Committee against Torture

List of issues prior to submission of the second periodic report of Botswana *

Specific information on the implementation of articles 1–16 of the Convention, including with regard to the Committee’s previous recommendations

Issues identified for follow-up in the previous concluding observations

1.In its previous concluding observations, the Committee requested the State Party to provide information on the follow-up to the Committee’s recommendations on the State Party’s reservation to the Convention, the national human rights institution, the death penalty, and the treatment of refugees, asylum-seekers and migrants (paras. 16, 22, 24 and 38, respectively). Noting that replies concerning the information sought by the Committee were provided on 28 July 2023, and with reference to the letter dated 19 February 2024 from the Committee’s Rapporteur for follow-up to concluding observations, the Committee considers that the recommendations included in paragraphs 22 and 38 of the previous concluding observations have been partially implemented, but regrets that those contained in paragraphs 16 and 24 have not been implemented. These points are covered in paragraphs 3, 5, 21 and 26 of the present document.

Articles 1 and 4

2.With reference to the Committee’s previous concluding observations, please provide information regarding any legislative initiatives or consultations undertaken during the reporting period to establish torture as a distinct criminal offence in the State Party’s domestic legislation, including to incorporate a definition of torture into domestic legislation that fully encompasses the one contained in article 1 of the Convention, and to ensure that any such legislation refers to the responsibility of public officials or persons acting in an official capacity who consent or acquiesce to acts of torture. The Committee notes the previous information provided by the State Party that, even in the absence of specific legislation, general legislation may be relied upon in certain circumstances to prosecute acts that may be defined as “torture” within the meaning of article 1 of the Convention. If the State Party still lacks a specific and distinct criminal offence of torture, please provide information regarding efforts to close gaps in legislation and ensure the criminalization of all acts of torture, as defined by the Convention, including efforts to revise section 66 of the Botswana Defence Force Act, 2018, which exempts from prosecution “reasonable activities undertaken for purposes of training and discipline”. Please also inform the Committee of the steps taken to implement the Committee’s recommendation to ensure that the crime of torture is not subject to a statute of limitations. If the provisions of the Convention have been invoked before domestic courts or referenced in judicial decisions, please provide specific examples, along with statistical data on such cases.

3.Please provide information regarding steps, legislative or otherwise, taken to ensure that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification of torture. In doing so, please include specific reference to article 7 (2) of the State Party’s Constitution, which exempts from the prohibition of torture contained in article 7 (1) conduct that constituted lawful punishment immediately before the time the State Party’s Constitution came into effect. With reference to information provided by the State Party that withdrawing its reservation to article 1 of the Conventionwould be inconsistent with the provisions of section 7(2) of the Constitution,please inform the Committee as to whether the State Party still considers this to be the case, and, if so, please provide information on potential means by which this conflict between the State Party’s Constitution and its international obligations may be resolved or minimized.

Article 2

4.With reference to the Committee’s previous concluding observations, please provide updated information on measures taken by the State Party to ensure that all detained persons are afforded, in law and in practice, all fundamental legal safeguards against torture and ill-treatment from the outset of their deprivation of liberty, including: the right to have access to a lawyer of their choice and, if necessary, to free legal aid, including information regarding any initiatives to revise the Legal Aid Act, 2013 to extend free legal aid to insolvent individuals who are prosecuted for offences that do not carry capital punishment; the right to request and receive an examination by an independent medical doctor, free of charge, and the right to pay to be seen by a medical doctor of their choice; the right to be informed of their rights and the charges against them; the right to have their detention recorded in a registry; the right to notify a relative or any other person of their choice of their arrest; and the right to be brought promptly before a judge, regardless of the reasons for their arrest. In the light of information previously provided by the State Party regarding the safeguards provided in Standing Order No. 16 of the police, please clarify whether this regulation is legally binding. If not, please inform the Committee of any steps taken to enshrine, in legislation, the safeguards contained in the Standing Order.

5.With reference to the Committee’s previous concluding observations, and the follow-up information provided by the State Party, please provide updated information regarding steps taken to fully operationalize the human rights mandate of the Office of the Ombudsman in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), including as regards the implementation of the Ombudsman Act, 2021 and the provision of human and financial resources. Please inform the Committee of the current budget and staffing of the institution, along with the number of offices it has and the regions they cover. Please also inform the Committee about any legislative initiatives aimed at endowing the Office of the Ombudsman with an explicit mandate to conduct visits to places of deprivation of liberty, and provide information regarding the number of visits, if any, it has carried out in recent years, the extent to which such visits were announced or unannounced, and the results and outcomes of such visits. Please also indicate whether the State Party intends to ratify the Optional Protocol to the Convention and establish a national preventive mechanism against torture.

6.Please provide updated information on the legislative, administrative and other measures taken to eliminate all forms of violence against women, including domestic and sexual violence and harmful practices. Please include updated statistical data on the number of complaints of gender-based violence and on the investigations, prosecutions, convictions and sanctions resulting from those complaints during the reporting period. Please inform the Committee of the outcomes of the National Gender-Based Violence Strategy 2015–2020 and provide information regarding methodologies implemented to assess its effectiveness and plans for the development and implementation of an updated strategy.

7.Please provide updated information on the laws and procedures in place to prevent trafficking, including information on the status of the Anti-Human Trafficking (Amendment) Bill. Please describe, where applicable, the support and rehabilitation measures for victims and the measures taken or planned to raise awareness of this problem among law enforcement officials, including information on the status of the Anti‑Human Trafficking National Action Plan (2023–2028) and the achievements under the Plan to date. Please also provide information on any judicial decisions pertaining to cases of trafficking or related offences.

Article 3

8.With reference to the Committee’s previous concluding observations, please describe the measures taken during the period under review to ensure that no person is returned to a country where he or she would be in danger of torture, including information regarding revisions, in 2024, of the Refugees (Recognition and Control) Act, 1968, and the status of the Refugee (Recognition and Control) Bill, insofar as they contribute to the fulfilment of the State Party’s obligations of non-refoulement. Please indicate the procedure followed when a person invokes the right of non-refoulement. Please also indicate the extent to which individuals facing expulsion, return or extradition are informed that they have the right to seek asylum, have access to interpretation and free legal assistance and have a right to appeal a deportation decision, and whether any such appeal has automatic suspensive effect. Please similarly indicate the procedures and time frames in place guiding the discretionary review of first instance decisions of the Refugee Advisory Committee by the Ministry of Justice, and inform the Committee of the efforts made to ensure the independence and impartiality of the Refugee Advisory Committee.

9. Please provide updated information, disaggregated by sex, age and country of origin, on the number of persons who have been returned, extradited or expelled during the period under review. Please provide details of the grounds on which all such persons were sent back and the countries to which they were sent. Please provide updated information on the types of appeal mechanisms that exist, on any appeals that have been made and on the outcome of those appeals. Please inform the Committee about any steps taken by the State Party during the period under review to ensure the application of an approach in the refugee status determination procedure that allows for the identification of victims of torture among asylum-seekers and takes into account other diverse vulnerabilities. Please also provide updated statistical data, disaggregated by the sex, country of origin and age group of persons seeking asylum, on: (a) the number of asylum applications registered; and (b) the number of successful applications for asylum or other forms of humanitarian protection, specifying, where appropriate, the number of persons whose applications were accepted because they had been tortured or would face a risk of torture if removed to another country. Please also inform the Committee of the number of individuals in the State Party who have been denied asylum but who cannot be returned because of the principle of non-refoulement.

10.Please indicate the number of refoulements, extraditions and expulsions carried out by the State Party during the reporting period on the basis of the acceptance of diplomatic assurances or the equivalent thereof, and any instances in which the State Party has offered such diplomatic assurances or guarantees. What are the contents of any such assurances or guarantees, whether given or received, and what measures have been taken in such cases with regard to subsequent monitoring? Please provide updated information on measures taken by the State Party to combat statelessness, including any steps taken to establish a mechanism to determine the status of stateless individuals, and to accede to the Convention on the Reduction of Statelessness, as pledged in the context of the Global Refugee Forum in 2021.

Articles 5–9

11.Noting the Committee’s previous concluding observations, please provide updated information on any legislation or measures that have been adopted to implement article 5 of the Convention. Please inform the Committee of any extradition agreements concluded with other States Parties and indicate whether the offences referred to in article 4 of the Convention are included as extraditable offences in such agreements. Please also describe the measures taken by the State Party to comply with the obligation to extradite or prosecute (aut dedere aut judicare) during the period under review, and cases where this principle has been applied, if any. Please clarify the mutual judicial assistance treaties or agreements that the State Party entered into with other entities, such as countries, international tribunals or other international institutions, during the reporting period, and whether such treaties or agreements have led in practice to the transfer of any evidence, or the provision of any other forms of assistance, in connection with investigations or prosecutions concerning torture and ill-treatment. Please provide examples.

Article 10

12.Taking into account the Committee’s previous concluding observations, please provide up-to-date information on the training and educational programmes developed by the State Party to ensure that all public officials involved in the custody, interrogation or other treatment of persons deprived of their liberty, including law enforcement officials, prison staff, border guards and members of the military, are fully aware of the provisions of the Convention and know that breaches will not be tolerated and will be investigated, and that any offenders will be prosecuted. Please indicate whether the State Party has developed a methodology to assess the effectiveness and impact of training and educational programmes in reducing the number of cases of torture, ill-treatment and excessive use of force and, if so, please provide information on the methodology.

13.Please provide detailed information on any training programmes for judges, prosecutors, forensic doctors and medical personnel dealing with detained persons on detecting and documenting the physical and psychological sequelae of torture. Please indicate whether such programmes include specific training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), as revised.

14.Please indicate the measures taken to give effect to the provisions of article 10 (2) of the Convention. Please explain whether clear instructions concerning the prohibition of torture and ill-treatment are included in the relevant regulations, in particular those intended for officials in contact with persons deprived of their liberty. Please also indicate whether specific information on non-coercive investigation techniques is included in the training of public officials involved in the custody, interrogation or treatment of persons deprived of their liberty, and whether the State Party has considered incorporating the Principles on Effective Interviewing for Investigations and Information-Gathering (the Méndez Principles) into such training.

Article 11

15.Please update the Committee on the procedures in place for ensuring compliance with article 11 of the Convention. Please provide information on any interrogation rules, instructions, methods and practices, and arrangements for custody, and indicate the frequency with which they are reviewed.

16.With reference to the Committee’s previous concluding observations, please provide updated statistical data, disaggregated by the place of detention, sex, age group (minor/adult), and ethnicity or nationality of detainees, on the capacity and occupancy rate of all places of detention, including in Dukwi Refugee Camp and the Francistown Centre for Illegal Immigrants, and on the number of pretrial detainees and convicted prisoners in detention. Please provide updated information on the average length of pretrial detention in the State Party and the existence and prevalence of alternative, non-custodial measures. Noting the findings of the Working Group on Arbitrary Detention regarding the mixing of pretrial detainees with convicted prisoners, and the mixing of women and girls deprived of their liberty, please provide updated information on the measures taken to ensure the separation of men from women, pretrial detainees from convicted prisoners and adults from minors in all places of detention, including in immigration detention, except in cases where family members are housed together.

17.Please indicate what steps were taken during the reporting period to ensure adequate living conditions, hygiene and sanitation in all places of detention, and to provide sufficient and appropriate food, a minimum number of educational and leisure activities, adequate medical assistance and access to medicines in prisons and immigration detention centres. Please indicate the measures taken to address the needs of women deprived of their liberty, in particular pregnant women and women with children, and clarify whether women are guarded by female personnel in all places of detention. Please provide information on the regime governing prisoners’ contact with the outside world, in particular with regard to family visits and communication with relatives and lawyers.

18.Please provide updated information on the disciplinary system in places of detention and indicate whether there is a procedure that guarantees due process and an independent body that reviews the disciplinary measures taken. Please clarify the current policy regarding the use of solitary confinement for both women and men, and the application of means of restraint to prisoners. In particular, please provide information: (a) on the maximum duration, in law and in practice, of solitary confinement; (b) on the measures in place to ensure that solitary confinement is not imposed on children in conflict with the law or on persons with intellectual or psychosocial disabilities; and (c) on whether a register of disciplinary penalties is kept in all places of detention, who has access to such registers and whether the proportionality of penalties is monitored. Please provide disaggregated data, including data disaggregated by sex, on the number of instances in which corporal punishment was administered as a disciplinary sanction in places of deprivation of liberty during the reporting period, along with information as to whether medical examinations are carried out before and after its administration and the procedures followed.

19.Please provide updated information regarding access to healthcare in detention, including the number of medical staff and their training. Please provide information regarding the number of individuals in detention living with chronic illnesses or infections, such as HIV/AIDS, hepatitis and tuberculosis, along with information regarding their long‑term treatment and care, and a description of the measures that are in place to prevent the spread of infectious diseases. Please indicate whether medical examinations are routinely carried out at the time of admission to detention centres and describe the procedure by which it is assured that medical personnel can document and report signs of ill-treatment without risk of reprisals. Taking into account the previous recommendations of the Committee, please provide updated information regarding deaths in custody, including data disaggregated by age, sex and cause of death. Please provide information on the manner in which those deaths were investigated, the results of those investigations, and the measures taken to prevent similar cases from occurring in the future. Please indicate the extent to which relatives of deceased persons received compensation in any of the cases. If no deaths in custody occurred during the reporting period, please describe the procedures in place in the event such deaths occur. Please inform the Committee as to whether forensic examinations in cases of deaths in custody are carried out by an independent body, along with information regarding any steps taken to incorporate the Minnesota Protocol on the Investigation of Potentially Unlawful Death into the State Party’s investigatory procedures. Please also inform the Committee as to whether, in cases of suicide or attempted suicide, independent investigations into the causes of death are carried out which examine, inter alia, the causal links that may exist between the conditions of detention, including the application of restraints and/or solitary confinement, and the death under investigation, along with information regarding the strategies and programmes in place for the prevention of suicide and self-harm and the mechanisms by which their effectiveness is assessed.

20.Please provide relevant information on treatment in psychiatric settings in the State Party. Please inform the Committee as to whether the envisaged mental health act has been passed into law. Please provide information regarding legislation or procedures that exist that may result in an individual’s involuntary hospitalization, and regarding procedures for the review and appeal of decisions in this regard. Please also provide information on the measures in place to provide alternative family- and community-based care options for children deprived of their family environment and for persons with intellectual or psychosocial disabilities. Please inform the Committee of any legislation, policies or procedures in place relating to the use of physical and chemical restraints in psychiatric settings.

21.With reference to the Committee’s previous concluding observations, and the follow-up information provided by the State Party, please indicate the measures taken by the State Party during the reporting period to ensure that asylum-seekers and undocumented migrants are detained only as a last resort, where necessary and for as short a period as possible, and measures to further implement alternatives to detention in law and in practice. Please provide up-to-date information on the number of asylum-seekers and undocumented migrants apprehended and detained during the reporting period, along with information on the average period of detention, the reasons for their apprehension and the outcomes of their cases. Please provide information on steps taken to ensure that asylum-seekers and undocumented migrants detained because of their immigration status have access to an independent and effective mechanism for addressing complaints. Please inform the Committee of steps taken to ensure that recognized refugees may live freely in the community and access income-generating activities and that individuals with unsuccessful asylum applications who may not be returned to their countries due to the existence of substantial grounds for believing that they would be in danger of being subjected to torture, including individuals termed as “prohibited immigrants” under the Immigration Act, are not indefinitely detained and that they have access to long-term and sustainable living solutions outside of detention. In the light of concerns raised by the Working Group on Arbitrary Detention, and the Committee’s previous recommendations, please provide information on steps taken to ensure that unaccompanied and separated children, and families with children, are not detained solely because of their immigration status. Please inform the Committee as to whether the Office of the United Nations High Commissioner for Refugees has unimpeded access to all persons of interest, including those held in the Francistown Centre for Illegal Immigrants.

Articles 12 and 13

22.Please provide updated, disaggregated information on the number of complaints, investigations, prosecutions and convictions relating to acts of torture or ill-treatment in the period under review, along with information on the sentences handed down in cases where alleged perpetrators were found to be guilty.

23.Please provide updated information regarding the measures taken to ensure that individuals who allege that they have been subjected to torture or cruel, inhuman or degrading treatment or punishment have the right to complain and to have their case promptly and impartially investigated. In this regard, please update the Committee on specific complaints mechanisms available to individuals alleging torture and ill-treatment in the State Party and how such mechanisms function in practice, both inside and outside of detention; the body or bodies responsible for the investigation and prosecution of such allegations; whether such bodies are mandated to carry out ex officio investigations; and the measures taken to ensure the independence of such body or bodies. In relation to the investigation of allegations submitted to the Director of Public Prosecutions, please update the Committee as to whether the investigatory body used is institutionally and hierarchically independent from the police. More generally, please update the Committee on any efforts made to establish independent oversight bodies with a specific mandate to investigate allegations of torture or ill-treatment by law enforcement officers. Noting the mandates of the Ombudsman institution, disciplinary boards established under the Botswana Police Act, and the Defence Council under the Botswana Defence Force Act to consider allegations of torture and ill-treatment, please provide information on these bodies’ interaction with prosecutorial authorities in cases where torture or ill-treatment is suspected or found to have occurred. Please also update the Committee on the existence of any legal provisions for the protection of families of victims, witnesses and investigators against any form of intimidation or reprisal arising as a consequence of complaints submitted.

Article 14

24.Noting the Committee’s previous concluding observations, please provide updated information on redress and compensation measures, including means of rehabilitation, ordered by the courts or other State bodies, and on the extent to which such redress and compensation was actually provided to victims of torture or their families during the period under review. Please include disaggregated data on the number of requests for compensation that have been made, the number granted and the amounts ordered and actually provided in each case. Please also provide updated information on any ongoing reparation programmes, including for the treatment of trauma and for other forms of rehabilitation, provided to victims of torture and ill-treatment, and on the material, human and budgetary resources allocated for their effective functioning. Please inform the Committee of any efforts to exclude actions for compensation and other forms of redress in relation to acts of torture and ill-treatment from the provisions of the Prescriptions Act. Please also inform the Committee as to whether compensation and other forms of redress may be granted in cases where perpetrators have been acquitted or where the perpetrator remains unknown, but torture or ill-treatment was confirmed to have occurred. Please update the Committee on the State Party’s collaboration with non-governmental organizations on the provision of rehabilitative services for victims, including psychosocial and medical services. Are such services also provided by the authorities of the State Party?

Article 15

25.Given that section 228 of the Criminal Procedure and Evidence Act of 1939 prohibits the admissibility of confession statements into evidence if it is determined that the statement was not freely and voluntarily made, and bearing in mind the Committee’s previous concluding observations, please provide information on the specific measures that have been adopted to ensure that the principle of inadmissibility of evidence obtained through torture or ill-treatment is observed in practice, including for statements made as a result of torture that are not themselves “confessions” and for cases in which evidence has been introduced of statements favourable to a defendant. Please provide examples of any cases that have been dismissed by the courts owing to the introduction of evidence or testimony obtained through torture or ill-treatment.

Article 16

26.Taking into account the Committee’s previous concluding observations,please provide updated information on any discussions in the State Party in relation to the abolition of mandatory capital sentencing and the establishment of a de facto or de jure moratorium on the death penalty, with a view to its abolition, including information regarding any discussions relating to the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Please further provide the Committee with detailed and updated information on the number and types of offences that carry the death penalty, the number of persons sentenced to death, the number of those executed, the means of execution used and the number of sentences commuted during the reporting period. With reference to the information provided by the State Party in its report on follow-up to the Committee’s recommendations, and taking into account the views of the African Court on Human and Peoples’ Rights with regard to permissible means of execution, as set out in Rajabu and o thers v. United Republic of Tanzania, and those of the Committee, that the conditions of detention of detainees convicted of capital crimes and the manner in which death penalties have been carried out in the State Party, in and of themselves, constitute cruel, inhuman or degrading treatment, please provide information on steps taken to improve conditions of detention for individuals on death row and to provide adequate information and notice to members of prisoners’ families prior to their execution.

27.With reference to the Committee’s previous concluding observations, please provide updated information regarding legislative initiatives to prohibit corporal punishment in all settings, including initiatives to review and amend section 28 of the Penal Code, section 305 of the Criminal Procedure and Evidence Act and sections 27, 61 and 85 of the Children’s Act, 2009, as well as relevant provisions of the Education Act of 1967, the Education (Corporal Punishment) Regulations of 1968, the Education (Government and Aided Secondary Schools) Regulations, 1971, the Education (Primary Schools) Regulations, 1980, the Education (Private Primary Schools) Regulations, 1991, the Prisons Act, the Prisons Regulations of 1965, the Magistrates’ Courts Act, 1974, the Customary Courts Act of 1961, the Corporal Punishment Regulations, 1969 (criminal procedures), the Corporal Punishment (Designation of Places for Administering) Order, 1983 and the Customary Courts (Corporal Punishment) Rules of 1972, as they relate to corporal punishment. Please also provide updated, detailed, and disaggregated statistics, including by age and sex, regarding the means and methods of administering corporal punishment, the number and types of criminal offences for which corporal punishment may be imposed, the number of persons criminally sentenced to corporal punishment, and the number of persons to whom corporal punishment was administered subsequent to their conviction during the reporting period. In addition, please provide information on steps taken to ensure that customary courts operate fully in line with international standards, including as regards the administration of sanctions.

Other issues

28.Please provide updated information on the measures taken by the State Party to respond to the threat of terrorism. Please describe whether and how those measures may have affected human rights safeguards in law and in practice. Please also describe how the State Party has ensured that counter-terrorism measures are compatible with all its obligations under international law, especially the Convention, and provide information on any initiatives undertaken to bring the provisions of the Counter-Terrorism Act of 2014 into conformity with international standards by ensuring that individuals are presented before a judicial authority within 48 hours of their apprehension. Please indicate what training is given to law enforcement officers in this area; the number of persons who have been convicted under legislation adopted to combat terrorism; the legal remedies and safeguards available in law and in practice to persons subjected to counter-terrorism measures; and whether there have been complaints of the non-observance of international standards and, if so, what the outcome was.

General information on other measures and developments relating to the implementation of the Convention in the State Party

29.Please provide detailed information on any other relevant legislative, administrative, judicial or other measures taken to implement the provisions of the Convention. Such measures may include institutional developments, plans or programmes. Please indicate the resources allocated and provide statistical data. Please also provide any other information that the State Party considers relevant.