FOCUS

Law, religion and human rights in Botswana

Emmanuel Kwabena Quansah

Professor of Law, Department of Law, University of Botswana, Gaborone, Botswana

SUMMARY

Religion is universally recognised as a fundamental and inalienable right. It comprises a set of common beliefs and practices generally held by a group of people, codified as prayer, ritual, religious law as well as cultural and ancestral traditions and myths. In Botswana, religion plays a significant part in the lives of the majority of people. The constitutional framework within which religion is practised allows freedom of religion and a number of legal provisions exist to protect this freedom. This article appraises the current state of religious freedom in Botswana in the context of constitutionally guaranteed human rights. It concludes that the basic framework established by the Constitution creates a separation of religion and state and provides the enabling environment for the exercise of freedom of religion. Consequently, it has ensured the requisite social harmony not only for continuous development, but also for continuous enjoyment of freedom of religion.

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* LLB (Hons), LLM (London), LLD (UNISA); quansahe@mopipi.ub.bw
1 See eg sec 26 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (UN General Assembly Resolution 36/56 of 25 November 1981; sec 3 of the Universal Declaration of Human Rights (UN General Assembly Resolution 217A of 10 December 1948); sec 21 of the International Covenant on Civil and Political Rights (UN General Assembly Resolution 2200 of 16 December 1966); and art 8 of the African Charter on Human and Peoples' Rights 1981/1986.
2 See eg GA Lindbeck Nature of doctrine (1984) 33 and L Jones (ed) Encyclopedia of religion (2005) 7692-7701.         [ Links ]         [ Links ] For the problems in defining religion, see JG Platvoet & AL Molendijk (eds) The pragmatics of defining religion: Contexts, concepts and contests (1999) especially 260-261;         [ Links ] JM Donovan 'God is as God does: Law, anthropology, and the definition of "religion"' (1995) 6 Seton Hall Constitutional Law Journal 23 70;         [ Links ] GC Freeman 'The misguided search for the constitutional definition of "religion"' (1983) 71 Georgetown Law Journal 1519;         [ Links ] and TJ Gunn 'The complexity of religion and the definition of "religion" in international law' (2003) 16 Harvard Human Rights Journal 189 191.         [ Links ]
3 A name used to describe the people of Botswana.
4 For an insight into the establishment of the Bechuanaland Protectorate, see J Ramsay 'The establishment and consolidation of Bechuanaland Protectorate, 1870-1910' in WA Edge & MH Lekorwe (eds) Botswana, politics and society (1998) 62.         [ Links ]
5 Recent archaeological findings of carvings about 70 000 years old on a snake-like rock in a cave in Botswana indicate that Stone Age people developed religious rituals far earlier than previously believed. These carvings are believed to be evidence of the oldest religion in the world; http://www.namibian.com.na/2006/December/africa/0660AC849A.html (accessed 30 September 2008).
6 See L Nyati-Ramahobo 'The language situation in Botswana' (2000) 1 Current Issues in Language Planning 243 254.         [ Links ]
7 Nyati-Ramahobo (n 6 above) 255.
8 See JN Amanze Ecumenism in Botswana - The story of the Botswana Christian Council (2006).         [ Links ]
9 See N Parsons The Botswana history pages ch 11 http://ubh.tripod.com/bhp11.htm (accessed 5 January 2008);         [ Links ] Nyati-Ramahobo (n 6 above) 255.
10 These were the Ngwato, the Tawana, the Kwena, the Ngwaketse, the Kgatla, the Malete, the Rolong and the Tlokwa.
11 Parsons (n 9 above). See also SN Parratt 'Religious change among women in urban Botswana' (1995) 25 journal of Religion in Africa 73 74.         [ Links ]
12 See ch II of the 1966 Constitution.
¹³ See AH Robertson & JG Merrills Human rights in the world: An introduction to the study of the international protection of human rights (1996).         [ Links ]
14 See his Summa theologica (1265-1274).
15 Eg, the Universal Declaration of Human Rights in 1948 by the United Nations General Assembly.
16 See CM Fombad 'The protection of human rights in Botswana: An overview of the regulatory framework' in CM Fombad (ed) Essays on the law of Botswana (2007) ch 1.         [ Links ]
17 See Petrus & Another v The State [1984] BLR 14 33 and Attorney-General v Unity Dow [1992] BLR 119 129 166.
18 See Dow (n 17 above) 148.
19 See http;//www.prb.org (accessed 28 February 2008). The 2001 Population Census gave the population as 1 680 863.
20 See http://strategyleader.org/profiles/tswana.html (accessed 5 January 2008).
21 See DD Nsereko 'Religious liberty and the law in Botswana' (1992) 34 Journal of Church and State 843.         [ Links ]
22 See Public Holidays Act (Cap 03:07) and Government Notice 506 of 2007. In 2008, the following Christian days will be observed as public holidays: Good Friday 21 March; Easter Monday 24 March and Ascension Day 1 May.
23 See Amanze (n 8 above) 229.
24 As above.
25 As above.
26 See Botswana: International Religious Freedom Report 2007 released by the US Bureau of Democracy, Human Rights and Labour on 14 September 2007. The World Christian encyclopedia, OUP, Vol 1 (2001) 126 gives the religious demography as follows: Christians 59,9%; Independent 30,6%; Protestant 11,0%; Roman Catholic 3,7%; Anglican 0,7%; Marginal 0,3%; Ethno religious 38,8%; Bahai 0,8%, Muslim 0,2%; non-religious 9,1% and Hindus 0,1%. The Joshua Project gives the following religious breakdown: Buddhism 0,1%; Christianity 66,3%; Ethnic religion 32,3%; Hinduism 0,1%; Islam 0,2%;non-religious 0,2%; other/small 0,8%. See http://www.joshuaproject.net (accessed 28 February 2008). Parsons (n 9 above) cautions about statistics relating to Christian affiliation and church members as membership of independent churches is hard to measure and is often overlooked.
27 See Nyati-Ramahobo (n 6 above) 256 and Amanze (n 8 above) 3-40.
28 See J Amanze A history of the ecumenical movement in Africa (1999).         [ Links ]
29 For an insight of Muslims in Botswana, see SN Parratt 'Muslims in Botswana' (1989) 48 African Studies 71-82.         [ Links ]
30 See International Religious Freedom Report 2007(n 26 above).
31 See secs 3-19 of the Constitution.
32 See Dow (n 17 above) 133.
33 See Nsereko (n 21 above) 844.
34 As above.
35 See Kamanakao I & Others v Attorney-General & Another [2001] 2 BLR 654 666.
36 These rights have not been concretised and include an extremely broad spectrum of rights such as the right to self-determination, the right to a healthy environment and the right to participation in cultural heritage. See generally K Vasak 'Human rights: A thirty-year struggle: The sustained efforts to give force of law to the Universal Declaration of Human Rights' (1977) UNESCO Courier 30:11.         [ Links ]
37 See Constitution (Amendment) Act, 2005, dealing with such issues as sex discrimination, reform of the House of Chiefs and the establishment of the office of Director of Public Prosecutions.
38 n 34 above.
39 The section provides for a general machinery for the enforcement of fundamental rights and freedoms by providing that any person who alleges that any of the provisions has been, is being or is likely to be contravened in relation to him, that person may apply to the High Court for redress.
40 Sec 77 provided for a House of Chiefs consisting of eight ex officio members, four elected members and three specially elected members (now see sec 11 Constitution (Amendment) Act 2005). Sec 78 made it clear that the ex officio members shall come only from those who are acting as chiefs in the eight 'principal tribes' of the majority Tswana ethnic group and sec 79 provided for the four elected members to be drawn from some smaller specified tribes (now see secs 12 & 13 Constitution (Amendment) Act 2005).
41 This section defines a 'chief' as a chief of one of the principal Tswana tribes.
42 This section provides for the protection from discrimination on the grounds of race, tribe or place of origin.
43 671.
44 See n 37 above.
45 On the resettlement policy, see DG Boko 'Integrating the Basarwa under Botswana's Remote Area Development Programme: Empowerment or marginalisation?' (2002) Australian Journal of Human Rights 19.         [ Links ]
46 [2006] 2 BLR 633.
47 See CM Fombad 'The constitutional protection against discrimination in Botswana (2004) 53 International and Comparative Law Quarterly 139 160.         [ Links ]
48 See n 33 above.
49 There is some evidence, however, of Christian preference by the statutory observance of Christian events as public holidays. See n 18 above.
50 See RS Clarke 'The United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief' (1983) 31 Chitty's Law Journal and Family Law Review 23.         [ Links ]
51 See Nsereko (n 21 above) 847.
52 In 2004, however, there was reported to have been a minor controversy over some stores' practice of buying halal products, particularly chicken, which was alleged to unfairly favour Muslims at the expense of others. This led to public comments in newspapers, but this did not translate into any discrimination or antagonistic attitudes towards Muslims. See US Department of State's International Religious Freedom Report 2005 released on 8 November 2005.         [ Links ]
53 See eg Oxford dictionary of current English which defines creed as '[system of] beliefs or opinions, especially on religious doctrine'.
54 n 17 above, 147 per Amissah JP.
55 See RC Blake & L Litchfield 'Religious freedom in Southern Africa: The developing jurisprudence' (1998) Brigham Young University Law Review 515-562.
56 See sec 136.
57 Sec 137.
58 Sec 138.
59 Sec 139.
60 Sec 140.
61 See sec 33 of the Penal Code which provides general punishment for offences for which no punishment is prescribed. Of the offences created by secs136-140, only sec 140 provides a specific punishment for the infringement of the offence created by that section. The rest do not specify the punishment for their infringement, hence the general provision in sec 33 applies.
62 See Kamanakao (n 34 above) 669.
63 See secs 74-79 of the Penal Code.
64 See sec 240 of the Penal Code. A similar offence is created by sec 11(2) (b) of the Children's Act 1981.
65 Criminal case KN17/1990, Kanye Magistrate's Court (unreported) confirmed by the High Court in Review Case 155/1990 (unreported) but set out in Nsereko (n 21 above) 854-855.
66 See Nsereko (n 21 above) 855.
67 See n 1 above. See also DJ Sullivan 'Advancing the freedom of religion or belief through the UN Declaration on the Elimination of Religious Intolerance and Discrimination' (1988) 82 American Journal of International Law 487.
68 See n 22 above. Other evidence of preference for Christianity is found in the introduction to the Ministry of Education's Religious Education Syllabus for Senior Secondary Schools. It states: 'The syllabus takes cognisance of the religious pluralism of the society of Botswana. All learners are expected to do Christianity and then they can choose any other two religions.' See http://www.moe.gov.bw/downloads/BGCSE_RE.pdf (accessed 30 September 2009).
69 See Shop Hours (Extended Hours) Order 1990 (as amended).
70 See part II of the Marriage Act 2000.
71 See para 6.10 National Policy on Culture http://www.gov.bw/docs/national_policy_on_culture_v2.pdf (accessed 28 February 2008).
72 Under sec 3 of the Act, 'society' is defined to include any club, company, partnership or association of 10 or more persons, whatever its nature or objects. It excludes certain bodies such as political parties, companies as defined under the Companies Act 2003 and any society or class of society which may be declared no to be a society for the purpose of the Act. See Registration of Societies Regulations 1973 (as amended) and Societies (Declaration of Non-Societies) Regulations 1977.
73 See The Evangelical Lutheran Church in Southern Africa v Phillip Jeremiah Robinson & Another [1982] 1 BLR 215 (CA) 219.
74 In terms of sec 3 and the schedule to the Act, certain societies such as political parties are exempted from registering under the Act.
75 See sec 20 of the Societies Act 1972.
76 See Botswana: International Religious Freedom Report 2007 (n 26 above). Under sec 7(1) (b) of the Act, the Registrar may refuse to register a society where the society, within 90 days immediately after being required to provide information to the Registrar, fails to provide the requisite information.
77 See sec 7 of the Act.
78 See US Department of State International Religious Freedom Report 2002 released on 7 October 2002.
79 Remarks made by Hon M Ngwako, the then Minister of Health, Labour and Home Affairs when introducing the Societies Bill in parliament. See National Assembly Official Record (Hansard-39), 3rd session of the Second Parliament 3-16 December 1971 151.
80 [1995] BLR 161.
81 Tebbutt JA 165.
82 See secs 21-23 of the Act.
83 See the Daily News of 4 September 2002 and 5 September 2003.
84 See Amanze (n 8 above) 76.
85 See Council's Constitution adopted on 21 May 1966 1.
86 Amanze (n 8 above) 79.
87 Amanze (n 8 above) 235.
88 Amanze (n 8 above) 245.
89 Amanze (n 8 above) 369-374.
90 The other countries are Malawi, Zambia and Zimbabwe.
91 See The Zimbabwean Independent of 19 October 2007.
92 See the Botswana newspaper, Mmegi/Reporter of 25 January 2008.
93 See secs 164, 165 & 167 of the Penal Code.
94 See Kanane v The State [2003] 2 BLR 67 (CA) and EK Quansah 'Same-sex relationships in Botswana: Current perspectives and future prospects' (2004) 4 African Human Rights Law Journal 201.
95 See sec 9(3) of the South African Constitution 1996.