rights of the following groups:
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Put differently, the Constitution should prohibit, for example, discrimination on the basis of one’s HIV and health status, disability or sexual orientation and gender identity.
The above list is certainly not exhaustive. An inclusive Constitution should thus be reflective of all people who are likely to be subject to multiple layers of discrimination. This is because people can be marginalized due to several factors such as: sexual orientation, gender, geography, ethnicity, religion, displacement, conflict, or disability.
2.4 Sexual Orientation and Gender Identity
There are many people who are affected by issues of sexual orientation and gender identity. Members of the lesbian, gay, bi-sexual, transgender, intersexed and queer (LGBTIQ+) community are largely affected by the challenges presented by the weak constitutional and legal protection of their rights. Studies and observations over the years have shown that discriminatory laws greatly contribute to LGBTIQ+ people facing stigma and discrimination.
There is general lack of appreciation of the fact that members of the LGBTIQ+ community deserve equal protection as evidenced by the low levels of training of law enforcement officers on how to handle cases involving sexual orientation and gender identity. Unfriendly healthcare services and even denial of access to healthcare services are some of the challenges faced by members of the LGBTIQ+ community. Other challenges to the promotion and protection of the rights of members of the LGBTIQ+ community include discriminatory practices, transphobia, homophobia, violence and abuse, difficulties surrounding change of gender markers and identity, and the absence of clear legislative and policy interventions concerning intersexed persons.
Of course, there is anecdotal evidence to suggest that societal attitudes towards issues of sexual orientation and gender identity have changed. Kirby JP in the Motshidiemang case (supra) ably demonstrated the extent to which opinions andviews of the legislature and the executive, through policies and laws enacted by the elected officials, have shifted as regards sexual orientation and gender identity. The decision of the courts regarding the registration of organizations dealing with the
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promotion and protection of the rights of members of the LGBTIQ+ community and the decriminalization of sodomy laws are examples of the country’s move towards inclusivity. In fact, inclusivity was reaffirmed by Kirby JP in the Rammoge case when he pointed out that:
Members of the gay, lesbian and transgender community, although no doubt a small minority, and unacceptable to some on religious or other grounds, form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity. 21
In light of the above, BONELA makes the following specific recommendations as regards the constitutional protection and inclusion of sexual orientation and gender identity issues:
2.5 Other specific recommendations
In addition to the above recommendations, BONELA would also like to bring to the attention of the Commission the following areas in need of reform. These are areas, which have over the years proven to provide challenges to the protection and promotion of human rights in Botswana. They are as follows:
Ensure that the rights to equality and non-discrimination of all persons in Botswana are guaranteed in the context of marriage including by aligning the customary, Muslim, and Hindu and other marriage laws and regulations with rights applicable to civil marriages and in line with the Constitution, and regional and international treaty obligations and standards.
