According to Botswana's 1966 Constitution (as amended),
every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest to each and all of the following, namely — (a) life, liberty, security of the person and the protection of the law.S. 3, 1966 Constitution of Botswana.
The Constitution further delineates when intentional deprivation of life will not be unlawful:
if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable —
(a) for the defence of any person from violence or for the defence of property
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
(c) for the purpose of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission by that person of a criminal offence,
or if he dies as the result of a lawful act of war.S. 4(2), 1966 Constitution of Botswana.
Thus, it would appear to be potentially lawful to kill purely to defend property. This permissiveness does not comply with international law.
Section 13 of the Constitution protects freedom of assembly:
(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly ..., that is to say, his right to assemble freely....
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision:
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons....
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||Not party|
|1998 Rome Statute of the International Criminal Court||State Party|
|1981 African Charter on Human and Peoples' Rights||State Party|
|1998 Protocol to the African Charter on the African Court||Not party|
|Article 34(6) declaration regarding individual petitions||N/A|
|Malabo Protocol on Amendments to the African Court of Justice and Human Rights||Not party|
Police Use of Force
Legislation governing police use of force is contained in a series of longstanding laws and regulations: the 1939 Criminal Procedure and Evidence Act, the 1964 Penal Code, and the 1978 Police Act.
According to Section 47 of the 1939 Criminal Procedure and Evidence Act:S. 47(1) and (2), 1939 Botswana Criminal Procedure and Evidence Act.
Where a peace officer or other person authorized to arrest a person ... endeavours to make such arrest, and the offender forcibly resists the endeavours to arrest him, or attempts to evade the arrest, such peace officer or other person may use all means necessary to effect the arrest.
Nothing contained in this section shall be deemed to justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.
According to the 1964 Penal Code:S. 17, 1964 Penal Code.
Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.
Under the 1978 Police Act:S. 6(1) and (2), Police Act (Cap. 21:01) (Act No. 29 of 1978).
The Force shall be employed in and throughout Botswana to protect life and property, prevent and detect crime repress internal disturbances, maintain security and public tranquillity, apprehend offenders, bring offenders to justice, duly enforce all written laws with which it is directly charged and generally maintain the peace.
For the performance of their duties under this Act police officers may carry arms.
The Police Act further provides that:S. 23, 1978 Police Act.
An offence against discipline is committed by any police officer who is guilty of ... unlawful or unnecessary exercise of authority, that is to say, if any police officer
(i) without good and sufficient excuse makes any unlawful or unnecessary arrest;
(ii) uses any unnecessary violence to or intimidates any prisoner or other person with whom he may be brought into contact in the execution of duty
If a police officer is found guilty of such conduct, he may, depending on the degree of violence or intimidation, be dismissed from the police service.
Use of Force in Custodial Settings
Use of force in prisons is governed by the 1979 Prisons Act.S. 33(1) to (3), Prisons Act (Cap 21:03) (Act No. 28 of 1979).It allows disproportionate use of force to stop escaping prisoners who are unarmed:
(1) Any prison officer may use such force against a prisoner as is reasonably necessary in order to make him obey lawful orders which he refuses to obey or in order to maintain discipline in a prison.
(2) Any prison officer may use any weapons which have been issued to him, including firearms, against a prisoner if -
(a) he is escaping or attempting to escape and refuses, when called upon to return
(b) he is engaged with other persons in breaking out or attempting to break out of any part of a prison and continues to break out or attempts to break out when called upon to desist
(c) he is engaged with others in riotous behaviour in a prison and refuses to desist when called upon
(d) he is endangering the life of, or is likely to inflict grave injury to, the prison officer or any other prison officer or person and the use of weapons, including firearms, is the only practicable way of controlling the prisoner
(e) he is aiding or attempting to aid a prisoner to escape:
Provided that weapons shall not be used unless as authorized in paragraphs (a), (b) and (c) unless the officer has reasonable cause to believe that he cannot otherwise prevent the escape, breaking out or riotous behaviour, as the case may be.
(3) Any weapon issued to a prison officer may be used against a person other than a prisoner if such person aids or attempts to aid a prisoner to escape.
Under the 1979 Prison Act:S. 46(1) (l) and (m), 1979 Prisons Act.
Any prison officer shall be guilty of an offence against discipline who offers or uses unwarranted personal violence to or against any person in his custody otherwise than in compliance with a lawful order, uses any weapon without just cause.
A number of laws and institutions regulate the accountability of police and prison officers for potentially unlawful use of force. The Botswana Police Service Internal Affairs Unit, which became operational in 2010, investigates allegations of misconduct, including unlawful arrest or detention, torture, excessive use of force, and unlawful discharge of firearms. There is also a national Ombudsman, set up by the 1995 Ombudsman Act, that investigates complaints of injustice and maladministration of public services.
As of writing, the government was in the process of amending the 1978 Police Act to provide for the establishment of an independent Police Commission, as a follow-up to a parliamentary motion.
Views and Concluding Observations of United Nations Treaty Bodies
The last Concluding Observations on Botswana by the Human Rights Committee (in 2008) on the implementation of the ICCPR did not address police use of force.
Botswana is not a state party to the Statute of the African Court of Human and Peoples' Rights.
A number of older criminal cases have addressed unlawful police use of force.
State v. Thebe and others
In this 1993 High Court case,State v. Thebes 1993 BLR 484.the five accused were police officers who had participated in the interrogation of the deceased, a suspect in their custody. The deceased had been manacled on the orders of the first accused. The purpose of placing the manacles on the deceased was to get a confession out of him. The accused was assaulted and the force used was brutal and excessive. There had been no legal justification for the use of such excessive force on the deceased. Although it was not possible to ascertain who had caused the actual death of the deceased, the death resulted from injuries unlawfully caused. Accordingly, the participants in the assault were all criminally responsible for the death that ensued. As the prosecution had not proved the intention to kill the deceased, the accused, who had put into execution an unlawful common purpose, were guilty of manslaughter.
Makwati v. State
In this 1996 case,Makwati v. State 1996 BLR 682.the appellant was a member of the Special Support Group (SSG) of the Botswana Police Service. Several police officers had been assaulted during the night, and the following day, the appellant and others went to look for persons who had assaulted their colleagues. The appellant was in possession of an AK-47 assault rifle. When he sought to arrest a suspect, this man brushed aside the appellant’s firearm and ran away. The appellant fired three shots from his AK-47 in automatic mode from behind the deceased, all of which struck him. There were no warning shots fired, it was during daylight, and there were many police officers surrounding the deceased’s yard. The court held that the appellant had gone far beyond the limited protection afforded by Section 47 of the 1939 Criminal Procedure and Evidence Act in shooting dead the suspect with an AK-47 in automatic mode. The appellant was convicted of manslaughter by the Court of Appeal.