“HIV exposure” is the term commonly used to refer to the prosecuting of HIV exposure in the courts of law. HIV Scotland an advocacy organisation for people living with HIV and AIDS in the UK explains that Scotland is unique in that it is the only country in the UK where apart from the “…possibility of being charged for passing on HIV in those circumstances, it is possible to be prosecuted for putting another person at risk of HIV infection, even if they don’t become HIV positive.
(The term used for this in law is ‘reckless endangerment’ or ‘reckless exposure).” According to the UNAIDS in order to fast-track the HIV response and reach the goals of ending AIDS by 2020 and 2030 there has to be an emphasis on removing human rights barriers and legal obstacles. UNAIDS also reports that there are currently about 73 countries that have laws which “criminalise HIV non-disclosure, exposure, or transmission”, and “…39 countries have applied other criminal law provisions in similar cases.” Botswana is a nation with such laws; the Public Health Act 2013 “…criminalises wilfully exposing the public to any communicable disease” as stated in the Legal Environment Assessment (LEA) report 2017; the Act also makes “communicable diseases notifiable” including HIV.
The LEA report was a coordination of efforts led by the Ministry of Health and Wellness, the UN and the UNDP as supported by its’ Botswana National Steering Committee consisting of representatives from organisations including the Ministry of Health and Wellness, Attorney General’s Chambers, USAID, UNAIDS, PEPFAR, BONELA, BONEPWA, LEGABIBO, Ministry of Youth, Sports and Culture, Botswana Police Service, Botswana Prisons Service, and Ministry of Education. The report which also speaks to the human rights perspective acknowledges that the Public Health Act 2013 has “positive aspects” but also contains “broad criminal provisions” therefore recommending that the Act together with Section 184 of the Penal Code “…be reviewed and revised, to ensure that they are not inappropriately applied to HIV and TB and are in line with recommendations of the Global Commission on HIV and the Law, UNAIDS and other international and regional standards…
“Botswana should ensure that prosecution for HIV transmission is only available in very limited circumstances, when transmission is actual and intentional and prosecutions are pursued with a high level of evidence,” reads the LEA report. In his research paper submitted to the University of Pennsylvania (USA) in 2012, titled “The challenges of HIV/AIDS criminal legislation in Botswana” Zein Kebonang, a High Court Judge, at the time writing in his capacity as the Operations Director at the Botswana UPenn Partnership in Gaborone focused specifically on the Government of Botswana’s ‘attempts to halt the spread of HIV by amending in 1998 the country’s criminal code to provide for stiffer penalties for those charged and convicted of the offence of rape’.
Kebonang, who is currently embroiled in a corporate scandal similarly found that, “punitive sanctions can only be justified where it can be shown that a person acted intentionally to transmit the disease.” Kebonang further observed that punishing convicted persons for being HIV positive will only perpetuate HIV stigma and further marginalise people living with HIV and leading to the invasion of the right to privacy and, “…the unwarranted disclosure of confidential information” and also “vitiates” on the rights to voluntarily test for HIV.
Kebonang noted that in the year 2010 there were 862 rape cases reported, cases he considers as “insignificant” as they do not account to why a third of the population in Botswana is HIV positive. “One of the shortcomings with this law (Penal Code) is that it assumes that transmission only occurs through rape,” writes Kebonang.
On 6th September 2017 Judge Lot Moroka in his judgment for a rape case in Francistown found that the accused ‘person acted intentionally to transmit the disease’ in the State Vs. David Motlhokomedi Ntshwarisang sentence. The judge ruled that the accused was guilty of inflicting “double trauma” on the rape victim who was already suffering a violation of “bodily integrity” and from the “emotional and psychological anguish” of being raped. “The pain is even higher where the perpetrator is HIV positive as it exposes the victim to double trauma,” reads the judgment. The accused was a pastor at a church who raped his victim, “… under the guise of administering church based massage reserved only for pregnant women in his church,” it reads. Ntshwarisang was convicted of rape under Section 141 - Penal Code - of which Subsection 3 reads that, “any person convicted of the offence of Rape shall be required to undergo a Human Immunodeficiency Virus test before he or she is sentenced by the court.”
In this case, the court determined that the accused based on his medical records was aware that he was HIV positive prior to the rape and thus used Subsection 4 to sentence him, “…to a minimum of 20 years’ imprisonment or to a maximum term of life imprisonment with corporal punishment, where it is proved on a balance of probabilities, such person was aware of being Human Immunodeficiency Virus positive.” In his judgment Moroka sentenced the accused to the “…mandatory 20 years imprisonment.” Moroka reinforced what he considers to be the best interests of society; “It is in the interest of society that a deterrence sentence be passed with twin objectives of deterring similarly mined persons and in particular putting the accused out of circulation for a considerable period.” The alternative judgment, if it was proved that the accused had been unaware that he is HIV positive would be “a minimum of 15 years’ imprisonment or to a maximum term of life imprisonment with corporal punishment.”
Research studies show that although HIV is criminalised to varying degrees across the world; there are both pros and cons to criminalising it, and there is no evidence that new HIV infections will be curbed by this. The Oslo Declaration on HIV Criminalisation was adopted in Norway in 2012 and has since been endorsed by “…some 1650 civil society organisations, health and legal experts from around the world.” The declaration states that HIV is not spread by people who know their status, that HIV epidemics are driven by undiagnosed HIV infections. The declaration adds that the criminalising of HIV “…does more harm than good…” and that “neither the criminal justice system nor the media are currently well-equipped to deal with HIV-related criminal cases. Relevant authorities should ensure adequate HIV-related training for police, prosecutors, defence lawyers, judges, juries and media.”
Subsequently and during the 22nd International AIDS Conference 2018 in Amsterdam (Netherlands) another group of “leading” HIV scientists issued a joint statement “urging governments to pay close attention to the significant advances in HIV science to ensure that science informs the application of criminal law in cases related to HIV.” A local attorney, Victor Ramalepa of Ramalepa Attorneys says he supports Botswana’s Public Health Act, “Anybody who puts the public in any form of danger knowingly and deliberately must be prosecuted. I am not specific to HIV; I mean any other communicable disease. If you do not warn the other person, and you do not afford them the use of protection you must be prosecuted.”
Kennedy Mupeli, a representative of CEYOHO, also living with HIV shares his views. “It is negligent on your part to sleep with me without knowing my HIV status when we are in a consensual intimate sexual relationship. If I am accused of willfully exposing someone to HIV, the one who allegedly acquired HIV from me should be equally charged for willfully acquiring HIV. “If I get a sexually transmitted disease or STI from someone I should be held equally responsible for acquiring the STI. It is up to intimate sexual partners to protect themselves from HIV via condoms or PrEP.” Mupeli shares similar views with other human rights activists that in the absence of rape there is no need for a person to disclose their HIV status.
“We are not supposed to be pushed against the wall, with a criminal burden on our backs,” says Mupeli. His argument is that he cannot be disclosing his positive HIV status to all sexual partners. “We have to be careful because some people know they are HIV positive and are looking for a source to blame. “We don’t need that law it is not effective but draconian. Currently most people who are HIV positive are on treatment and cannot transmit HIV,” states Mupeli.
Police are worried that drugs still remain a problem among students despite their continuous public education campaigns, and efforts to curb this problem.
The Botswana Police Service (BPS) is now looking at taking their fight against illegal possession and use of drugs a notch higher, and using social media platforms such as Twitter and Facebook, in the hope of reaching more youth. This was revealed by Officer Commanding: Narcotics, Fauna & Flora, Senior Superintendent Musa Oteng in an interview with this publication this week. He revealed that in recent times they have recorded some worrying numbers where students were found in possession of drugs. In 2017, they recorded 14 cases involving 24 students. In 2018, the number increased to 22 cases involving 37 students.
“We have observed that there are some adverts on these platforms talking about the benefits of using drugs such as Dagga hence we want to use them,” he explains. The most commonly used drug by students at both Junior and Secondary schools, he says is Dagga. Other drugs that students use include CAT (Methcathinone), which is predominant amongst students at tertiary institutions as they have money to access it. In 2018, police recorded two cases of CAT. He explained that most of these numbers were recorded at Senior and Tertiary schools. The majority of the students start using drugs at Junior schools, and some as early as Primary schools.
“Dagga dominates especially at Junior and Senior schools,” he explained. Police use continuous public education campaigns to educate and sensitise students about the illegal use of drugs. In 2017, they reached out to 17 000 students at both Junior, Senior and Tertiary schools. The following year, they reached out to close to 21 000 students at these learning institutions.
Concerning charges for those found in possession of drugs, he explained that they normally engage social workers for underage students, but those of legal age, can be charged for unlawful possession of drugs (less than 60 grams) which attracts either a fine of P20, 000 or jail sentence not exceeding three years, or both if the offender is a recidivist. Media Coordinator of Botswana Substance Abuse Support Network (BOSASNet), Wazha Dambe explained that the most commonly used substances are cigarettes, alcohol and dagga. Other substances include cough syrups, and hard drugs such as CAT, and Cocaine, as well as emerging drugs which are a mixture of drugs, and other creations such as ARV’s, and Faeces. “This is why we are saying that this is a growing problem,” he said.
He said on average they get 20 plus clients in a month seeking their many services that include specialised counselling to individuals and families dealing with issues related to substance abuse and dependency. But the numbers vary according to periods of the year. For example, they have a lot of clients coming through in January seeking help for issues such as health or finances.
Quizzed on whether he was aware about a new drug that allegedly trades under the name Snow, he said that it could just be a name given to a drug that was already available in the market, or that it could have been an old drug or a new mixture, and is trading under a new name. Snow, allegedly is a mixture of a number of drugs. “The drug names also differ according to location,” he explained. He said that they also offer counselling services on a one on one basis, family sessions, as well as parent support groups.
Botswana Police has generated over P5 million in road offenders charges since they mounted a road block at Gamodubu on the Gaborone-Molepolole road since 2016, Parliament has been told.
Gamodubu road block is one of the most effective as motorists cannot avoid it. The offences range from driving a vehicle which is not roadworthy, drunk driving, unlicensed drivers, pirating and over loading to mention, but a few.Answering a question in parliament, Acting minister of Defence, Justice and Security, Dr Pelonomi Venson- Moitoi said since it was mounted in July 2016 the road block at Gamodubu has generated P5 619 550. Moitoi was answering a question from Member of Parliament for Molepolole South, Dr Tlamelo Mmatli.
Dr Mmatli had asked how much revenue the permanent roadblock at Gamodubu has generated since its mounting. In a supplemetary question MP for Selibe Phikwe West, Dithapelo Keorapetse asked if it was true that the Commissioner of Police has issued an instruction to all police stations around the country to use all available avenues to collect traffic fines including forcing drivers to pay. Venson- Moitoi could not confirm nor deny, but said she would not consider it abnormal that a manager would set targets or insist that the law be applied.
“If the police are put on the road to apply the law and deal with offenders of traffic laws, I am sure that he would insist that all offences be dealt with and the necessary charges and fines collected. There would be nothing abnormal about that.” MP for Gaborone North Haskins Nkaigwa asked how true it is that the money collected from traffic fines is not deposited directly into the Consolidated Fund, but instead goes to the Commissioner’s office and they in turn use such funds to address the police needs. Venson- Moitoi said she would have to get the MP that information, “but my first understanding is that first the police collect it. How much of that goes to the Consolidated Fund, I would have to get you that information.”
The Botswana Police officials have refuted recent allegations that ‘ nine bushmen have been subjected to violence by law enforcement officers as reported by the NGO Survival International, in a statement dated 11th August 2016.
This week, Senior Superintendent Dipheko Motube of the BPS has told The Midweek Sun in an interview that, never at any stage has a single gunshot been fired at Bushmen at the Central Kalahari Game Reserve (CKGR). “There has in fact never been any occasion in which the Botswana Police have ever shot at people from a helicopter either at the CKGR or anywhere else,” he explained.
Nevertheless, Motube said they have recently found crime scenes at the game reserve, where 11 suspects were caught red handed with carcasses of game meat. “All the suspects were caught in different spots on different dates between July and August. On the 30th July, three suspects, were allegedly found with 2 carcasses of elands and three gemsboks,” he said.
He said that in July 31st, they found three more suspects in possession of three heads of elands, two heads of gemsbok and loads of fresh meat. Moreover, on August 5th, the police caught five suspects with a carcass of a giraffe, seven gemsboks and two elands, still in the CKGR. However, Motube clarified that even these culprits were never stripped nor beaten.
Barely four months after the controversial suspension of fishing activities at Lake Ngami by Ministry of environment, Wildlife and Tourism fishermen have invaded Lake Ngami as fish from the lake continue to be sold in the local market.
The patrol team consisting of Botswana Defense Force, Botswana Police and Wildlife officials to control illegal fishing at the lake is failing as it is struggling to control illegal fishing. District leadership such as Dikgosi have expressed displeasure about continuous illegal fishing.
Kgosi Boitelo Dithapo of Sehithwa village said that illegal fishing is a major concern in the area and revealed that they receive more than three cases of illegal fishing almost every week in their customary court. However some District leaders have expressed mixed views about the issue with some saying the fine is too low and need to be tightened. Fishing was suspended because the Ministry has unresolved issues that needed to be ironed, such as littering, illegal fishermen and others that pose a threat to the environment.
Last month 32 cases of illegal fishing were recorded around the lake.
Perpetrators are charged under the Fish Protectors Regulations of Section 3 of Fish protection Act and are charged P200 for admission of guilt and they can be sentenced to three months imprisonment. Dithapo said the fine needs to be amended to be stiffer than the current one to curb the illegal fishing that is skyrocketing in the area. Ngamiland District Wildlife Coordinator, Bolt Othomile said offenders take advantage of the fact that the area they are managing is wide and full of water. Othomile said they are assuming that people communicate with the offenders about the patrolling team, adding that their intention is not to arrest anyone but to prevent the illegal fishing.
He said they are waiting for the approval of the fishing penalty which they expect to be much stiffer. Officer commanding for Ngamiland, Senior Supt. Chabaesele Kesupetswe was unhappy about the escalating cases of illegal fishing in the area. He said that most of the ofdfenders are from Maun and not from the areas surrounding the lake.
After 30 years of service in the Botswana Police Service, the affable and good-humoured Motsholathebe Mothibi retired in May this year a contented man. In the three decades that he served, he rapidly rose through the ranks to become Station Commander.
Among the awards that Mothibi has received in recognition of his service to the country and its people are the Jubilee, Long Service and Good Conduct awards. President Ian Khama awarded him the Meritorious Service award at the Botswana Police Day recently. Mothibi remembers fondly his first medal in 1976 when all children born in the independence year at the primary school he went to were awarded medals as they turned 10. For him, this later turned out to have been a harbinger of bigger things to come! Born in 1966 in the Marobela village, one of ‘Motshola’s’ filial duties was the tending of the family cattle and goats alongside his siblings and children from the extended family.
Like most children in the rural areas, he “grew up in an environment of poverty.” As elsewhere in the country, school-going children stayed alone at the village while their parents were, depending on the season of the year, either at the cattle post or ploughing fields. After enrolling at Nyamambisi Primary School in 1973, he had to learn to stay for at least a week away from his parents who were accessible only on weekends when, every Friday afternoon, the school-going children, longing for their parents, walked barefoot, the rough and long roads to the cattle-posts or ploughing fields. Instead of the usual seven years to complete his primary education, young Mothibi sat for his Primary School Leaving Examinations eight years later in 1980 and, as he says, “due to some hiccups.”
In the event, he got a first class and went to McConnell College in Tutume.
“Although I did well enough to proceed to Form 5, I left school after successfully completing my Form 3 in 1983,” revealed debonair Mothibi without giving details. He joined the Botswana Police in April 1984. His brother’s death in 1981 had left a determination in the mind of the fresh-faced lad to learn more about the practice of investigations. “I was intrigued by the mere thought of investigating a crime. The whole incident ignited in me the passion to one day be an investigator,” explained Mothibi who was happy that police investigations had turned up the murderer of his brother. His choice of career may also have been influenced by the fact that his deceased brother was a policeman as well as several of his uncles. After completing his training, he was posted to Orapa where, as a Constable, he was part of the patrolling team. However, due to hard-work and commitment to duty, he, within three months, was removed from the more exacting job of looking out for criminals to the more dignified job of helping at the station registry. It was not long before he was given charge over the registry.
“This was obviously in recognition of my passion for work. I would voluntarily work beyond my shift. I sometimes worked at the registry the entire night even when I was not officially on duty,” he remembered with a sense of nostalgia. After promotion to the rank of Sergeant in 1988, Mothibi was transferred to Nata police station as Station Sergeant. Two years later, he was transferred to Sua Town after being moved up to the rank of Sub-Inspector. “It was like being thrown into the deep-end because, since Sua was a new town without a police station at the time, my mandate was to establish it. My first team there consisted of only six officers including myself,” he stated. His leadership at Sua was challenged by, among things, the prevalence of cattle rustling in the area and the occurrence of a flood which required that those affected be evacuated. Although he does not admit it openly, a sit-in strike by Sua mine workers must have scared him and his charges for they were too thin on the ground to handle a workers’ strike. Mercifully, the standoff between mine management and its employees dissipated.
In 1997, Mothibi, after being elevated to the position of Inspector, was transferred to Francistown as public prosecutor. Back in 1991, he had been sponsored by his employer to do a certificate in law at the University of Botswana. Mindful of the fact that he could not go far without formal education, he went to a night school at Mater Spei College in 1999 where he eventually matriculated. He would once again get a promotion this time to the rank of Assistant Superintendent. In 2004, he was transferred to Shakawe as Station Commander only to be transferred to Francistown less than a year later to take the post of Deputy Station Commander of the Gerald Estates Police Station. In 2007, Mothibi became Station Commander at the same police station. He reached the pinnacle of his career in 2012 when he became the Station Commander of Kutlwano Police Station in Francistown.
As Deputy Station Commander and then Station Commander in Francistown, Mothibi served in several organisations and committees such as BOCCIM, Disaster Management, the Francistown Justice Forum and the Francistown Law Enforcement Committee among others. Feeling empowered enough to contribute to the security of the people at a different level, Mothibi started running a security service company, UYABA Security Service, immediately after his retirement. A happily married man with two sons named, Uyapo and Batsile, respectively, the name of Mothibi’s security solution company derives from the first three letters of his first son’s name and the first two letters of his second son’s name. Remarkably, the company got an award at the BOCCIM trade fair the same month after impressing the judges with its products.
“During my service in the police, I was trained at the International Law Enforcement Agency (ILEA) by the American Federal Bureau of Investigations (FBI). That way, I acquired intensive knowledge of security. I also protected visiting heads of state. I use advanced technology to track vehicles, laptops, TVs and other items. I also provide security guards for premises as well as installing security cameras,” explained the man who has also provided escort to President Ian Khama and his predecessors, Festus Mogae and Sir Ketumile Masire.
Awitness in the case in which Unangoni Kombani is accused of assaulting a police officer in Monarch location in 2012 shocked court on Friday when he confessed to being a thief. Appearing in Francistown before Magistrate Dumisani Basupi, the witness, Dennis Tabulawa, said the reason he has not been coming to court is that he was not notified of court dates.
Basupi had threatened to jail him for contempt of court until the case is finalised because he is not a reliable person. Tabulwa then got angry. He reiterated that no one had notified him about the court dates. He told Basupi that he has a case in Masunga magistrate court and a personal case in Gaborone that give him sleepless nights. He said he hopes that giving evidence in the current case would be the last time because many of his plans have stopped as a result. In his evidence he said that he was at his tuck-shop in Monarch location where he sells cooked meat when he heard gun shots.
He went outside and saw that the shots were being fired by the police. There were people at the tuck-shop, he said. He said he saw Kombani run away. He did not know why Kombani was running away. He followed the police officers who were shooting. He wanted to ask them why they were shooting in the vicinity of people and secondly, to inform them that they had damaged his tuck-shop as one gunshot had ripped through the wall. On catching up with the police officers, he saw a boy about 15 metres from where the police officers were standing. He said the police shot at him as they were aiming towards Kombani who was running in the direction of the boy.
Kombani then fell down and was arrested. Magistrate Basupi then asked Tabulawa if the police had intentions to shoot the boy, to which he responded, “No.” Tabulawa said he then alerted the police that they had accidentally shot the boy as they did not notice him. He said he went to collect the cartridges that came from the gun. He said he used plastics because he did not want his fingerprints to temper with the evidence as he was going to give them to his lawyer. “Why did you collect them using a plastic and why did you not give them to the police as you had said that they had damaged your tuck-shop?” Basupi asked.
Tabulawa said he lives through stealing from other people and he did not want to hold the cartridges with his hands because the police would have said he was the one who shot his own tuck-shop. He said he once owned a gun which the police confiscated because he was using it for robberies. He confessed that he does not trust the police and he once served 10 years in jail for alleged theft which he did not even commit so he is still very angry about it, hence he is a thief. “I have had run-ins with police officers, especially in Central Police Station, I do not trust them because even if I report to them that my house was broken into, they say how can a thief’s house be broken into?” Tabulawa said.
After Tabulawa had confessed to being a thief, Semakaleng Mazibane, the prosecutor from Central Police Station put it to him that a thief will never tell the truth and that the evidence he gave in court was all fabricated lies to protect Kombani. Mazibane said that she would go with the evidence given by the two innocent boys who were at the scene and testified in court that they saw Kombani assault the police officer.