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Judicial CP - March 2005
Botswana Daily News Online, 30 March 2005
House approves bill on corporal punishment
PARLIAMENT - Parliament has approved the Customary Courts (Amendment) Bill which seeks to broaden the age limit for which corporal punishment may be imposed and to rationalise the sections of the law dealing with related punishments.
Assistant local government minister Ambrose Masalila said when presenting the bill to Parliament Thursday that corporal punishment was currently imposed as a specific punishment for specified offences.
Masalila said everyday offences such as common assault, use of insulting language, malicious damage to property, theft and forgery are not included.
He said the Court of Appeal has held that it is undesirable to impose corporal punishment in addition to a long term of imprisonment.
This decision quashed the corporal punishment for offences such as rape, defilement and robbery for which minimum prison term is prescribed by law.
Corporal punishment may also not be afflicted upon females, or upon males aged more than 40. In performing their duties customary courts have to impose prison sentences where relevant, even for minor cases, resulting in congestion in prisons.
To reduce congestion, the bill proposes that customary courts be empowered to determine where to impose sentences of corporal punishment instead of short of prison terms.
To facilitate this, it is proposed to amend Section 18 of the Customary Courts Act to raise the maximum age for corporal punishment from 40 to 50.
The proposed amendment was referred to Ntlo ya Dikgosi in November last year as required by the Constitution, and Ntlo ya Dikgosi agreed.
Offences that corporal punishment can currently be imposed on are aggravated rape with violence, attempted rape, indecent assault, attempted defilement, defilement of imbeciles and procurement by pimps.
Others are living off the earnings of prostitution (second offence), attempted murder by a convict, disabling in order to commit an offence, endangering the safety of a person travelling by rail, assault occasioning actual bodily harm, robbery, housebreaking and burglary and related offences.
Robert Molefhabangwe, the MP for Gaborone West South opposed the bill because he does not want to endorse any form of barbaric torture.
Molefhabangwe said it was time Botswana abolished all forms of barbaric torture in line with international conventions, adding that it was neither here nor there to argue whether one gender was physically correct to be subjected to whipping by the cane.
Pono Moatlhodi of Tonota South supported the proposal to administer corporal punishment without discrimination so as to reduce congestion in prisons.
Botlogile Tshireletso of Mahalapye East said she supported corporal punishment because it would help reduce congestion in prisons.
Tshireletso said she is opposed to whipping of women because their bodies where not physically strong to withstand it, hence the Setswana saying that "Ya mosimane ke e nkgwe", meaning that corporal punishment was traditionally for males. BOPA
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