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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Article 2 of the Convention. Equality of opportunity and treatment of men and women. The Committee recalls that the country operates under a dual legal system that applies customary law in parallel with the formal legal system, the latter being applied when it is considered that the application of the customary law is detrimental to women’s equality of opportunities. The Government previously recognized the challenges of the dual legal system and indicated that it has developed strategies to address these challenges. The Government also referred to the National Policy on Gender and Development which had been approved in 2015 and its national operational plan in 2018, and to the Women Economic Empowerment Programme. The Committee notes that the Government’s report does not contain any new information on gender equality. It notes however the concern expressed, in its concluding observations, by the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) about: (1) the persistence of harmful practices, including child marriage, and deep-rooted stereotypes regarding the roles and responsibilities of men and women in the family and the community; (2) the lack of mechanisms to monitor and evaluate the implementation of the national policy on gender and development, with a view to changing such stereotypes and harmful practices; (3) the high unemployment rate among women and the unequal division of family responsibilities between women and men; (4) the lack of accessible and affordable childcare facilities; (5) the concentration of women in the informal sector and that women in that sector continue to be excluded from labour and social security protections; and (6) the lack of general knowledge among rural women of social security, education, health-care services, local development programmes and laws and policies relating to women’s rights. (CEDAW/C/BWA/CO/4, 14 March 2019, paragraphs 24, 35, 41). In light of the above, the Committee asks the Government to provide information on specific measures taken to promote and ensure equality of opportunity of men and women in employment and occupation, including on the measures taken: (i) under the National Policy on Gender and Development or otherwise, to promote equal access to education at all levels, in particular in rural areas, and increase training and employment opportunities for women, and the results achieved; (ii) to eliminate gender stereotypes and customary practices that are detrimental to women, including among the traditional chiefs and other community leaders; (iii) to reconcile work and family responsibilities and promote a more equitable distribution of family responsibilities between men and women; and (iv) to ensure adequate access of men and women to procedures addressing discrimination and remedies, including through the Legal Aid Programme. The Committee also asks the Government to provide statistical information, disaggregated by sex and by occupational category, if possible, on the workforce in both private and public sectors.

Indigenous peoples. The Committee recalls that, in 2014, the Government had developed an Affirmative Action Framework for Remote Area Communities with a ten-year Implementation Plan which would run from 2015 to 2025, dealing with issues such as youth employment, water, land, education, and economics. The Committee asks therefore the Government to provide information on: (i) any 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; (ii) their right to engage without discrimination in their traditional occupations on their lands and livelihoods; and (iii) their effective access to education. It also 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.

Enforcement. The Committee notes the information on the judicial decisions provided by the Government in relation to discrimination but observes that they do not concern employment and occupation. The Committee asks the Government to provide information on any specific 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.It also asks the Government to continue to provide information on any cases of discrimination in employment and occupation dealt with by the labour inspectors or the courts.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Article 1 of the Convention. Protection from discrimination. Grounds of discrimination. Aspects of employment covered. Legislative framework. The Committee recalls that the 2010 Amendment to the Employment Act of 1982 (restricting the grounds on which employers may terminate a contract of employment): (1) removed the grounds of “national extraction” and “political opinion” from the list of prohibited grounds of termination of employment (section 23(d)); (2) inserted three new prohibited grounds (sexual orientation, health status and disability); and (3) inserted a provision prohibiting termination of the employment contract on the ground of “any other reason which does not affect the employee’s ability to perform that employee’s duties under the contract of employment” (new section 23(e)). It also recalls the “Code of Good Practice: Employment Discrimination” published in 2008, the purpose of which is to eliminate discrimination at the workplace and promote equality of opportunity and treatment in employment. The Committee notes the Government’s indication, in its report, that there was no change in the labour legislation. The Committee asks the Government to take the necessary measures to review the Employment Act of 1982 as amended to ensure that: (i) section 23(d) prohibits explicitly discrimination based on “political opinion” and “national extraction”; and (ii) the protection against discrimination is extended to all aspects of employment and occupation, including recruitment and terms and conditions of employment. The Committee asks the Government to provide updated information on: (i) the steps taken to review the Employment Act in this regard; (ii) the extent to which the “Code of Good Practice: Employment Discrimination” is applied, in particular regarding workplace policies formulated by employers; and (iii) the application of section 23(e) of the Employment Act by the administrative or judicial authorities, indicating the grounds invoked and the sanctions applied.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. 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. In this regard, it recalls the absence of legislative provisions prohibiting sexual harassment in employment and occupation in the private sector, while including such provision in respect of the public service (section 38 of the Public Service Act, 2008). It further recalls the “Code of Good Practice: Sexual Harassment at the Workplace”, which was also published in 2008 and provides guidance to employers as well as the National Strategy to End Gender-Based Violence in Botswana for the period 2014–2020. Referring to paragraphs 789 to 794 of its 2012 General Survey on the fundamental Conventions, the Committee asks the Government to: (i) consider including in the labour legislation a clear definition and prohibition of sexual harassment (both quid pro quo and hostile work environment sexual harassment) in employment and occupation as well as preventive measures and remedies; and (ii) provide specific information on any practical measures taken or envisaged to prevent and address sexual harassment against both men and women workers, such as awareness-raising campaigns or research, in the framework of the National Strategy to End Gender-Based Violence or otherwise. 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, if so, to provide examples of such procedures.

The Committee is raising other matters in a request addressed directly to the Government.

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

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.

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

Article 1 of the Convention. Protection from discrimination. Grounds of discrimination. Aspects of employment. Legislation. The Committee recalls that the 2010 amendment to the Employment Act of 1982 (restricting the grounds on which employers may terminate a contract of employment): (i) removed the grounds of “national extraction” and “political opinion” from the list of prohibited grounds of discrimination (section 23(d)); (ii) inserted three new prohibited grounds (sexual orientation, health status and disability); and (iii) inserted a general prohibition of discrimination (new section 23(e)) that prohibits termination on grounds of “any other reason which does not affect the employee’s ability to perform that employee’s duties under the contract of employment”. The Committee recalls its request to the Government to take the necessary steps to amend section 23(d) of the Employment Act of 1982 in order to explicitly prohibit discrimination based on all the grounds set out in Article 1(1)(a) including “national extraction” and “political opinion”, and in all aspects of employment; and to provide information on the application in practice of section 23(e) of the Employment Act. The Committee notes the Government’s indication, in its report, that the process of amending the Employment Act has started with the intent to include such provisions. It notes however that no information is given regarding the application in practice of section 23(e) of the Employment Act. The Committee requests the Government to provide updated information on the steps taken to amend the Employment Act of 1982, including measures taken to ensure that section 23(d) of the Employment Act expressly prohibits discrimination based on “political opinion” and “national extraction” and covers all aspects of employment and occupation, including recruitment and terms and conditions of employment (and not only termination). The Committee repeats its request to the Government to provide information on the application in practice of section 23(e) of the Employment Act, including any interpretation by the administrative or judicial authorities.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Sexual harassment. The Committee notes that the Public Service Act, 2008 (Act No. 30 of 2008) includes provisions defining and prohibiting both quid pro quo and hostile environment sexual harassment, and providing that it constitutes misconduct (section 38). The Committee notes the Government’s indication that the Committee’s recommendation regarding the inclusion of similar provisions in the Employment Act will be considered in future amendments of the Act. The Committee also notes that the Code of Good Practice: Sexual Harassment in the Workplace was approved on 23 August 2002, with the objective of eliminating sexual harassment in the workplace, and that the Code promotes the development and implementation of policies and procedures leading to a workplace that is free of sexual harassment. It notes the broad definition provided in the Code of Good Practice of Sexual Harassment. The Committee notes further that the Code of Good Practice: Employment Discrimination also provides that “Harassment of an employee, whether of a sexual nature or otherwise, constitutes a form of discrimination”. In the absence of legislative provisions prohibiting sexual harassment in employment and occupation in the private sector, contrary to the public service, the Committee asks the Government to take steps with a view to including provisions on sexual harassment in the Employment Act in the near future. The Committee once again requests the Government to provide information on the number of cases that have been brought under section 38 of the Public Service Act, 2008, as well as information on any cases of sexual harassment in the private sector dealt with by the competent authorities. The Government is also asked to provide information on any steps taken to raise awareness among workers, employers and their organizations of the Code of Good Practice: Sexual Harassment in the Workplace and to indicate if procedures to lodge grievances regarding sexual harassment have been established by employers as provided in the Code.

Article 2. Equality of opportunity and treatment of men and women. The Committee notes that, despite the efforts made by the Government in achieving parity in primary education and designing re-entry policies for returning to school after childbirth, the Committee of the United Nations on the Elimination of Discrimination against Women (CEDAW) expressed concern in its concluding observations, regarding the low enrolment of girls in secondary and higher education and the girl’s high drop-out rates, due to, inter alia, traditional attitudes, early pregnancies and early marriages (CEDAW/C/BOT/CO/3, 5 February 2010, paragraphs 31–32). The Committee notes from the statistics provided by the Government (2005/6 Labour Force Survey – February 2008) that 47.7 per cent of the persons employed were women and that women workers were concentrated in hotels and restaurants (74.3 per cent) and private households (71.4 per cent). In education, finance, wholesale and retail trade, and health, the proportion of women employed was above 60 per cent. It also notes from this information that, not only sectors of the economy, but also occupations are segregated by sex. The Committee also notes the detailed statistics provided by the Government on the informal economy (2007 Informal Sector Survey Report – May 2009) which show that 60.7 per cent of persons working in the informal economy were women and that female ownership dominated in almost all the industries. The Committee notes the Government’s indication that customary practices that are detrimental to women’s equality of opportunities are addressed if found, and that currently, there are no such practices. The Committee welcomes the judgment of 12 October 2012 in which the High Court ruled that customary laws that prevent women from inheriting their family home are not in line with the Constitution of Botswana which guarantees gender equality. The Committee notes however the concern expressed by CEDAW regarding the limitations faced by women in practice to exercise their right to access to justice and bring a case of discrimination before a court, such as legal costs, the persistence of traditional justice systems, illiteracy, lack of information about their rights and other practical difficulties (CEDAW, ibid., paragraphs 17–18). The Committee requests the Government to take specific measures to promote and ensure equality of opportunity of men and women in employment and occupation, including measures to promote access to education and a wide range of training opportunities and occupations as well as access to land and credit. Please provide a copy of the judgment of 12 October 2012 of the High Court. The Committee also asks the Government to provide information on the following points:

• (i) steps taken to address gender stereotypes regarding the role of men and women in the society as well as women’s professional aspirations, preferences and capabilities;
• (ii) measures taken or envisaged to eliminate customary practices that are detrimental to women’s equality of opportunity and treatment in employment and occupation, such as practices concerning unmarried women;
• (iii) measures taken to ensure an adequate access of men and women to procedures addressing discrimination and remedies; and
• (iv) statistical information available on the participation of men and women in the labour market, in particular information showing the proportion of women and men in high level posts in both the public and private sectors.

The situation of indigenous peoples. The Committee notes that the Government’s report contains no information in reply to its previous comments on the situation of indigenous peoples in Botswana. The Committee notes that in his most recent report which focuses on minority indigenous groups in the country, such as the Basarwa and the Bakgalagadi, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, while acknowledging the initiatives undertaken by the Government to address the conditions of disadvantaged indigenous peoples, indicates that marginalized indigenous peoples continue to confront serious issues arising out of the historical loss of vast amounts of lands and natural resources (A/HRC/15/37/Add.2, 2 June 2010). Therefore, the Committee requests the Government to provide information on the measures taken to ensure equality of opportunity and treatment of 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. Please provide specific information on the implementation of the remote area development programme 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” and asks the Government to indicate how this provision has been and is being applied in practice.

Enforcement. The Committee requests the Government to provide information on the number and nature of cases of discrimination dealt with by the competent authorities, and their outcome.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1 of the Convention. Legal protection from discrimination. Grounds of discrimination. Covering all aspects of employment. The Committee notes that section 23 of the Employment Act (restricting the grounds on which employers may terminate contracts of employment) was amended in 2010, so as to explicitly include in the list of prohibited grounds for termination of employment, “sexual orientation”, “health status” and “disability”, and at the same time removing from this list “national extraction” and “political opinions” (section 23(d)), and to insert a general provision (new section 23(e)). The Committee notes therefore that under the Employment Act as amended, termination of employment is now prohibited on the basis of : (i) “the employee’s membership of a registered trade union or participation in any activities connected with a registered trade union outside working hours or, with the consent of the employer, within working hours” (section 23(a)); (ii) “the employee’s race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour, creed, health status or disability” (section 23(d) as amended); or (iii) “any other reason which does not affect the employee’s ability to perform that employee’s duties under the contract of employment” (new section 23(e)). The Committee also notes that in accordance with the Code of Good Practice: Employment Discrimination, which was approved on 23 August 2002, discrimination is prohibited on the basis of “but not limited to” race, tribe, place of origin, national extraction, social origin, marital status, political opinions, sex, colour or creed (section 3.2). The Code of Good Practice further indicates that there may be other grounds such as religion, HIV status, family responsibility, language, etc. While noting the general prohibition of discrimination added to the Employment Act, the Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should specify at least all the grounds of discrimination set out in Article 1(1)(a) of the Convention and cover all aspects of employment and occupation, including training, recruitment and selection and all terms and conditions of employment. Given that there are grounds specifically enumerated in the Employment Act, and the grounds of “national extraction” and “political opinion” have been expressly removed from this list, the Committee notes that it is of particular importance that all the grounds set out in Article 1(1)(a) of the Convention are specifically addressed in the Act. The Committee asks the Government to take the necessary steps to amend section 23(d) of the Employment Act in order to prohibit explicitly discrimination based on at least the grounds of race, colour, sex, religion, political opinion, national extraction and social origin, and to cover all aspects of employment and occupation, including recruitment and terms and conditions of employment. The Committee asks the Government to provide information on the measures taken in this respect. The Committee also asks the Government to provide information on the application in practice of section 23(e) of the Employment Act, including any interpretation by the administrative or judicial authorities. The Government is also asked to provide information on any steps taken to foster knowledge among workers and employers and their organizations of the code of good practice on employment discrimination.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition

Article 1 of the Convention. Legal protection from discrimination. Recalling its previous comments regarding the legal protection from discrimination available under the Constitution, the Committee notes with satisfaction that its section 15 was amended in 2004 to include the prohibited ground of sex. The Committee requests the Government to take steps so that protection from discrimination based on social origin is also ensured, and to provide information on any cases regarding discrimination in employment and occupation decided by the courts. Recalling 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”, please indicate how this provision has been and is being applied in practice.

The Employment Act. The Committee notes the Government’s indication that the Employment Act is being amended. Recalling its previous comments noting that the Employment Act currently only prohibits discrimination in respect of termination of employment contracts, the Committee hopes that the Government will take this opportunity to include more comprehensive provisions to prohibit direct and indirect discrimination in employment and occupation, including with regard to recruitment and selection, all terms and conditions of employment, and training. Please indicate any further developments in this regard.

Sexual harassment. The Committee notes that the Public Service Act was amended in 2000 to include new provisions on sexual harassment. Section 32(1) declares sexual harassment to constitute misconduct. A definition of sexual harassment is set out in section 32(2). The Committee requests the Government to provide information on the number of cases that have been brought under these provisions. Noting the Government’s indication that most institutions in the private sector have not yet put in place policies on sexual harassment, the Committee recommends that the Government includes similar provisions in the Employment Act.

Article 2. Equality of opportunity and treatment of men and women. The Committee notes from the Government’s report that it has adopted a gender mainstreaming strategy to ensure that a gender perspective is included in all policies and programmes; gender audits have been carried in a number of ministries, including the Ministry of Labour and Home Affairs. The Department of Women’s Affairs has continued its awareness-raising activities on gender equality issues. A review of all laws that discriminate against women is still ongoing. While there is no explicit policy on affirmative action, the Government has nominated women to decision-making positions and allocated special funds to promote women’s participation in economic and income generating activities. The Committee requests the Government to continue to provide more detailed information on the specific measures taken or envisaged to promote and ensure equality of opportunity of men and women in employment and occupation, including access to vocational training and access to credit. Please also provide statistical information available on women’s participation in the labour market (public and private sectors), including self-employment, as well as their share in the informal economy. Finally, the Committee requests the Government to provide information on the measures it takes to eliminate customary practices that are detrimental to women’s equality of opportunity and treatment in employment and occupation, such as the practice of legal guardianship by men over unmarried women.

The situation of indigenous peoples. The Committee recalls that discrimination as set out in Article 1 of the Convention covers discrimination against indigenous peoples and that the national policy to promote equality of opportunity and treatment to be adopted and implemented in accordance with Article 2 should include measures to eliminate discrimination against these peoples. The Committee requests the Government to provide information on the measures taken in this regard, including measures to promote and facilitate the ability of indigenous peoples to pursue their traditional occupations.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. Legal protection from discrimination. Recalling its previous comments regarding the legal protection from discrimination available under the Constitution, the Committee notes with satisfaction that its section 15 was amended in 2004 to include the prohibited ground of sex. The Committee requests the Government to take steps so that protection from discrimination based on social origin is also ensured, and to provide information on any cases regarding discrimination in employment and occupation decided by the courts. Recalling 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”, please indicate how this provision has been and is being applied in practice.

The Employment Act. The Committee notes the Government’s indication that the Employment Act is being amended. Recalling its previous comments noting that the Employment Act currently only prohibits discrimination in respect of termination of employment contracts, the Committee hopes that the Government will take this opportunity to include more comprehensive provisions to prohibit direct and indirect discrimination in employment and occupation, including with regard to recruitment and selection, all terms and conditions of employment, and training. Please indicate any further developments in this regard.

Sexual harassment. The Committee notes with interest that the Public Service Act was amended in 2000 to include new provisions on sexual harassment. Section 32(1) declares sexual harassment to constitute misconduct. A definition of sexual harassment is set out in section 32(2). The Committee requests the Government to provide information on the number of cases that have been brought under these provisions. Noting the Government’s indication that most institutions in the private sector have not yet put in place policies on sexual harassment, the Committee recommends that the Government includes similar provisions in the Employment Act.

Article 2. Equality of opportunity and treatment of men and women. The Committee notes from the Government’s report that it has adopted a gender mainstreaming strategy to ensure that a gender perspective is included in all policies and programmes; gender audits have been carried in a number of ministries, including the Ministry of Labour and Home Affairs. The Department of Women’s Affairs has continued its awareness-raising activities on gender equality issues. A review of all laws that discriminate against women is still ongoing. While there is no explicit policy on affirmative action, the Government has nominated women to decision-making positions and allocated special funds to promote women’s participation in economic and income generating activities. The Committee requests the Government to continue to provide more detailed information on the specific measures taken or envisaged to promote and ensure equality of opportunity of men and women in employment and occupation, including access to vocational training and access to credit. Please also provide statistical information available on women’s participation in the labour market (public and private sectors), including self-employment, as well as their share in the informal economy. Finally, the Committee requests the Government to provide information on the measures it takes to eliminate customary practices that are detrimental to women’s equality of opportunity and treatment in employment and occupation, such as the practice of legal guardianship by men over unmarried women.

The situation of indigenous peoples. The Committee recalls that discrimination as set out in Article 1 of the Convention covers discrimination against indigenous peoples and that the national policy to promote equality of opportunity and treatment to be adopted and implemented in accordance with Article 2 should include measures to eliminate discrimination against these peoples. The Committee requests the Government to provide information on the measures taken in this regard, including measures to promote and facilitate the ability of indigenous peoples to pursue their traditional occupations.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the first report submitted by the Government of Botswana.

1. Article 1(1) of the Convention. The Committee notes the protection provided in the Constitution. Noting that the ground of social origin is not covered and that the ground of sex is only manifest in section 3, it requests information on the manner in which discrimination on these two grounds is prohibited.

2. The Committee also notes that the relevant provision of the Employment Act, 1982 (section 23(d)), containing rounds of discrimination, applies only to termination of employment contracts. Therefore, the Committee requests the Government to indicate the manner in which non-discrimination is prohibited in relation to access to vocational training, employment, promotion, and terms and conditions of employment. The Committee also requests the Government to clarify whether the Employment Act, 1982 covers the public service.

3. The Committee would be grateful for clarification on the legal status of the Public Service Charter.

4. Article 1(1)(b).  The Committee notes the Botswana National Policy on HIV/AIDS containing basic principles including equal treatment of workers with HIV/AIDS with other workers, retaining workers with HIV/AIDS as long as they are medically fit to work, and protection of workers with HIV/AIDS from stigmatization and discrimination. In this regard, the Committee asks the Government to indicate whether it intends to define HIV/AIDS status as a ground upon which discrimination is prohibited in employment and occupation under Article 1(1)(b) of the Convention.

5. Article 1(2). While recognizing that the overall purpose of these provisions is to protect persons, the Committee requests the Government to indicate how article 15(4)(e) of the Constitution has been applied in practice. The Committee also notes that article 15(5) of the Botswana Constitution defines another exception in the principle of non-discrimination to the effect that it will not be considered discriminatory if a law makes provision on qualifications for service as a public officer or as a member of a disciplined force or for the qualifications for the service of a local government authority or a body corporate established directly by any law. In this regard, the Committee requests the Government to provide a copy of laws containing such provisions for a disciplined force (a naval, military or air force; a police force; or a prison service), local government authority and private enterprises, and to clarify how they are implemented in practice.

6. Article 2. The Committee notes that the Policy on Women in Development had been adopted in order to promote, among others, equal opportunity and treatment in respect of employment and occupation and the National Gender Programme Framework aimed at operationalizing government commitment on gender and development. It also notes the National Policy on Vocational Education and Training based on an objective, among others, to achieve equity in the provision of vocational education and training for disadvantaged groups such as women and disabled persons. The Committee would be grateful for additional information on the implementation of these policies and the results achieved in applying the Convention. Noting that the abovementioned policies are mostly related to women, the Committee would be grateful if the Government would indicate how national policies are declared and pursued to promote equality on grounds other than sex, listed in the Convention.

7. Article 3(a). Please provide information on cooperation of employers’ and workers’ organizations in the application of the Convention and in the promotion of national policies, such as the Policy on Women in Development, the National Gender Programme Framework and the Botswana National Policy on HIV/AIDS, and other relevant national policies.

8. Article 3(b). The Committee requests information on awareness-raising in women’s equality issues and any other promotional activities undertaken by the Department of Women’s Affairs and the National Council on Women.

9. Article 3(c). The Government indicated that it had engaged a consultant to review all laws which discriminate against women with a view to removing provisions which appear to discriminate against women and, accordingly, is making recommendations. The Committee welcomes the Government’s initiative and requests information on how the recommendations (in particular Nos. 1, 2, 3, 6, 7-13) contained in the report of the consultancy prepared by the Ministry of Labour and Home Affairs are followed up.

10. Article 3(d). The Committee notes that the Public Service Act, 1998, as amended, has the following section:

(section 31(f)):

(It is misconduct for a public officer -)

(f)  who is an appointing authority, to appoint or promote any person to a post in the public service or send any person on a course of training on the basis of consanguinity, affinity, amity, amorous relationship, tribe, favouritism, or on any other consideration other than on merit based on fair and open competition;

In this regard, the Committee invites the Government to consider including in this provision the grounds of discrimination stipulated in the Convention.

11. Noting that section 15(2)(b) of the Public Services Act, 1998 provides that "a female public officer may retire from the public service on marriage" while other men and unmarried women must be 45 years of age to be eligible, the Committee asks the Government to consider repealing the provision or extending it to men as well.

12. Article 3(e). In addition to the adoption of the National Policy on Vocational Education and Training, please provide information on how non-discrimination and equal opportunity is ensured in the activities of the vocational guidance, vocational training and placement services.

13. Article 4. The Government indicated that no legislation or administrative measures govern employment or occupation of persons suspected of or engaged in activities prejudicial to the security of the State. In this regard, the Committee asks the Government how persons are able to challenge decisions in employment, both in the public and private sectors, based on allegations of engaging in activity prejudicial to the security of the State.

14. Please provide statistical information on enforcement actions, information on men and women’s participation in employment and occupation, as well as other research and data that would allow the Committee to assess the application of the Convention in practice.