Legalising Corporal Punishment in Botswana?

The Government of Botswana introduced the Customary Courts Amendment Bill in December 2004 to revise the existing Penal Code. The Bill proposed among other things corporal punishment to male convicts under 40 years of age. It provides for corporal punishment to those who fail to pay court fines and is seen as an alternative to imprisonment. The Bill empowers the Chiefs of the Customary Courts to administer public flogging on offenders committing minor infractions.

Interestingly, the support for corporal punishment was so large that voices against the Bill were barely heard. Between the introduction of the Bill in December 2004 and its approval in April 2005, the whole debate in Botswana revolved around the exclusion of women from the purview of the Bill; expansion of age limit of the convicts from 40 to 50 years and the number of strokes the offenders can be subjected to. The result now is that offenders up to the age of 50, including women, can be sentenced to flogging ranging from 4 to 6 strokes.

This piece of legislation reflects a complete disregard by the Botswana government to the provisions of its own Constitution, one which guarantees its citizens the right not to be subjected to inhuman treatment or torture under Article 7 in chapter 2. This amendment is also in contravention of Article 5 of the UDHR and Article 7 of ICCPR, to which the Republic of Botswana is a signatory, both of which prohibit torture, cruel, inhuman or degrading treatment or punishment.

Traditionally, Botswana has supported corporal punishment as a way of meting out justice to the offenders. Defenders of the amendment have claimed that the legislation is an attempt to revive traditions. They also claim that corporal punishment, as an alternative to imprisonment, will reduce overcrowding in prisons, which is at a whopping rate of 160 percent.

They also argue that the punishment is a good deterrent as public flogging is embarrassing and humiliating to the recipient. Another argument posed is that forced confinement is no less torturous than infliction of direct pain.

Botswana, which signed and ratified the Convention against Torture on 8 September 2000, should (have according to Article 2 of the Convention), legislated against the traditional forms of corporal punishment. The Convention does not allow the state to justify torture even in the context of state of war and internal political instability.

The physical and psychological torture that public flogging subjects the offender to, can scar him/her permanently and estrange him/her from the society. Sufficient research has gone into the negative implications of brutal forms of punishment on the public. The state as the protector of law and order in the society cannot impose cruel and inhuman punishments and demean offenders who are after all still a part of the society. In imposing inhuman punishments, the state, which is expected to represent the collective will of the people, ends up stooping down to the level of the offender.

Many Commonwealth countries unfortunately continue to use the excuse of tradition and culture to lend legitimacy to authoritarian regimes and practices. Flogging and such corporal punishments receiving public sanction and state approval is dangerous. The remedy has become more lethal than the disease.