Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Botswana (Ratification: 1997)

Article 1(1)(a) of the Convention. Sexual harassment. In its previous comments, the Committee had noted the absence of legislative provisions prohibiting sexual harassment in employment and occupation in the private sector, while doing so in respect of the public service (section 38 of the Public Service Act, 2008) and requested the Government to take steps with a view to including provisions on sexual harassment in the Employment Act in the future. In its report, the Government indicates that the Employment Act of 1998, is in the process of being reviewed and that the Committee’s comments will be taken into consideration. It also indicates that during the period under review no cases of sexual harassment were brought forward in the public and private sectors and that awareness raising activities, based on the Code of Good Practice adopted in 2002, are realized routinely through labour inspection. The Committee has consistently stated that sexual harassment is a serious manifestation of sex discrimination and is to be addressed within the context of the Convention. Therefore, it wishes to recall that the absence of complaints regarding sexual harassment does not necessarily indicate that this form of sex discrimination does not exist but rather that it is likely to reflect the lack of awareness and understanding of this form of sex discrimination among government officials, workers and employers and their organizations and the general public (2012 General Survey on the fundamental Conventions, paragraphs 789–790). Recalling that the Code of Good Practice provides that employers should establish procedures to lodge sexual harassment grievances, the Committee asks the Government to indicate if such procedures have been put in place by employers since the adoption of the Code and to provide examples of such procedures collected by labour inspectors during their inspection.

Article 2 of the Convention. Equality of opportunity and treatment of men and women. The Committee notes that girls in secondary and higher education record high drop-out rates due to early marriages and traditional attitudes, and notes also that gender segregation exists by sectors as well as occupations, which leads to Government efforts to encourage the enrolment of the girl child in math and science based subjects in order to promote their participation in male dominated jobs. The Committee notes that the country operates under a dual legal system that applies customary law in parallel with the formal legal system, the latter of which is applied when it is considered that the application of the customary law is detrimental to women’s equality of opportunities. The Government recognizes the challenges of the dual legal system and indicates that it has developed strategies to address these challenges, such as for example: continuous engagement with civil society (community dialogues, television and radio discussions, seminars, campaigns), including community and religious leaders on issues that perpetuate gender inequality, and active engagement of Dikgosi (traditional chiefs) as custodians of culture on gender issues. In this regard, the Government indicates that in November 2012 a national consultation was held with traditional chiefs, focusing on mainstreaming gender into the Customary Justice System. In an effort to address and eliminate discriminatory practices that hinder women’s progress toward equality, there is also continuous engagement with Ntlo Ya Dikgosi (other Community Leaders), civil society organizations, the media and the nation at large on gender and development. Regular briefs are conducted with Ntlo Ya Dikgosi to update them on current developments and solicit their support in implementing changes.

Further, the Government highlights that the Public Service Act of 2008 places emphasis on merit for recruitment and progression, and that women now comprise 43 per cent of executive positions. The Government also refers to the establishment of District Gender Committees to facilitate gender mainstreaming at the community level, the appointment of women to high-level positions in the justice sector that were traditionally the reserve of men (Attorney-General, Head of Office of the Ombudsman), the results of a policy that has achieved gender parity in the Judiciary with 50.8 per cent of the magistrates being women, and the increasing recruitment of women in the Defence Force (cadets and lower ranks), as well as in the Police Service (women represented 25.18 per cent of the police force as of March 2015). In this regard, the Committee notes the Government’s indication that a National Policy on Gender and Development has been approved on 7 August 2015 and that it is anticipated that this will improve the implementation of the country’s commitment to achieve gender equality objectives, in particular in the political and public life. It also notes that 80 per cent of the beneficiaries of the Poverty Eradication Programme, in place since 2011, are women, and that a Women Economic Empowerment Programme has been established to facilitate women’s access to credit, income-generating activities, and capacity-building activities regarding Business Management.

The Committee requests the Government to continue providing information on specific measures taken to promote and ensure equality of opportunity of men and women in employment and occupation, including on the following points:

• (i) measures taken under the National Policy on Gender and Development to promote equality of opportunity and treatment of men and women, including measures to promote access to education and a wide range of training opportunities and occupations;
• (ii) measures taken or envisaged to eliminate customary practices that are detrimental to women’s equality of opportunity and treatment in employment and occupation, including information on the activities of the District Gender Communities, with the traditional chiefs and other community leaders;
• (iii) measures taken to ensure adequate access of men and women to procedures addressing discrimination and remedies, including the Legal Aid Programme.

The situation of indigenous peoples. The Committee recalls its request to the Government to ensure the right of indigenous peoples to engage, without discrimination, in their traditional occupations and livelihoods and as well as their access to education. It notes the Government’s indication that it does not single out any tribe in the country as indigenous although it recognizes some segments of the population as being disadvantaged due to factors such as geographic conditions and lifestyles. To that end, in July 2014, the Government developed an Affirmative Action Framework for Remote Area Communities with a ten year Implementation Plan which will run from 2015 to 2025, dealing with issues such as youth employment, water, land, education, and economics, and that 822 students have been sponsored by the Government under this Plan. The Committee welcomes the Affirmative Action Framework, and requests the Government to provide information on measures taken under this scheme to ensure equality of opportunity and treatment of disadvantaged segments of the population, including minority indigenous groups, in employment and occupation, including their right to engage without discrimination in their traditional occupations and livelihoods and their access to education. It asks the Government to provide specific information on the implementation of the Affirmative Action Framework as well as other remote area development programmes with respect to education, training and employment opportunities of indigenous peoples, and the results thereof.

Special measures. The Committee recalls its previous comments regarding section 15(4)(e) of the Constitution which allows differential treatment by law where this is “reasonably justifiable in a democratic society”, as well as its request to the Government regarding its application in practice. The Committee notes the Government’s indication that it has introduced a Unit in the Office of the President to deal specifically with issues relating to people with disabilities. Noting that the Government’s reply does not explain concretely how differential treatment would be allowed by law where such treatment would be “reasonably justifiable in a democratic society” the Committee continues to request the Government to indicate how section 15(4)(e) of the Constitution has been and is being applied in practice. Further, the Committee invites the Government to provide information regarding the activities of the Unit in the Office of the President that deals specifically with persons with disabilities, including measures taken or envisaged to prohibit direct and indirect discrimination based on disability in all aspects of employment and occupation (education, vocational guidance and training, access to employment and particular occupations, terms and conditions of employment) and to promote equal opportunities for persons with disabilities.

Enforcement. The Committee notes the Government’s indication that no recent cases dealing with discrimination have been filed with the competent authorities. In this regard, the Committee recalls that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, a lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals (2012 General Survey, paragraph 870). The Committee therefore requests the Government to indicate more specifically activities undertaken to raise awareness of the relevant legislation prohibiting discrimination in employment and occupation, and to enhance the capacity of the responsible authorities, including judges, labour inspectors and other public officials, to identify and address such cases. The Committee requests the Government to provide its comments in this respect.