The International Human Rights Framework on the Right of Peaceful Assembly
Botswana is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Botswana is not a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Botswana is a State Party to the 1981 African Charter on Human and Peoples' Rights. Article 11 provides as follows:
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
Botswana is also a State Party to the 1998 Protocol on the African Court on Human and Peoples' Rights, but has not accepted the right of petition to the Court by individuals and non-governmental organisations.
The Domestic Legal Framework on the Right of Peaceful Assembly
Section 13 of the 1966 Constitution of the Republic of Botswana protects the right of peaceful 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....
Public assemblies in Botswana are primarily regulated by the 1967 Public Order Act. The Act allows a senior police officer that has reasonable grounds for believing that an assembly "may occasion serious public disorder" may imposing "such conditions as appear to him necessary for the preservation of public order". A relevant Minister is empowered to declare any area of Botswana to be a controlled area wherein an application to hold an assembly must be made.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and prioportionate to that purpose.
The 1978 Police Act provides that:
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.S. 23,1978 Police Act.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
The Constitution of Botswana provides that intentional deprivation of life will not be unlawful when a person 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....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.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Botswana has not come before the Human Rights Committee in recent years.
The African Commission of Human and Peoples' Rights has not addressed the right of peaceful assembly in Botswana in recent years.
Views of Civil Society
According to Freedom House's 2019 report on Botswana:
Freedom of assembly is guaranteed by the constitution and largely upheld in practice. However, the Public Order Act requires citizens to seek permission from the police to exercise this right. The constitutionality of this clause has been questioned in the past, and permission at times has been denied on unclear grounds by the police.