COVID-related human rights issues
State of Public Emergency
Following the announcement of the confirmation of the first cases of coronavirus on 30 March 2020, on 31 March, President Masisi declared a State of Public Emergency Emergency in accordance with section 17 of the Constitution, ‘’until further notice’’. Section 17 empowers the President to declare it for a period of 21 days, when Parliament is not sitting. He further resolved to hold a Parliamentary Meeting to ‘’. seek a resolution of Parliament for the state of emergency to continue for a longer period’’. During a press conference on 7 April 2020, President Masisi stated that he would seek a resolution for a State of Emergency for a period of 6 months. Section 17 of the Constitution limits maximum period for which such a declaration can be approved, is six (6) months. On 9 April 2020, Parliament passed the resolution tabled by Vice-President Tsogwane, for the State of Emergency to last for six (6) months. On 8 April 2020, President Masisi had stated that ‘’The State of Emergency is intended to deal only with the COVID-19 crisis and will not in any way undermine people’s fundamental rights’’. However, of concern is that States of Emergency risk being used for purposes other than that for which they have been allegedly been declared. On 31 March 2020, President Masisi declared a 28 day lockdown for the period 2-30 April 2020. On 30 April 2020 it was extended for a further 21 days.
Early reported human rights abuses during the State of Emergency include:
•The spokesperson of the Botswana Patriotic Front, Justice Motlhabane, allegedly assaulted and arbitrarily arrested on 10 April 2020 by the police (BPF President Biggie Butale 11 April 2020);
•Nicholas Kgopotso of the Umbrella for Democratic Change (UDC), who was allegedly harassed by 12 police officers for allegedly causing noise during the current COVID-19 lockdown;
•Two persons (Neo Dikgole and Thuso Sebinyane) who were allegedly assaulted by the police (Office of the President, 11 April 2020); and
•Three suspects arrested for ‘’… publishing, through electronic communications, offensive statements against government …’’ (Botswana Police Service, 11 April 2020). In terms of the Emergency Powers Act No 61 of 2020 section 31 (3) ‘any person who publishes a statement … with the intention to deceive … about any measure take by the Government to address COVID-19, commits an offence and is liable to a fine not more than P100 000 or to imprisonment for not more than 5 years or to both. It is not clear in which law the offence of ‘offensive statement against government’ is contained. Additionally, the right to freedom of expression is protected under section 12(1) of the Constitution. It can only be limited under exceptional circumstances provided by law and which are necessary for the protection of … public health … (article 19.3 (b) of the International Covenant on Civil and Political Rights).
Human Rights which have been curtailed during the State of Emergency are: freedoms of movement, speech, expression, assembly religion and the rights to work and to education for those schools which are unable to implement an e-learning programme for their students, following the closures of schools.
Right to counsel
The right to counsel is constrained due to the limitations placed on lawyers through the Emergency Regulations. Legal services are considered to be essential services. However, the issuing authority for permits for the Ministry of Defence, Justice and Security shall be the Registrar of the High Court in respect of urgent litigation matters and the Ministry as regards non-litigation urgent matters. Determination as to the urgency of matters rests with the issuing authorities. This necessitates lawyers being forced to violate the principle of lawyer-client confidentiality as they are expected to provide information about the cases, to the issuing authorities before their application for a permit may be considered. Without prior access to their clients to determine the facts, the right to counsel and a fair trial will be severely compromised.
CSOs have established 2 call lines for the reporting of human right abuses, but as they are not toll free numbers, they are not accessible to the most vulnerable in the community who have no money to pay for airtime. DITSHWANELO and Molao Matters are managing the call lines which were established on 21 April 2020.
There was a surge in the number of reported GBV cases which has led to the opening of 5 temporary shelters in Gaborone during the April lockdown period.
CSOs working directly in the field of GBV receive calls on their emergency telephone numbers and are able to house the GBV survivors in shelters and to offer counselling. The Botswana Gender Based Violence and Prevention Centre coordinates this work.
Civil society organisations working on issues relating to children have reported concern for those children who are confined to their homes, in cases where they experience cases of incest.
CSOs working directly in the field of children’s rights receive calls on their toll free telephone number and are able to house the abuse survivors in shelters and to offer counselling. Botswana Network for Mental Health and Childline are coordinating the counselling activities.
Right to work
Informal sector workers – including domestic workers, farm workers, taxi drivers, hairdressers, artists, street vendors, car washers, piece-job workers; car park attendants, youth; and informal sector migrant workers (they are not eligible for any wage subsidy or COVID-19 Government feeding scheme) – all form a group of workers which is most vulnerable to the economic consequences of the lockdown. They are not registered under any of the government social protection schemes (such as the Supplementary Feeding for Vulnerable Groups, Destitute Programme, Labour Based Drought Relief Programme) and are consequently invisible to the authorities. This group of workers is facing hunger and is dependent on food handouts. As a group which has been self-sufficient and able to provide for itself, it is experiencing a COVID-induced poverty and an undermining of its dignity.
CSOs receive calls through the group counselling telephone numbers from informal sector workers unable to cope due to having no income and no food. The Government’s feeding scheme has taken time to reach the beneficiaries. It is also not clear for how long it will last. DITSHWANELO is coordinating the humanitarian support activities and engaging with BOISA – an informal sector workers’ group.