Introduction

Traditionally in Botswana society, children are not viewed as rights holders. They are expected to obey their parents and other adults without question. Under Customary Law children are not allowed to speak in Kgotla meetings (community gatherings and consultations).

The majority of Batswana misunderstand ‘children’s rights’ for freedoms which are perceived as a threat to cultural and customary law principles, such as respect for elders and parents. In combination, these traditions and attitudes result in a lack of participation by children in decisions affecting them, a failure to understand and appreciate children’s rights, and increased opportunities to abuse children’s rights.

Definition of “children”

Botswana is developing the second phase of its National Programme of Action for the Children of Botswana which will run until 2013 and which looks at the needs of particularly vulnerable children including those on the streets, working children, children with disabilities and orphans.

Violations of children’s rights in Botswana

HIV/AIDS is having a major impact on the ability of families to provide effective care for their children, affecting school attendance, creating many orphans (estimated to be 112,000, care of whom is disproportionately in female-headed households ), resulting in child-headed households (officially accounting for 2%, about 8,660, households in the 2001) and extended families / grandparents forced to look after orphans.

The children of minority ethnic groups, including but not limited to the Basarwa/San, are ridiculed and insulted, including by teachers.

Children with disabilities are discriminated against and not adequately integrated or receiving adequate access to social services.

Many children support their families with labour on the land or the house, but some are forced into child labour which denies them their education and childhood. For example, a Kuru survey in 2000 found that 37% of farm workers aged 7-20 years in the Ghanzi District had never attended school. One of the key difficulties is that these farms are private property and it is very difficult for anyone, including the government, to gain access to identify that is happening. In addition, as HIV/AIDS has increased child-headed households, children are often economically forced to work.

There are reports of forced marriages of children, which is allowed under Customary Law. The “Scoping Study on Child Labour in Botswana”, 2003, says that “among the RAD [remote area dweller] communities, notably the Basarwa, girl children can and do get married off at the age of 10 years. Such children are expected to bear and raise children”.

Quality of education

Attendance is a problem at some levels. It has been reported that around 92% of children attend primary school, but only 45% proceed to junior secondary school and 20% of these continue into senior secondary school [Botswana Multiple Indicator Survey End of Decade Review on the World Summit for Children Goals Set for 2000 UNICEF and CSO 2000. Also other, quite different, statistics have also been reported].

Botswana’s National Action Plan for Youth 2001-2010 recognises that the provision of vocational training is very limited, with (at 2001) only 6.7% of primary school leavers likely to have access to vocational training. Schools teach only in English and Setswana, denying the other 24 language groups education in their mother tongue, as well as the opportunity to develop high-level language skills.

The children of Remote Area Dwellers (RAD), especially Basarwa / San, are often forced to live in hostels a long way from their homes. The hostels which are inadequately staffed, poorly maintained, overcrowded and inadequately supplied with clothing, lighting and other necessities. [BEST Report – RADS Education Summative Evaluation, page 86]

Convention on the Rights of the Child

The United Nations’ 1989 Convention on the Rights of the Child, was ratified by the Government of Botswana in 1995, with a reservation on Article 1.

Legislation – Common Law

DITSHWANELO independently reviewed the following pieces of Botswana legislation:

Administration of Estates, Act No.20 of 1972

Adoption of Children Act

Affiliation Proceedings Act

Birth and Death Registration Act

Botswana Constitution

Children’s Act

Citizenship Act

Deserted Wives and Children’s Protection Act

Employment Act

Education Act, including the Corporal Punishment Regulations 1968

Marriage Act (amended 2000)

Matrimonial Causes Act

Penal Code

Succession Act

There have been amendments to a number of laws which have reduced the discrimination between those born in and out of wedlock; however, there are still distinctions (in a country in which it has been found that over 86% of couples living together were not married – 2001, Central Statistical Office, Population Census).

The Acts do not take into account the views or other participation of the child. The Constitution does not specifically give children the right to be listened to. There is a Youth Parliament and opportunities for it to publish its views, but this provides very limited opportunity for children and young people’s participation.

There are no provisions for visitation rights of non-custodial parents in the case of children born outside marriage – typically the father, although the father is responsible for maintenance payments. Where a child is born in wedlock, custody is traditionally granted to the father’s family, with the mother only having the right to visit. In neither situation does the child receive his/her right to be cared for by both parents. The Act doesn’t take account of the child’s views, although the courts have ruled that they should take account of teenagers’ views.

In the case of children born out of wedlock, the Birth and Death Registration Act does not require registration of the father.

Although the Marriage Age states that no person below the age of 18 years may marry, under customary law a child can be married off below 18 and girls can be forced into marrying someone against their will. When they marry, they are forced to leave school.

Adoption law is based on the best interests of the child. The Employment Act sets conditions for employment under and over the age of 14. The Act is in accordance with the CRC and the African Charter on the Rights and Welfare of the Child (ACRWC), other than the minimum wages issues in the ACRWC. However, there is evidence that this law is not being adhered to, especially in remote area farmers were there are significant reports of child labour. As HIV/AIDS has increased child-headed households, children are often economically forced to work.

We agree with the Committee on the Rights of the Child that Botswana has set too low an age for responsibility, being 8 years.

Customary Law