|Overview : |
The United Nations Standard Minimum Rules for Non-Custodial Measures (‘the Tokyo Rules’) were adopted by the General Assembly resolution 45/110 of 14 December 1990 and provide a set of basic principles to promote the use of non-custodial measures and minimum safeguards for persons subject to alternatives to imprisonment. By adopting the Tokyo Rules, member states of the United Nations committed to developing non-custodial meausres within their legal systems and to provide for alternatives to imprisonment, thereby reducing the reliance upon imprisonment.
Botswana does not currently have an approved Sentencing Policy and, aside for limited legislative options, the criminal justice system has not adopted alternatives to imprisonment and the Tokyo Rules have not been fully domesticated. The result is that detainees include offenders who could have been sentenced to non-custodial sentences as well as detainees awaiting trial who may otherwise have been eligible for bail.
Noting the need for domestication of the Tokyo Rules, including a comprehensive Sentencing Policy, the Ministry of Defence, Justice and Security (MDJS) has initiated a legal and policy review. Between 2012 and 2016 a consultant engaged by MDJS conducted extensive research including a study of Botswana legislation which provide for the imposition of sentences other than imprisonment and an analysis of international best practice and recommendations. The consultant prepared a comprehensive set of documents detailing issues under the current sentencing regime and alternatives that could most effectively be implemented in the context of the existing criminal justice system.
The Sentencing Policy Report focused on the implementation of suitable alternatives at all stages of the criminal justice system: the pre-trial stage; the sentencing stage; and the stage at which early release of sentenced prisoners may be considered as well as issues affecting children who come into conflict with the law. Finally, a proposal was developed for a law to establish a Sentencing Council responsible for formulating sentencing guidelines to assist both the customary courts and the common law courts achieve transparency and consistency when sentencing offenders.
The consultant produced the following documents which together comprise the “Sentencing Policy”:
- A draft Policy Paper for supporting the Development of A Sentencing Policy Encompassing Alternatives to Imprisonment in the Administration of Justice (August 2013)
- A draft Policy on Community Service as an Alternative to Imprisonment (August 2015)
- A draft Policy on a Sentencing Council for Botswana (August 2015)
- A proposal for legislation on the Sentencing Council for Botswana.
The consultant convened several consultations including preliminary consultations and site visits and consultations on the draft policies with Government Ministries, Civil Society, the Judiciary and Parliamentary Representatives.
The Government of Botswana and UNDP are currently implementing the “Support to the Fulfillment of Human Rights, Access to Justice and Empowerment of Youth and Women Project” (2018 – 2021) (the Project). The objective of the Project is to provide advisory and technical support to the Government to strengthen and enhance its capacity to respect, protect and fulfil human rights, enhance the accessibility of the justice system and empower youth and women. The Project is guided by the Government’s national development priorities and goals as articulated in Vision 2036, NDP 11, SDGs, United Nations Sustainable Development Framework (UNSDF) (2017 – 2021) and the UNDP Country Programme Document (CPD) (2017-2021).
Under the auspices of the Project, the MDJS has requested UNDP to provide technical support to finalise the Sentencing Policy. This initiative is consistent with Botswana’s commitments to the Sutainable Development Goals, in particular Target 16.3 “Promote the rule of law at the national and international levels and ensure equal access to justice for all” and indicator 16.3.2 “Unsentenced detainees as a proportion of overall prison population.” Botswana’s National Development Plan 11 (2017 -2023) also commits to the fianlisation of the sentencing policy for quality dispensation of justice [8.126] and to implementation of the alternatives to sentencing programme to enhance the rehabilitation and reintegration of offenders [8.143].
A consultant is therefore required to conduct consultations and finalise the Sentencing Policy as per the Government’s Public Policy Development Framework and the scope of work below in collaboration with a reference group (to be established and led by MDJS), reporting to MDJS and UNDP.