Arms – Human Trafficking Not Criminal in Botswana

• Constitution says No person shall be charged, convicted without written law
• Section 10 forbids retroactive conviction, punishment of a person over an unwritten law
• Defence Ministry says laws in pipeline


While Hostage taking, Arms transfers and trafficking are increasingly becoming major security threats in Africa, Botswana- undoubtedly Africa’s most peaceful and stable country is however yet to criminalise these heinous crimes in what leaves citizens dangerously vulnerable.
Arms Trafficking is the trafficking of contraband weapons and ammunition while Hostage Taking is the seizure of a person by a criminal abductor in order to compel another party such as relative, employer, law enforcement or government to act, or refrain from acting, in a particular way, often under threat of serious physical harm to the hostage(s) after expiration of an ultimatum. Hostage taking has been rampant in countries like Kenya, Mali, Algeria and Nigeria among others.
Botswana has not yet criminalised these forms of crimes which are already prevalent in most African states. Non-criminalisation means that no person shall be charged and convicted of these crimes if perpetuated in Botswana.
Section 10(8) of the Botswana Constitution provides that no person shall be charged and convicted of an act or omission unless such an act or omission has been defined by a written law and its penalty prescribed in a similarly written law, while Section 10(4) forbids the retroactive conviction and punishment of a person for committing an act or omission which was not, at the time of the act or omission, the subject of a written law.
Asked about what it could mean, legal expert, advocate Sydney Pilane said as to the implications of such an act or omission, they must depend on the act or omission and whether they cause harm to anybody.
“The example of the possession or dealing in mandrax comes to mind. In the 1980s, certain individuals were arrested because they were in possession of mandrax tablets. They could not be successfully prosecuted for such possession because no written law prohibited such possession then. On making this discovery, government added the possession and dealing in mandrax without a lawful excuse as an offense in a written law and prescribed a penalty for it. The clear implication was that prior to the prohibition, what is notorious as a harmful drug to end-users could be peddled with impunity,” Pilane said.
The law, Pilane adds, also evolves and acts and omissions which were, by deliberate decision or not, did not amount to criminality become enacted such as new circumstances pertaining to them make it necessary that it be so.
“In some cases, harmful unknowns are not prohibited as criminal offenses until they are known. The above example of the possession and dealing in mandrax tablets and cybercrimes afford good examples. It has been so in the past, and it will be so in the future,” he said.
Public Relations officer in the Ministry of Defence, Justice and Security, Samma Tabudi, however says the Penal Code is being amended to among other things include hostage taking as an offence. “The bill is expected to be tabled before the next session of Parliament for consideration,” she said.
On arms and ammunition crimes, Tabudi said the bill aimed at prohibiting trafficking of firearms was published on 28th July 2017 and was submitted to parliament for consideration. The ministry says any arms trafficking is a criminal act, “It perpetuates crime and forms part of proceeds therefore it is not allowed,” it pointed out.
The Arms and Ammunition Act creates offences of unlawful possession of firearms and that of weapons of war. In Botswana no one is allowed to import or export firearms of any form including ammunition without permit. “The acquisition of a firearm is allowed following the approval of the Arms Quota Board and the issuance of an acquisition permit. The number of licenses to acquire firearms in any given year is limited, thus creating a thoroughly controlled environment. There are types or calibre of firearms that are prohibited for any member of the public safe for state apparatus,” Tabudi told The Botswana Gazette.