Towards Complementarity in Botswana

• Jurisdiction: South Africa
• Author: Elizabeth Macharia-Mokobi
• Published date: 22 August 2019
• Date: 22 August 2019
• Citation: (2011) African Yearbook on International Humanitarian Law 151
• Pages: 151-165

151

Towards Complementarity

in Botswana

Elizabeth Macharia-Mokobi*

1 INTRODUCTION

For several years, Botswa na’s rhetoric on the Africa n stage in support of

the International Criminal Court (ICC) has been singular. It may come

as a surprise to many to learn that although Botswana has ratif‌ied the

Rome Statute of the ICC, it has yet to domesticate the Stat ute. Botswana

has capacity under the Geneva Conventions Act to try grave breaches of

the Geneva Conventions and yet the goal of domestication of the Rome

Statute, which should not be a huge leap from the Geneva Conventions

Act, has eluded Botswana for over 10 years since she ratif‌ied the statute.

Botswana beca me a State Par ty to t he Rome Statute on 8 December

2000.1 Since then Botswana has been one of the most vociferous

supporters of the ICC on the African continent. In 20 09, in the face

of opposition from the African Union (AU), Botswana maintained its

support for the arrest warrant against Sudan’s President Omar Hassan

Al Bashir.2 In recent months, Botswa na also voiced its support for the

arrest warrant issued by the ICC against Muammar Gaddaf‌i – even in

the face of widespread opposition to the warrant from Africa.3 During a

recent visit to Botswana,4 ICC Deputy Prosecutor Fatou Bensouda noted

* LLB (UB); LL M (Cambridge); Doctoral Candidate (U P); Lecturer, Depart ment of

Law, University of Botswana. e lizabeth.mokobi@mopipi.ub.bw

1 Available at <http://www.iccnow.org/?mod=country&iduct=23> (accessed on 5

October 2011).

2 See statements by Botswana’s Vice President at the 13th Ordinar y Session of the

Assembly of the African Union 24 June – 3 July 2009 Sirte Great Socialist People’s

Libyan Arab Jamahir iya, available at <http://www.gov.bw/en/News/Botswana-

stands-by-the-International-Criminal-Court-/> (accessed on 6 O ctober 2011).

3 See statement in supp ort of Gaddaf‌i ar rest warra nt from Ministry of Foreign

Affairs and International Cooperation dated 5 July 2 011, available at <htt p: //w ww.

mofaic.gov.bw/index.php? option= com_content &view= artic le&id =653: botsw

ana-supports-the-warrent-of-arrest-issued-by-icc&catid=8:latest&Itemid=95>

(accessed on 6 Octobe r 2011).

4 On 12 July 2011, Ms Fatou Bensouda pa id a visit to Botswana’s President Seretse

Khama Ian Khama. The purpose of the visit was to cong ratulate B otswana

for suppor ting the work of the ICC and the arrest warrant against Muamma r

Gaddaf‌i. Available at Mini stry of Foreign Affairs a nd International Cooperation

Botswana webpage

content&vie w=ar ticle& id= 655:icc-lauds –botswa na&catid =8 :latest& Itemid= 9

5> (accessed on 6 Octob er 2011).

(2011) African Yearbook on International Humanitarian Law 151

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152 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

Botswana’s public stance in support of the ICC, stating that Botswana’s

pronouncements showed her commitment to international law and to

the Rome Statute.

The staunch support Botswana has offered the ICC has not been

without criticism. Some commentators have protested Botswana’s

commitment to the Court and suggested that Botswana is blind to the

fact that the ICC is biased against Africa – to date, it has only charged

African defendants.5 A sober eva luation of the facts reveals t hat the

ICC can only adjudicate cases referred to it by States Parties or by the

Security Council or cases which t he prosecutor receives authorisation

to investigate proprio motu. The situations in Uganda, the Democratic

Republic of the Congo (DRC) and the Central A frican Republic were

referred to t he ICC by the above-mentioned states themselves. The

Security Council referred the situations in Sudan and Libya to the ICC,

and pre-trial chambers authorised investigation in Kenya and the Ivory

Coast at the request of the prosecutor, acting proprio motu.6 C riticisms

based on the idea that the Court lacks objectivity appear unsupportable

on the ev idence and are therefore unfounded.7 Du Plessis emphasises

that Africa has already shown great commitment to the ICC from

its inception. Many of the objections to the Cour t were triggered by

the arrest warrant issued against Omar al-Bashir that challenged the

long-held belief that indicting a head of state was an affront to state

sovereignty. Du Plessis argues that this belief is outdated. Du Plessis

advocates greater civic education about the role and the work of the

ICC on the continent, arguing that continued African support for t he

ICC is essential for eliminating i mpunity on the continent.

In spite of Botswana’s stated commitment to the ICC, the Rome Statute

remains undomesticated and Botswana’s capacity to try international

crimes is extremely narrow. The purpose of this article is to inquire

into the cur rent capacity of Botswana to try international c rimes and

her future prospects for domestication of the Rome Statute. The article

begins by discussing Botswana’s support for the ICC and the end of

impunity for international crimes as evidenced by political statements

in support of the Court. Next, the paper considers t he reasons for

Botswana’s failure to domesticate the Rome Statute to date and considers

the legal constraints that act as impediments to implementation. The

paper outlines possible means through which such legal constraints

could be overcome by enhancing existing legislation so that Botswana

could achieve complementarity.

5 ICCwatch Press Release 19 Ma rch 2010, available at <http://ww w.iccwatch.org/

pressrelease_19mar10.htm> (accessed on 5 O ctober 2011).

6 Ava il ab le a t < http://ww w.icc-cpi.int/Menus/ICC/ Situations+and +Cases/> (accessed

on 5 October 2011).

7 See Max du Plessis The International Criminal Court Af rica Wants (2010) 19-81 for

a full disc ussion on common objections of Africa to t he ICC.

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TOWARDS COMPLEME NTARITY IN BOT SWANA 153

2 DUALISM AND THE REQUIREMENT OF

DOMESTICATION

Dualism treats international law and municipal law as separate spheres

of law.8 In order for international obligations undertaken by states by

way of treaty to form par t of national laws, dualism propounds that

the international law rules would have to be transformed into national

law rules though the use of enabling legislation.9 Enabling legislation

simply gives effect to the international rules on a municipal level

creating enforceable rights and duties.

Botswana is a dualist state. In order for international treaties that

Botswana has ratif‌ied to form part of Botswana’s national laws, there is

a requirement of domestication.10 Tshosa characterises the ratif‌ication

of a treaty in a dualist country as a ‘purely executive act’.11 The

domestication of treaties gives the legislature the opportunity to endorse

the treaty rules that will, from the point of domestication onwards,

affect the rights and liberties of individuals in the jurisdiction.12

The next question would then be, what is the status of undomesticated

treaties in Botswana? Answering this question will give some sense

of the distance that the Rome Statute must cover before it creates

enforceable rights and duties in Botswana. The Botswana courts have

had an opportunity to pronounce on this point in Kenneth Good v The

Attorney General,13 where Tebbutt JP noted:

Botswana … is a signator y to a number of international t reaties. It is trite

and well recognised t hat signing such a treaty does not give it the power of

law in Botswana and its provisions do not form part of the domestic law of

this country unti l they are passed into law by parliament. Those treaties do

not confer enforceable rights on indiv iduals within a state.

A fu rther u nderstanding of the place of an undomesticated treaty in

Botswana’s law can be obtained from s 24 (1) of the Interpretation Act,14

which provides that Botswana’s courts may have regard to any relevant

international treaty agreement or convention for purposes of discovering

the purpose of any enactment and as an aid to the construction of any

enactment.

The import of the words of Tebbutt JP in Kenneth Good, and of s 24 (1)

of the Interpretation Act, with respect to the Rome Statute, is clear. For

8 OB Tshosa ‘The status and role of i nternational law in the national law of

Botswa na’ in CM Fombad (ed) Essays on the Law of Botswana (2008 ) 229-246 at

230.

9 Ibid at 234-235.

10 Ibid at 237.

11 Ibid at 234.

12 Ibid at 235.

13 Botswana Cour t of Appeal 2005 (2) BLR 337 (CA) at 345-3 46.

14 The Laws of Botswana Chapter 01:04, available at .bw/EIS /

Policies/Envi ronmental%20Policies/I nterpretation%20Act.pdf> (accesse d on 31

July 2012).

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154 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

so long as the Rome Statute does not form part of the domestic laws of

Botswana, it does not confer any enforceable rights or attendant duties

in Botswana. Its value is a mere aid to interpretation of other laws.15

There is a clear disconnect and a wide chasm between Botswana’s

rhetoric in support of the ICC and Botswana’s capacity to prosecute

international crimes. Indeed, it is a matter for concern that 10 years after

the ratif‌ication of the Rome Statute, Botswana has yet to domesticate it.

Whilst Botswana suggests willingness and readiness to support the ICC

in its mandate, she is currently hamstrung from exercising effective

complementarity or cooperation with the ICC by her current laws.

The principle of complementarity is central to the jurisdictional

structure of the ICC. The principle provides that states have the primary

responsibility to investigate and prosecute international crimes within

their jurisdiction.16 The ICC’s role is effectively to f‌ill in the gap where

states are unable or unwilling to prosecute international crimes. The

effect of this arrangement is that states have the duty to ensure that

their laws give them capacity to try international crimes so that the ICC

is not standing in for national jurisdictions but is in fact supplementing

the ef forts of States Parties to end impunity for international crimes

by prosecuting where no state can prosecute. Where the ICC takes on

prosecutions, it requires the cooperation of States Parties in bringing

perpetrators of international crimes to book.

Cooperation envisages a state being able to assist the ICC to exercise its

jurisdiction by making available to the Court the necessary recognition

of its off‌icers and warrants as well as assisting in apprehension of

suspects, i nvestigation, collation of evidence, as well as identif‌ication

of, and protection of, victims. Botswana is currently unable to claim

full complementarity and full capacity to cooperate with the ICC from

a legal perspective.

The next sections consider Botswana’s c urrent capacity to try

international crimes and t he challenges to domestication of the Rome

Statute.

3 CURRENT CAPACITY TO TRY INTERNATIONAL

CRIMES

3.1 Grave Breaches of the Geneva Conventions

Botswana domesticated the four Geneva Conventions relative to the

treatment of the wounded and sick, prisoners of war and civilians in

15 For similar f‌inding s see Botswana Court of Appeal AG v Unity Dow 1992 BLR 119

(CA) at 152, wher e the court ruled that inter national treaties a nd conventions

can be referre d to as an aid to interpretation.

16 William A S chabas An Introduction to the Inter national Criminal Court (2001) 67.

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TOWARDS COMPLEME NTARITY IN BOT SWANA 155

1970 under her Geneva Conventions Act.17 The long title of the Act

states its aim as giving effect to the Geneva Conventions.18 Article 3

(1) of the Act gives Botswana jurisdiction to try grave breaches of the

Conventions. This is effectively jurisdiction for the commission of war

crimes and cr imes against humanity as def‌ined by the Conventions.

The jurisdiction granted to Botswana to try grave breaches is universal.

The relevant provision provides that Botswana shall have jurisdiction

over grave breaches of the Geneva Conventions committed by any

person, whatever his nationality, whether inside or outside Botswana.19

In cases where the offence was carried out outside Botswana, s 3 (2)

provides that it shall be tried and punished as if it had been committed

in Botswana. This is a unique provision of Botswana’s laws. Currently,

Botswana exercises extraterritorial jurisdiction over few criminal

acts.20

The maximum penalty for committing grave breaches of the

Geneva Conventions involving w ilful killing is death. 21 In the case

of any other grave breach, the pena lty is a maximum term of 14 years

imprisonment. Botswana still retains and utilises the death penalty.22

The continued v iability of this penalty in relation to international

crimes given advances in human rights law in the past 30 years shall

be disc ussed below. Jurisdiction for trying these offences is vested in

the High Court.23

Section 5 of the Act provides the right to legal representation to

persons charged w ith grave breaches of the Geneva Conventions. The

right to legal representation under the Geneva Conventions Act is more

secure than that offered the ordinary accused person in other cases,

save for murder and treason, in Botswana. Notably, the right to legal

representation for an acc used person in Botswana is not absolute.24

Where the accused cannot afford a n attorney,25 the accused’s trial

may proceed without an attorney and he would be obliged to represent

himself. It is only in cases attracting the death penalty in Botswana,

17 The L aws of Botsw ana Chapter 39 :03, available at .bw/

desplaylrpage1.php?v=VI &vp= &id=937> (accessed on 31 July 2012).

18 ‘An Act to enable effect to be given in Bot swana to certa in inter national

conventions made at Geneva on the twelfth day of August, nine teen hundred

and forty nine, a nd for purposes connected therew ith.’

19 Section 3 (1).

20 Most of fences ex tending jur isdiction extraterritorially, such as tre ason (s 34

Penal Code) and piracy ( s 62 Pen al Code), usually require the connection of

nationality.

21 Section 3 (1) i.

22 Section 3 (1) ii.

23 Section 3 (3 ) and 3 (5) e xclude the magistrates court and the cou rt-martial

expressly. This implies that t he court of f‌i rst instance must be the High Court

although no direc t mention is made of this court in s 3.

24 Botswana H igh Court Tshukudu v Th e State 20 00 (1) BLR 400 (HC); Botswan a

High Court Makhu ra and Another v The State 1991 BLR 104 (HC).

25 Botswana High Cour t Maphane v The State 1991 BLR 313 (HC).

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156 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

namely murder, treason and piracy, where the accused has a right to a

pro deo attorney where he cannot afford one.

3.2 Genocide

In contrast to the above, the Geneva Conventions Act provides that the

trial of an accused person shall not proceed unless he is represented by

an advocate or attorney who has had at least 14 days to prepare for

the matter. The mandatory nature of the language of the Act seems to

suggest that the right to legal representation for persons charged with

grave breaches of the Geneva Conventions is absolute.

To date there have been no prosecutions in terms of the Geneva

Conventions Act. However, it is important to note that Botswana

domesticated this Act in 1970 when her political and economic

inf‌luence in the region was much less than it is today. The fact that this

enabling legislation was enacted speaks highly of Botswana’s enduring

commitment to international humanitarian law (IHL) but a lso begs

the question, why the delays in enacting enabling legislation for the

Rome Statute?

Botswana is a State Party to the Genocide Convention. Article 5

of the Genocide Convention requires that all States Parties enact

enabling legislation to give effect to the treaty. However, as with many

of the treaties that Botswana has ratif‌ied, no enabling legislation has

been passed in respec t of this Convention. The crime of genocide is

therefore unknown in Botswana’s law and would have to be legislated

upon from scratch.

The next section considers the challenges to domestication of the

Rome Statute.

4 CHALLENGES TO DOMESTICATION

Lee Stone’s contribution to the Institute of Security Studies (ISS) study

into domestic implementation of the ICC statute in selected A frican

Countries (the ISS Study)26 noted that Botswana had a fair chance of

implementing the Rome Statute by about 2010.27

The ISS Study identif‌ied three explanations for Botswana’s failure

to implement the Rome Statute. These are: f‌irst, lack of capacity on

the issue of implementation of treaties; secondly, lack or expertise and

resources in the Attorney General’s Chambers; and, lastly, a sense that

the domestication of the Rome Statute was not a priority at present for

the Botswana Government.28

26 Lee Stone ‘Country Study 1: Botswa na’ in M du Plessis and J Ford (e ds) Unable

or Unwilling, Case Studies on Do mestic Implementation of the ICC Statute i n Selected

African Countr ies (ISS Monograph series no 141 March 2008 ).

27 On a scale of unli kely – low – fair – good – highly likely. Ibid at 20.

28 Ibid at 24.

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TOWARDS COMPLEME NTARITY IN BOT SWANA 157

Certainly, the three reasons propounded by the ISS study explain

the delay in domestication. It is an observable fact that Botswana

does not, in many cases, domesticate international treaties or comply

with reporting requirements with respect to human rights treaties.29

It is submitted that until the Attorney General’s Chambers has greater

capacity in terms of dedicated staff members, coupled with civil society

advocates for implementation of international instruments ratif‌ied by

Botswana, this constraint will continue to aff‌lict Botswana.

Secondly, lack of expertise and resources has been argued as a reason

for failure to domesticate the Rome Statute. This could very well be

the case. However, Stone observes that capacity building thorough

training government attorneys on implementation is ongoing a nd,

further, that Botswana could avail herself of technical expertise on

domestication at the time of domestication.30 Given the fact that the

Geneva Conventions Act is in existence however, one would imagine

that it would not be terribly diff‌icult to amend the Act suitably in order

to expand its capacity to accommodate the requirements of the Rome

Statute.

The last reason propounded by the ISS Study is lack of priority.31

Government is the driver of legal change in Botswana in the absence

of a law reform body and strong civil society advocates. Government

legislative priorities would therefore directly inf‌luence the domestication

of the Rome Statute. Given the political stability i n Botswana and the

increasing stability in the reg ion relative to the situation 30 years ago

when the Geneva Conventions Act came in to law, it may be argued

that the political impetus for enacting enabling legislation is moderate.

However, the international obligation of complementarity in order to

end impunity for wa r crimes should be a suff‌iciently high motivation

for domestication of the Rome Statute.

29 Ditshwanelo, Botswana’s lead ing human rights advocacy organisation, notes

that

‘… although Botswana has sig ned, ratif‌ied or acceded to many international

and regional inst ruments, thes e principles are f requently not enshrined in

legislation and therefore not legally bi nding. The Government of Botswana

also has a poor reporting record in regard to many of the international treatie s

or conventions to which it is a party. Speci f‌ically, Botswana has a history of

failing to f‌ile reports in a timely manner to the treaty bodies which monitor the

Convention against Torture, the International Covenant on Civil and Political

Rights, the Convention on the Elimination of All Forms of Discriminat ion

against Women, and the Convention on the Rights of the Child. Additionally,

Botswana has never submitted a repor t to the African Commission. There has

been some improvement in Botswana’s reporti ng record in recent years; for

instance the government has subm itted two reports to the Committee for the

Elimination of Racial Discr imination (CERD) for consideration in 2002 and in

May 2006.’

Available at <http://www.ditshwanelo.org.bw/botswana.html#int> (accessed

on 11 November 2011).

30 Stone op cit note 26 at 23-24.

31 Ibid at 24.

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158 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

5 LEGAL CONSTRAINTS AS AN IMPEDIMENT TO

COMPLEMENTARITY

Achieving complementarity requires law reform. Some reforms are

minor, simply requir ing new legislation to give them ef fect. Other

reforms are major, affecting core principles of national criminal law.

Domestication of the Rome Statute involves ensuring state

compliance in two areas; f‌irstly, complementarity, and, secondly,

cooperation.32 Ensuring complementarity essentially means ensuring

that the state can prosec ute international crimes when committed in

its own jur isdiction.33 Cooperation usually encompasses cooperation

with the ICC in instances where the ICC is conducting investigations

with a view to t rying the offenders at the ICC.34 Without enabling

legislation, it becomes virtually impossible for the ICC to investigate a

matter, apprehend suspects, secure evidence and witnesses, and ensure

protection of victims and witnesses. This article foc uses on the f‌irst

requirement of complementarity. Amnesty International su mmarises

the requirements for complementarity as follows: the def‌inition of

crimes, principles of responsibility and defences; the removal of

barriers to prosecution; and, the assurance of a fair trial.35

This paper argues the ex istence of a fourth impediment

to domestication in Botswana, which is ‘legal constraints to

complementarity’. It is submitted that legal constraints have been

and will continue to be a great contributory fac tor in the delays in

domestication. Legal constraints arise from current legal rules in the

Constitution or other statutes that w ill require vast shifts in law and

government policy and that may also require public consultation. The

legal constraints identif‌ied by the author will be examined below.

5.1 Def‌ining Crimes

As stated above, Botswana already has capacity to try grave breaches

of the Geneva Conventions under the Geneva Conventions Act.36 Wa r

crimes and crimes against humanity are therefore known crimes in

the jurisdiction. Botswana already exercises universal jurisdiction with

respect to these crimes.

It would be necessary however to review the def‌inition of these

crimes with a view to incorporating the progressive def‌initions of these

32 Amnesty International ‘International Criminal Court: Checklist for effective

implementation’ at 2 -3, available at <http://www.iccnow.org/documents/AIEffec

tiveImp.p df > (accessed on 7 October 2 011).

33 Ibid.

34 Ibid.

35 Ibid at 4-8.

36 Stone (op cit note 26 at 31) states that ICC crimes are not unknown in Botswana.

The Geneva Conventions Act does recognise grave breaches and incorporates all

four conventions into Botswana’s law.

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TOWARDS COMPLEME NTARITY IN BOT SWANA 159

crimes which are found in the ICC statute and other international

instrument s.37 Whilst this would essentially be a slight amendment,

it would offer more certainty to the nature of crimes concerned and

offer an opportunity to Botswana to include directly or by reference

the elements of the crimes.

While Botswana is party to the Genocide Convention, there is no

law in Botswana creating t he offence of genocide.38 Botswana does

have an obligation under the Genocide Convention to enact enabling

legislation. With respect to this offence, Botswana would be starting

from scratch in creating the offence, with universal jurisdiction and

def‌ining the elements of the offence.

5.2 Principles of Criminal Responsibility

Amnesty International suggests that in order to achieve complementa-

rity, principles of criminal responsibility in national law should be as

strict as those in Part III of the Rome Statute.39 These general principles

of criminal law are d iscussed below.

The principles of nullum crimen sine lege and nulla peona sine and

non-retroactivity of criminal jurisdiction form part of Botswana’s

Bill of Rights.40 These principles protect the accused person from

criminal investigation, prosecution and punishment in the absence

of a law criminalising his alleged conduct and setting a punishment

for such conduct prior to its commission. Section 10 (4) of Botswana’s

Constitution provides that the accused may not be tried for an act,

which at the time of its commission did not constitute an offence or be

sentenced to a penalty more severe than that which would have been

imposed at the time the crime was committed.

The Rome Statute provides for the requirement to prove men s rea in

order successfully to prosecute any offence under the statute.41 Men s rea

denotes the mental element of any crime, the intention formed by the

actor to commit the offence. This principle forms part of Botswana’s

common law with respect to the prosecution of all criminal offences.

Inability by the prosecution to prove the mental element of any

criminal enterprise on the part of the actor will result in an acquittal.

37 For example, Human Rights Watch notes that whilst the Rome Statute states that

it is a war crime to recruit child ren under the age of 15 into arme d forces, the

Convention on the Rights of the Child (CRC) has raised that t hreshold to 18.

States may wish to opt for the higher pr otection in terms of the CRC.

38 Stone (op cit note 26) suggests that the crime of sedition found under s 50 of the

Penal Code could cover conduct similar to that anticipated in the ICC statute.

It is submitted that this may very well not be the case because of the high

requirement for gui lty intent for the crime of genocide; that is, the intent ion to

destroy the group in whole or in part, which is simply not mirrored in the crime

of sedition.

39 Amnesty Internat ional op cit note 32 at 5.

40 Corresponding art icles of the Rome Statute are Articles 22 a nd 23.

41 Rome Statute art 30.

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160 AFR ICAN YEARBOOK ON I NTERNATIONAL HU MANITARIA N LAW

In terms of s 21 of the Penal Code, individual criminal responsibility

will be ascribed to those who commit the offence, as well as those who

enable, aid and abet, procures, or counsels others to commit offences.

This section mirrors the requirements of the Rome Statute with respect

to individual criminal responsibility for commission of an international

crime along w ith aiding or abetting the commission of such crimes.42

The principle of command responsibility for orders to commit war

crimes is a norm of customary international law applicable in both

international and non-international armed conf‌licts.43 The principle of

command responsibility for war crimes committed under the orders of

superiors forms part of Botswana’s criminal laws. T he relevant articles

of the four Geneva Conventions that apply to command responsibility

have been domesticated in Botswana in the Geneva Conventions Act.44

Naturally, the domestication of the ICC Statute is an opportunity to

rework these provisions into a single section dealing with command

responsibility covering all ICC crimes.

5.3 Available Defences

The Rome Statute recognises the following defences as excluding

criminal responsibility: insanity, intoxication, self-defence, and

duress.45 Further, mistake of fact and mistake of law may exclude

criminal responsibility where they negate the mental element of

the offence.46 Lastly, the defence of superior orders shall not exclude

criminal responsibility, except where the person under a duty to obey

did not know that the order was unlawful and the order was not

manifestly unlawf ul.47

Achieving complementarity with respect to defences will be

straightforward as Botswana recognises most defences provided for in

the Rome Statute. The Penal Code recognises the defences of insanity,48

intoxication,49 compulsion (duress),50 and self-defence.51 Mistake of

law does not exclude criminal responsibility in Botswana except where

42 Rome Statute art 25.

43 Rule 152 of ICRC Study on Customary International Humanitarian Law ( 2005),

available at

43_rule 152> (acc essed on 11 October 2011).

44 Article 49 Geneva Convention I, Article 50 Geneva Convention I I, a rt 129

Geneva Convention III, a nd art 146 Geneva Conventions IV.

45 See art 31 of the Rome Statute.

46 See art 32 of the Rome Statute.

47 See a rt 33 of the Rome Statute. Ar ticle 33 (2) provides that orders to commit

genocide and crimes ag ainst humanity are mani festly unlawful.

48 Section 11 of Laws of Botswana Chapter 08:01 (Penal Code), available at

www.vertic.org/media/National%20Legislation/Botswana/BW_Penal_Code.

pdf> (accessed on 31 July 2 012).

49 Section 12 of Penal Code.

50 Section 15 of Penal Code.

51 Section 16 of Penal Code.

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TOWARDS COMPLEME NTARITY IN BOT SWANA 161

knowledge of the law is expressly declared an element of the offence.

Similarly, mistake of fact is a complete defence where a person acts

under an honest and reasonable, but mistaken, belief of the existence

of certain facts.

The defence of superior orders is inadmissible under customary

international law where the subordinate knew the act was unlawful

or should have known because of the manifestly unlawful nature of

the act ordered.52 This defence is unknown under Botswana law and

would be the sole new addition to the group of available defences.

In order to achieve complementarity, the general principles of law

could be incorporated directly or by reference to the Penal Code and

the Constitution.

5.4 Removal of Barriers to Prosecution

5.4.1 Stat ute of limitations

Amnesty International recommends that no statute of limitations

should be permitted with respect to international crimes tried w ithin

the jurisdiction.53 This is in keeping with Article 29 of the Rome

Statute. Botswana has a statute of limitations with respect to criminal

offences. In terms of s 26 of the Criminal Procedure and Evidence Act,54

murder shall not prescribe; however, all other offences prescribe after

20 years, unless the law specif‌ically provides for some other period. It is

submitted that war crimes and crimes against humanity not involving

wilful killing should be treated under this exception to s 26. The

enabling legislation should contain a provision excluding prescription

with respect to these offences just as it does with respect to murder.

5.4.2 No amnesties, pardons or similar measures should be recognised

Amnesty International discourages the use of a mnesties and pardons

as a tool for impunity.55 Botswana’s laws provide for a presidential

pardon in the form of the prerogative of mercy. In terms of s 53 of the

Constitution, the President may grant any person a free or conditional

pardon; respite from execution of punishment; a substituted sentence

or a remission of the whole or part of his sentence. The prerogative

of merc y is exercised through the Advisory Committee on t he

Prerogative of Mercy, whose members are the Vice President or any

minister appointed by the President, the Attorney General and a

medical practitioner appointed by the President. There is no possibility

52 Rule 155 of ICRC Study op cit note 43.

53 Amnesty Internat ional op cit note 32.

54 Laws of Botswana Chapter 08:02 , avai lable at

doc/86435447/Chapter- 0802-Crimi nal-Procedure-and-Ev idence-1> (accessed

on 31 July 2012).

55 Amnesty Internat ional op cit note 32 at 6.

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162 AFR ICAN YEARBOOK ON I NTERNATIONAL HU MANITARIA N LAW

of a pardon before prosecution. It is also important to note that the

prerogative of mercy is rarely used in Botswa na a nd has never been

used in Botswana for the commutation of a death sentence. The use

of the prerogative of mercy to escape punishment for international

crimes would trigger the jurisdiction of the ICC under s 17 of the

Rome Statute. The ICC could conclude that the state was u nwilling

to prosecute, having undertaken national proceed ings for purposes

of shielding t he individual from crim inal responsibility. In achieving

complementarity, the suitability of the prerogative of mercy in relation

to international crimes would have to be reconsidered.

5.4.3 Immunities for Heads of State and diplomatic agents for

international crimes should not be recognised

Article 27 (1) of the Rome Statute provides that the Rome Statute shall

apply equally to all persons without any distinction based on off‌icial

capacity. Amnesty International maintains that it would be essential

for states wishing to investigate and prosecute the commission of

international crimes under national law to eliminate immunities based

on off‌icial capacity.56

The Constitution of Botswana grants to the president absolute

immunity against criminal prosecution while he performs the functions

of the off‌ice of the President for all activities done in both his private and

off‌icial capacity. The same provision grants him absolute immunity in

civil suits for activities done in his private capacity.57 The parameters

of presidential immunity were tested in the Gomolemo Mostwaledi

case,58 where the High Court and later the Court of Appeal conf‌irmed

the head of state’s constructional immunity from suit. Departing from

this principle may indeed prove to be a legal constraint. T he point

was hard fought in the Mostwaledi case and the Court of Appeal has

ruled def‌initively on the absolute nature of presidential immunities in

Botswana.

The Geneva Conventions Act gives Botswana universal jurisdiction

over grave breaches of the 1949 Conventions with no reservations

for head of state immunity or diplomatic immunity. The immunity

afforded the head of state under the Constitution has been ruled to be

absolute by the Court of Appeal. It is submitted therefore that under

Botswana law, the universal nature of s 3 of the Geneva Convention

Act would be limited by the head of state’s constitutional immunity

from prosecution. The Court of Appeal’s ruling in the Mots waledi case

is in keeping with such this summation.

At international law, however, inroads continue to be made that

limit immunity of a head of state in cases where they have committed

56 Ibid at 7.

57 Section 41 of the Const itution.

58 Botswana High Cou rt MAHLB 0004 86 – 09 (Unreported).

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TOWARDS COMPLEME NTARITY IN BOT SWANA 163

international crimes. Jurists argue that in such instances, the grave

nature of the crimes would disqualify the head of state from asserting

that such actions were off‌icial acts and therefore open him up to

prosecution.59

In the face of the Court of Appeal’s ruling and t he constitutional

immunity afforded to Botswana’s head of state, it remains to be seen

what position Parliament will adopt with respect to the domestication

of s 27 (1) of the Rome Statute, in particular whether a constitutional

amendment may be required to clarif y the law.

5.5 Ensuring a Fair Trial

5.5.1 The rights of the accused to a fair trial in Botswana

The accused person in Botswana enjoys an expansive array of rights

all encompassed under the const itutional right to protection of the

law guaranteed by s 10 (1) of the Constitution. In Ahmed v The Attorney

General,60 the court held that the right to a fair trial encompasses

compliance with rules of procedure, principles of law as well as the

opportunity for the accused to present his defence properly and f ully.

The accused is also entitled to the following procedural safeguards in

terms of s 10 of the Constitution: the right to a trial within a reasonable

time; the right to a tria l before an independent and impartial court;

the presumption of innocence; the right to be informed of the nature

of the charge in a language he understands; the right to adequate time

and facilities to prepare his defence; the right to legal representation;

the right without payment to the assistance of an interpreter; the right

to remain silent; the right to a trial in his presence; the right to a copy

of the judgment and the record of proceedings; t he right to a trial in

public; and, protection from double jeopardy.

These rights are extensive and adequately protect the accused charged

with an offence before the Botswana courts. Procedural safeguards in

Botswana also meet international fair tr ial standards as set out in the

International Covenant on Civil and Political Rights and Ar ticles 55,

62–68 of the Rome Statute. Complementarity with respect to the rights

of the accused person is therefore immediately achievable.

59 For a full discussion of developments in the law regarding immun ity of heads of

state see Jamison G White ‘Nowhere to run, nowhere to hide: Augusto Pinoc het,

universal jurisdict ion, the ICC, and a wake-up ca ll for former head s of state

(1999) Case Western Rese rve Law Journal 127 and Gilbert Sison ‘A king no more:

the impact of the Pi nochet decision on the doctrine of head of st ate immunity’

(2000 ) 78:115 Washington University La w Quarterly 1583.

60 Botswana Court of Appeal 2002 (2) BLR 431 (CA) at 444 citing the South African

case S v Majavu 1994 (4) SA 268 ( Ck) with approval.

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164 AFR ICAN YEARBOOK ON I NTERNATIONAL HU MANITARIA N LAW

5.5.2 The death penalty

The death penalty is the punishment afforded to the offence of murder

without extenuating circumstances, treason and piracy in Botswana. In

terms of Article 77 of the Rome Statute, the maximum penalty that the

court can impose is life imprisonment when justif‌ied by the extreme

gravity of the crime and the personal circumstances of the convicted

person. On the other hand, Article 80 of the Rome Statute gives to

states a free hand to impose whatever pena lty they see f‌it, stating that

the provisions of the Rome Statute shall not affect penalties prescr ibed

by national law.

Advocates for the ICC campaig n against the imposition of the

death penalty for commission of international crimes. Amnesty

International has taken the position that it would be inappropriate for

national courts to impose a more severe penalty than that imposed by

international law for the same crime. The ad hoc tribunals for Rwanda

and Yugoslavia both excluded the death penalty, as did the special

court in Sierra Leone.

The exclusion of the death penalty for international crimes in

order to observe international norms will f‌ly in the face of Botswana’s

continued use of the penalty for all convictions for murder without

extenuating circumstances. The exclusion of the death penalty for

international crimes would trigger a constitutional crisis. Genocide,

war crimes and crimes against humanity are ser ious crimes, which

should logically attract a similar – or heavier – penalty than murder.

Opposition to the death penalty by human rights organisations in

Botswana is ongoing. Ditshwanelo notes that since 1966, 38 people

have been executed.61 Ditshwanelo continues to advocate against the

death penalty on the basis that it is cruel and inhuman punishment.62

Jurists have also characterised it as anachronistic when set against

Botswana’s progressive human rights record and long-held commitment

to democratic ideals.63

The Johannesburg High Court recently ruled in Emmanuel Tsebe

and Another v the Minister of Home Affairs and Another, that Botswa na’s

retention of the death penalty ‘is out of synchrony with the trend world

wide to abolish the death penalt y’, and, that Botswana’s history of

‘secret executions’ and clemency provisions failed to induce conf‌idence.

Further, concerns as to the quality and fairness of Botswana’s judicial

system served as good reasons to refuse to extradite suspects for trial for

61 Available at <http://ww w.ditshwanelo.org.bw/ death_p enalty.html> (accessed

on 11 October 2011).

62 Ibid.

63 O B Tshosa ‘The death penalty in Botswana in light of international law’ 7, paper

presented at the 1st International Conference on the Application of the D eath

Penalty in Commonwea lth Africa, Entebbe Uganda 10–11 May 2004 .

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TOWARDS COMPLEME NTARITY IN BOT SWANA 165

capital offences to Botswana.64 These allegations were strongly rebuffed

by Botswana’s Attorney General.65 The South African Constitutional

Court upheld the decision of the High Court, stating that:

… the Gover nment has no power to extradite or deport or in any way

remove from South Africa to a retentionist State a ny person who, to its

knowledge, if deported or extradited to such a State, will face the real risk of

the imposition and execution of the de ath penalt y.66

Abolition of the death penalty in Botswana would more likely than

not require the mandate of the people – possibly through a referendum

on the issue. The enacting of enabling legislation in respect of the

Rome Statute will bring this issue to the fore. It remains to be seen

what maximum penalty would be attached by the legislature to

international crimes, and how the legislature would ba lance the current

legal dispensation with the international standards against the death

penalty tacitly set by the ICC, ad hoc t ribunals, and numerous states.

6 CONCLUSION

The goal of complementarity is achievable. However, the process of

eliminating legal constraints to domestication of the Rome Statute may

have been underestimated. In many areas like accused’s rights, general

principles of criminal law and defences, complementarity is a certainty.

In others, like the immunities of heads of states and diplomatic agents

and the death penalty, the goal of complementarity appears to be

much further away and may demand some shifts and enhancement

of legislation to adopt new positions. This process will require time,

review of the impact of any proposed changes and broad consultation

with the public, particularly concerning the death penalty.

Botswana is said to have a draft legislation of some form. This draft

is not publicly available and so it is impossible to state how Botswana

proposes to achieve complementarity. It is submitted that a stronger

advocacy for the ICC within Botswana, coupled with more engagement

of relevant stakeholders by the government may be the way forward in

driving the process of achieving complementarity.

64 Tsebe and Another v M inister of Home Affairs and Others; Pitsoe v Mini ster of Home

Affairs and Others 2012 (1) BCLR 77 (GSJ) ( The High Court judgment).

65 ‘Attorney General lashes out at SA Judges’ Th e Su nday Standard (Gaborone)

9 October 2011, 1, available at < http://www.sunday standard.i nfo/print _artic le.

php? New sID =1 2117> (accessed on 11 October 2 011).

66 Minister of Home Affairs and Others v Emmanuel Tsebe and Others Case CCT 110/11

[2012] ZACC 16 at 25.

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