|www.corpun.com : Archive : 2004 : BW Judicial Dec 2004|
Judicial CP - December 2004
Botswana Daily News Online, 6 December 2004
Penal Code (Amendment) Bill discriminatory - MPs
PARLIAMENT Some legislators were at pains, Friday, to understand the rationale behind the meting out of corporal punishment to male criminals who are aged less than 40.
Others wondered why the punishment is only targeting males while there are world-wide calls to deal away with gender disparities in many laws.
Their sentiments emanated from a Penal Code (Amendment) Bill, which was presented for second reading in Parliament by the Minister for Presidential Affairs and Public Administration, Phandu Skelemani.
The Bill proposes that corporal punishment be imposed for a wider range of offences upon male criminals under 40 years of age, and that corporal punishment be permitted in default of payment of fines.
It also provides for the imposition of a lesser and appropriate penalty on a person convicted of an offence even where there are mandatory long terms of imprisonment. If there are exceptional extenuating circumstances, which would render the minimum penalty totally inappropriate.
In addition the Bill seeks to increase the sum of monetary fines in default of payment of which a person would be liable to imprisonment, and also increases the corresponding terms of imprisonment to be served in the event of such default.
Factors such as chronic overcrowding in prisons has [sic] led to the amendment of the Penal Code since the present capacity of Botswana's prisons is 3,876 but the number of inmates, including all categories of prisoners stood at 6,180 on April 2004, an occupation rate of almost 160 percent.
MP for Gaborone West South, Robert Molefhabangwe, expressed misgivings against the government's intention to amend the Penal Code "as it is not gender neutral hence discriminatory".
He said since the law had proposed that corporal punishment be imposed upon male criminals less than 40 years age, that renders it discriminatory both gender and age wise as it exclude women.
Molefhabangwe said government should have instituted some solutions on how to curb the rate of crime rather than proposing to impose corporal punishment for a wider range of offences, something, which he termed as 'advent'.
To drive his point home, Molefhabangwe pointed out that even though Batswana welcome this motion to amend the Penal Code, they should understand that the "law is just a piece of paper written in black and white advocating against discrimination while in actual practice it does." He said whites have always been the most protected.
This prompted Skelemani to interject and clarify that there is no such law, which provides that any punishment would be meted to people of a certain colour.
Skelemani further clarified that the bill did not advocate that through corporal punishment, delinquency would end. Rather it advocates corporal punishment as an alternative that will reduce overcrowding in prisons.
Tati East MP, Samson Guma, concurred with Molefhabangwe as he expressed concern over the law having aspects of discrimination. He advocated that if corporal punishment is adopted, it should be effected on all persons regardless of age or gender.
Nehemiah Modubule, MP for Lobatse also held the same view. However he remained partial in his contributions as he commended the move to render [sic] the presiding judge discretion when dealing with criminal offences.
Thebe Mogami also supported the bill as he explained that by imposing corporal punishment, the aspects of culture would be revived as well.
Selebi Phikwe, Gaborone Central and Molepolole North legislators Kavis Kario, Dumelang Saleshando and Gaotlhaetse Matlhabaphiri respectively also wondered why corporal punishment was not extended to criminals of up to 50 years.
Though Kario wondered whether it had been scientifically proven that people over the age of 40 could not be given corporal punishment.
He had some reservations on the exclusion of women from corporal punishment. Regarding the use of discretion by the judiciary in cases that attracts long mandatory sentences, he was hopeful the proviso would not be abused thus leading to the meting out of less penalties for serious offences.
In addition, Saleshando rejected the clause that provides for corporal punishment saying it was outdated. He said the country should move with the international trend and deal [sic] away with the penalty, as it is inhuman and degrading.
On the contrary, Matlhabaphiri believed the punishment was a good deterrent and cited examples to justify his arguments.
News Source: All local news stories were supplied by the Botswana Press Agency (BOPA)
Mmegi, Gaborone, 8 December 2004
'Garden boy' remark attracts MP's attention
By Lekopanye Mooketsi
Kgatleng East MP, Isaac Mabiletsa, attracted the keen attention of his Gaborone North counterpart Keletso Rakhudu when he used the term garden boy in Parliament on Monday.
An attempt by Rakhudu to get a clarification on what Mabiletsa meant by the term did not bear fruit as he was told by the Kgatleng MP to bid his time until drinking time at the parliamentary pub. During debate on the Penal Code (Amendment) Bill, Mabiletsa proposed that when a garden boy has slapped the employer's wife, he should be flogged rather than jailed. An unapologetic Mabiletsa then told Rakhudu who wanted to know what he meant by the term that they would discuss it later over a drink in the parliamentary pub. Garden boy is regarded as a derogatory reference to a gardener. The terms gained notoriety during the apartheid era in South Africa, when even elderly people employed by whites, were addressed as garden boys and kitchen girls.
While discussing other aspects of the Bill, Mabiletsa said that prison can turn an offender into a hardened criminal. He supported the imposition of corporal punishment and not jail for minor offenders.
He said corporal punishment can rehabilitate an offender better than jail. He said flogging could be a panacea to juvenile delinquency and anti-social behaviour. He added that corporal punishment should be applied indiscriminately on the offenders irrespective of gender.
He said that when they were at school, both boys and girls were flogged. He asserted that some leaders are now holding positions of responsibility because they used to be disciplined by flogging when they were young.
Mabiletsa said Botswana should continue to administer corporal punishment even though other countries are against it. He said in some countries like the United States, which are making noise about human rights, one could even be handcuffed for a minor traffic offence.
He proposed that there should be a limit to the number of strokes and suggested a maximum limit should be four strokes.
He asserted that if the maximum limit is six, then this can be tantamount to abuse.
The aim of the Penal Code (Amendment) Bill is to provide for the imposition of a lesser punishment on a person convicted of an offence even where an enactment prescribes a minimum penalty. The proposed law provides for corporal punishment as an alternative to imprisonment for those who fail to pay court fines.
© Mmegi, 2002
Botswana Daily News Online, 8 December 2004
Inclusion of females might lead to tampering with the Constitution
PARLIAMENT - The Minister for Presidential Affairs and Public Administration, Phandu Skelemani, has expressed fear that the inclusion of 'females' in the Penal Code Amendment Bill might result in tampering with the Constitution.
Skelemani was interjecting following Mmadinare MP Ponatshego Kedikilwe's warning that should the minister disregard the advice of 'gender neutralising' bill, he would move for an amendment that "corporal punishment should be administered on all persons under the age of fifty regardless of their sex," "This is a legal issue because corporal punishment of females was non-existent at independence, hence the Constitution being silent on it," explained Skelemani.
Kedikilwe maintained that circumstances have changed dramatically, thus calling for prompt and timely response.
"I am afraid crime is now worsening across the gender spectrum resulting in the deprivation of our good citizens' rights and we as leaders must seriously combat this situation.
"If the constitution is silent on some of these proposed reforms, then it would be desirable if we also revisited it," argued Kedikilwe.
The Mmadinare legislator, however, noted that amending the Penal Code to further advance corporal punishment as proposed was a double-ended-nail.
While it might attract negative criticism from the international arena, warned Kedikilwe, it might also drive away potential investors harbouring fears that crime was being "reluctantly" curbed.
The MP also observed that previously Parliament has been prescribing minimum mandatory sentences for some offences overlooking certain crucial points, thus "tying the hands of judicial officers".
He expressed his pleasure that the Bill now wants to give the judicial officers discretion to assess a case and order a sentence, which he/she deemed, fit to impose.
"Notwithstanding any provision in any enactment which provides for the imposition of a statutory minimum period of imprisonment upon a person convicted of an offence, a court may, where there are exceptional extenuating circumstances which would render the imposition of the statutory minimum period of imprisonment totally inappropriate, impose a lesser and appropriate penalty," reads the clause that he relied on.
Meanwhile, Isaac Mabiletsa of Kgatleng East also supported the notion that corporal punishment must be administered across the board.
He warned that in the enactment of such laws international pressure "should not cloud our thinking".
Mabiletsa urged MPs to note the distinction between petty and silly crime versus serious organised crime.
"We can not subject all criminals to thrashing but those silly ones whose habits are redeemable can be saved from rotting in jail," said Mabiletsa.
The Kgatleng East MP, however, complained that if the number of lashes were to be increased then the whole exercise would be abusive as opposed to being rehabilitative.
"I believe that the traditionally prescribed two and four are fine because public flogging in itself is embarrassing and humiliating to the recipient," he said. BOPA
News Source: All local news stories were supplied by the Botswana Press Agency (BOPA)
International Herald Tribune, Paris, 11 December 2004
A Botswana chief of a different gender
By Sharon LaFraniere
RAMOTSWA, Botswana Mosadi Seboko's first name is not
really a name. Rather, it is a reflection of her father's shock
when he saw first saw her. Translated from Setswana, the local
language here, it means simply "woman."
............Seboko has sometimes turned upside-down the notion of what a traditional leader thinks. It is hard to imagine a male chief talking, as Seboko does in interviews, about abuse against women. Her own husband beat her. "So I divorced in 1978," she said. "I can't stand violence. I didn't want to be abused." Or about sexual rights: "I believe women have the power. It is very easy for us to say no to sex."
But on other issues, her positions are as rooted in tradition as any male chief's. She supports caning as a form of punishment in the kgotla, the red brick and tile open-air shelter that serves as the meeting place for the tribe of 33,000.
She doesn't approve of jeans-clad women in the kgotla. Or condoms in the schools. Nor does she see the need for persons infected with HIV to declare their status publicly.
Cynics might say that Seboko is chief now only because Botswana's chiefs no longer have any real power. Over time, elected officials have usurped much of their role. But in many communities, including Ramotswa, chiefs remain highly respected figures.
............As chief, earning roughly $2,000 a month, Seboko is a mix of community conscience, family counselor, dispute mediator, crime prevention officer and judge.
She presides over civil cases involving amounts under $1,000 or 70 sheep or goats and criminal cases where penalty is less than three years in prison or a fine. In certain cases, she can order six strokes of the cane - a power she said she uses "all the time."
Her manner is businesslike and friendly, except when it comes to the touchy subject of how her family fought over her ascension. Wary of offending her uncles afresh, she firmly cut off that line of inquiry in an interview.
Copyright © 2004 The International Herald Tribune | www.iht.com
Mmegi, Gaborone, 31 December 2004
To flog or not to flog women?
By Tomeletso Sereetsi
Thursday night or some other night in a week is usually ladies night in many nightclubs and various entertainment joints. What it means is that free entry is guaranteed on the basis of the biologically agreed physiological features that distinguish one as a female.
It is these features that ascribe women the aesthetic quality that is seen as an unrivalled drawing card for the moneyed patrons - men. It is an exploitation of the woman's erotic power, a fact which the women have long legitimised and helped harness for the entrepreneur, for the free ticket, the prospect of a few free drinks and all night pampering if all goes well. And the preferential treatment is well received by the recipients without a whine. The men, however, have to pay to gain entry (to the women or to be more precise, to what women have on offer, imagined or real).
Take a different situation, says Kinolo Makhokhoba; a woman and a man commit the same offence. The man is to be flogged. The woman escapes the ordeal, just because she is a woman. He argues that the woman is happy with the state of affairs because tradition, no matter how painful it inconveniences man, is legitimised to inform the course of justice. The advocacy for is parried out as quickly as it is advanced when the tradition in the law rubs women the wrong way.
Women like to advocate for equality but they are the same people who perpetrate inequalities when it serves them. It is when they are supposed to face the music just like men that they cry foul. They are hypocrites. They would not let bogadi be abolished. Emang Basadi e ka campaigna gore go ye ntlha e le nngwe. At the end of the day, justice should be informed by equality. If the crimes are similar, then the punishment must be similar as well, he argues.
He says that tradition's shackles are deeply entrenched to an extent that it pains to imagine a woman a bapotswe out in the open, being flogged. He says that women's bodies have long been respected. He adds that the flogging of men and the non-flogging of women is based on social considerations, not medical arguments.
Maybe Makhokhobas assertion is true. Ruth Mompati, a public cellular phone operator along Blue Jacket Street in Francistown shows a genuinely appalled face at the thought of a woman being flogged in Kgotla. To her, the issue seems to appeal less to the intellect than to her sentimental side. It is an unapologetically no go area that should not be spared a thought.
Nna ga re a go tlotla, ga re go itse gotlhelele. Mmele wa mosadi o setete. My skin differs from a man's, she says.
For her, those who call for the flogging of women are lunatics and perfectly mirror the degeneration of the Tswana culture and tradition.
Latifah Setambule, a third year Information Systems student at the University of Botswana sees no problem with the flogging of women if justice is to be seen to be done. She argues that the status quo encourages and lends credibility to an enemy of women's progress - gender inequalities.
Women are being spoilt rotten. We are all human beings and if you know that your body is weak, why commit offences that men commit and get flogged? If the same offence is committed then the punishment should be the same, irrespective of the sex of the perpetrator. That is equality before the law, she argues.
She wonders why the stroke should suddenly be the sole preserve of men when as children, both girls and boys are given a healthy dose of it for discipline. She says that this clearly shows that women are being treated as vulnerable and fragile objects. Accepting the status quo for Setambule defeats the women's movement for gender equality. It actually lends the evil an angelic clout.
She argues that the issue reflects men's long-standing worship of women. That is how she explains the fact that it is men who devised the law of flogging. Men have long worshipped women because they (women) help define them as men. Men depend on women for their ego and are wary of any schemes that may upset the relationship. They are afraid that if they publicly flog a woman, they would take away that mystery, she says.
Tatitown Customary Court president, Margaret Mosojane is torn between tradition and the ideal of equality and justice. For her the issue of flogging women is complex and multi-faceted with no clear-cut answer. She says that with about 31 cases of teenage mothers who neglect their children reaching her office daily, she is compelled to call for the flogging of the young women.
These young mothers, some of them HIV positive, have a tendency of frequenting night spots drinking alcohol and taking drugs, abandoning their babies unattended at home. Even when you fine them, they do not feel the pain because it is their parents who pay the fine as the young mothers are often unemployed. Caning can go a long way in helping in situations like this to deter them from such actions, she says.
But then femininity and tradition gets the better part of her. In Setswana it is not proper to whip a woman even though it seems to get in the way of fairness. As a woman, my pregnancy impacts on my health. Our bodies are different from that of men.
If a woman is not in ill health and is of the right age as is the case with male recipients of the cane, she should be flogged as well if convicted, she says. Makhokhoba and Mosojane wish corporal punishment could be abolished completely to avoid the pain it causes as far as justice and tradition are concerned. But then, this is not an easy option as the prisons are already full and fines are not paid.
Phasing out flogging would be nice, but when looking at the complaints that we receive of parents being the butt of insults and other petty crimes, one cannot help but see how invaluable flogging is. The parents simply expect us to flog the child back on track as endorsed by Setswana tradition, says Mosojane.© Mmegi, 2002
THE ARCHIVE index
www.corpun.com Main menu page
Copyright © Colin Farrell 2005
Page created: April 2005