Botswana domesticates Rome Statute

Botswana is expected to soon domesticate the Rome Statute of the International Criminal Court possibly before the end of this year.

The domestication will happen after Parliament passes the Rome Statute of the International Criminal Court Bill of 2015. Minister of Defence Justice and Security Shaw Kgathi will table the Bill in the July 2016 Parliament session. The object of the Bill is to provide for the domestication of the statute, which was ratified by Botswana on 8 September 2000.

In an interview with Botswana Guardian Kgathi confirmed that he would table the Bill during the July session. The minister however did not rule out the possibility of tabling the Bill during the Budget Speech session, which is expected to start next month.

“I can only table it during the Budget Speech session if there is an opportunity. This will also have to happen through consultation with the Speaker of the National Assembly because the session for Bills is the July session”, Kgathi explained.According to the gazetted draft Bill this is to ensure that as a State Party Botswana conforms to and implements her obligations as set out under the Rome Statute.

The Rome Statute provides for the prosecution of the core international crimes, which are genocide, crimes against humanity and war crimes. It also provides for the cooperation of states with the International Criminal Court (ICC).

Genocide includes killing members of a group, causing serious bodily or mental harm to members of the group, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group, which acts are committed with intent to destroy, in whole or in part a national, ethnical, racial or religious group. Any person convicted of this crime, which involves murder, will be sentenced to death unless there are extenuating circumstances.

According to the Bill crimes against humanity are crimes when committed intentionally as part of a widespread or systematic attack directed against any civilian population- crimes, which include murder, enslavement, torture, and enforced disappearance of persons. The draft bill notes that any person in Botswana or elsewhere who is convicted of crime against humanity is liable to death penalty unless extenuating circumstances have been proved.

On the other hand war crimes include wilful killing, wilfully causing suffering, or serious injury to body or health and torture or inhuman treatment, including biological experiments - and any person in Botswana or elsewhere who commits war crime is also under the Rome Statute Act liable to death penalty unless extenuating circumstances are proved.

Under this Act where the ICC requests assistance in locating or identifying a person or an object believed to be in Botswana, the Commissioner of Police may give authority for the request to proceed if he or she has reasonable grounds to believe the person to whom or the thing to which the request relates is, or maybe in Botswana.

Where the ICC requests assistance in facilitating the temporary transfer to the ICC of a prisoner serving a sentence in Botswana for an offence against the law of Botswana, the minister shall give authority for the request to proceed if he or she has reasonable grounds to believe that the prisoner’s assistance is sought for the purpose of identification or obtaining evidence or other assistance. 

If passed by parliament the Act will empower the minister to notify the ICC that Botswana is willing to allow persons who are ICC prisoners as a result of being sentenced to imprisonment by the ICC to serve those sentences in Botswana, subject to any conditions specified in the notification.

The draft Bill states that the ICC shall have legal personality in Botswana with such legal capacity as may be necessary for the performance of its functions and the fulfilment of its purpose. It further states that this Statute shall apply equally to all persons without any distinction based on official capacity.

In particular, official capacity as a Head of State or Government, a member of a government or Parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence, reads the draft Bill.