Justiciability of Children’s Economic, Social and Cultural Rights in Botswana

Abstract  Children are a vulnerable group, hence, they need special protections. Ratifying childrenprotecting instruments including the Convention on the Rights of the Child (CRC) and African Charter on the Rights and Welfare of the Child (ACRWC) provide these protections. Botswana acceded to the CRC and ACRWC in 1995 and 2001 respectively. Beyond ratification and domestication of these instruments, however, rights must be asserted through justiciability mechanisms including State reports. Otherwise, they remain paper rights. This exploratory study investigated the question; ‘is Botswana complying with its reporting obligations?’ by interviewing key actors involved in meeting the reporting obligations on behalf of the government of Botswana. While the study consultants confirmed that Botswana is presently in breach of complying with reporting requirements for both the CRC and the ACRWC, the context for reporting is complex and important to consider. With enhancements to elements in this context that impact on reporting, this paper argues that it is not enough to merely ratify child-protecting conventions without ensuring their justiciability. The paper ends with recommendations for moving forward in Botswana to ensure child-friendliness, enforceability and justiciability of child-protecting conventions.


Introduction
This paper is concerned with children's Economic, Social and Cultural (ESC) rights, therefore, it is important to define these key terms. In Botswana, the legal definition of a child is any person under the age of 18 (see Children's Act, 2009-RoB, 2009). ESC rights are those human rights relating to the workplace, social security, family life, participation in cultural life, and access to housing, food, water, health care and education (Office of the United Nations High Commissioner for Human Rights, 2014). According to Roodt (2008), rights can be organized into the following classes: (i) first generation (civil and political rights); (ii) second generation (ESC rights); and (iii) third generation (developmental and environmental rights). Economic Rights include the right to food, shelter, work and income; Social Rights include the right to social security, physical and mental health; and Cultural Rights include the right to education and the rights of minority groups (Shultz, 2002). ESC rights are considered to be humanitarian and aim at providing human beings with a right to basic subsistence needs and thus, have a dignified life (Mapulanga-Hulston, 2002). The main objective of ESC rights is "to put a state under a legal obligation to utilise its available resources maximally in order to redress social and economic imbalances and inequalities" [italics in original] (ibid, p. 34). Under the rubric of international human rights law, the duty of governments to guarantee ESC rights have three important elements: (i) respect; (ii) protection; and (iii) fulfilment (ibid). Furthermore, like other human rights, ESC rights contain dual faces: freedom from the state and freedom through the state. To illustrate, the right to adequate housing covers a right to be free from  (1990); and Convention on the Rights of Persons with Disabilities (2006). Particularly, the ICESCR enjoins States Parties to ensure ESC rights in their jurisdictions. In this regard, Article 2 of the ICESCR states that governments are obligated to […] take steps, individually and through international assistance and co-operation, […]  In a related vein, there are regional treaties including, for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) [and its First Protocol (1952) The question of the divisibility between Civil and Political Rights (CPR) and Economic, Social and Cultural Rights (ESCR) emerges in debates regarding conceptualizing international human rights in a holistic manner that emphasizes universality, interdependence, indivisibility and justiciability of CPR and ESCR (Petersmann, 2003;Arambulo (1999); Merali and Oosterveld (2001);Nowak (2005); and Skogly (2001). The currency of the argument is that CPR and ESCR are indivisible and the indivisibility is interpreted in many ways. For example, scholars argue that "they are complementary, mutually reinforcing and best realised when implemented together"; CPR and ESCR sit on the same pedestal; and they are "the same and without grounds for distinction, or as constituting inseverable parts of a complete form of rights" (Anthony, 2010, p. iv). Others argue against the indivisibility of CPR and ESCR (Whelan 2010) and stress that there is a significant divide between the two sets of human rights. In addition to debates regarding indivisibility of rights, there is another longstanding debate in the literature regarding the justiciability, legitimacy and legality of ESC rights (Addo, 1992;Christiansen, 2007;Dennis and Stewart, 2004;Hill, 1992;Langford, 2009;Mapulanga-Hulston, 2002;Mbazira, 2009;Mubangizi, 2006;Nolan et al., 2007;Pieterse, 2004;Porter, 2008;Sachs, 2000;Wiles, 2006). Fundamental to the debate is whether ESC rights fall under the realm of rights and, as Vierdag (1978, p. 69) asks, "what is the legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights (ICESCR)?" Relatedly, are they justiciable?
In response to this question, then UN High Commissioner for Human Rights, Louise Arbour, offered the following response " [i]t is now widely recognized that there is nothing inherently non-justiciable about economic, social and cultural rights" (United Nations, 2007). Similarly, some contend that even if the ESCR are justiciable, they are open-ended and indeterminate (see Dennis and Stewart, 2004). Added to these questions are issues of terminology regarding enforceability and justiciability.
Mapulanga-Hulston (2002: 37) defines enforceability and justiciability as; "the enforcement of human rights deals with the identification of the entitlements and duties created by the legal regime, which have to be maintained and executed". For justiciability, she notes that it "presupposes the existence of a review mechanism to determine non-compliance with the terms of the legal regime". Although these are distinctively different concepts, justiciability and enforceability are related in the sense that justiciability is a direct follow-up of enforceability (2002:37). For expositional clarity, this paper is concerned with justiciability.

Justiciability of Children's ESC Rights
While ratifying conventions and charters is laudable, it is important that rights be asserted through enforceability and justiciability. Justiciability comes in two variants; (i) adversarial; and (ii) inquisitorial (Addo, 1992). Under adversarial justiciability, whose enforcement is done through the courts, the beneficiary of ESC rights must file a complaint in court alleging that his/her rights have been violated. Afterwards, the violator, for example the State, will be afforded an opportunity to provide a defence. In the end, a determination will be made as to whether a violation occurred and remedial action will be 2015 Canadian Journal of Children's Rights 76 recommended (ibid). Therefore, if one can successfully argue in court that such rights have been denied, therefore, one suffered injury, the courts can compel the government to remedy the situation. On the other hand, inquisitorial justiciability involves the institution of an enquiry mechanism and involves an examination of state reports (Addo, 1992). This is an obligation-based type of justiciability that involves review mechanisms such as those undertaken by independent bodies, for example Human Rights Watch and UN Committee on Economic, Social and Cultural Rights, when they examine state reports (Riedel, 1999).
The purpose of inquisitorial justiciability is to judge the extent to which States Parties have complied with their human rights undertakings (ibid). Therefore, if the States Parties fall short of their undertakings, they are informed and remedial action is recommended.
In terms of both the CRC and ACRWC, the applicable justiciability is inquisitorial.
With regard to the CRC, the Committee on the Rights of the Child adopted reporting procedures in October 1994 (UN Committee on the Rights of the Child, 1994). The Committee has designed reporting processes and dialogues with States Parties in such a manner that the latter deals with principal concerns in a methodical and informative manner (ibid). Since States Parties are enjoined to submit initial reports and subsequent ones, the Committee has prepared guidelines regarding the form and content of these reports under Article 44, paragraph 1(a) of the CRC. The procedures include some of the following: (i) general guidelines for reporting; (ii) examination of States Parties' reports; (iii) procedures for follow-up action; and (iv) procedure in relation to overdue reports While the question of the justiciability, legitimacy and legality of ESC rights is yet to be conclusively settled, some countries have enshrined these rights into their constitutions including, for example, South Africa [chapter two of the Constitution of South Africa contains the Bill of Rights that protects ESC rights] and Uganda (ESC rights were enshrined into the 1995 constitution). In this regard, South Africa has developed case law on the justiciability of ESC rights and its courts of law have handed down judgements that affirm the justiciability of ESC rights (see Government of the [2000]: SAFLLI, 2000). In this case, a group of residents who were living on the edge of a sports field successfully filed a claim that their right to housing was being violated.

Republic of South Africa and Aothers v Grootboom and Others
A second group of African countries including Lesotho, Ghana, Uganda and Nigeria have socio-economic rights expressed as directive principles of state policy [DPSP] (Dinokopila, 2013). A third group of countries including Botswana have neither entrenched ESC rights into their national constitutions nor expressed them in a manner similar to DPSP (ibid). Despite unresolved questions surrounding the justiciability, legitimacy and legality of ESC rights, there is a consensus that the State must provide social services as advocated by the ESC rights regime. Thus, ignoring ESC rights can result in dire consequences such as disease, poverty and death.

ESC Rights in Botswana
In Botswana, children's ESC rights are provided through the Convention on the The Children's Act aims to protect, promote and fulfill children's ESC rights in Botswana.
It is commendable that Botswana amended the 1981 Children's Act with a view to "give effect to Botswana's obligation in terms of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child" (BOPA, 2009, p. 4). In accordance with best practices, the Children's Act enjoins individuals and courts to act in the best interest of the child. Section 5 provides that "a person or the court performing a function or exercising a power under this Act shall regard the best interests of the child as the paramount consideration" (RoB, 2009). In addition, section 6 spells out factors that are used in determining the best interest of the child, principally, the need to protect the child from harm. The Children's Bill of Rights is provided in sections 9 through 26 and it is important to note that this supplements the rights that are set out in chapter II of the Constitution of Botswana (see RoB, 1997). The Children's Bill of Rights provides for some of the following: right to life; right to a name; right to nationality; right to health; right to shelter; right to clothing; right to education; right to leisure, play and recreation, right to freedom of expression and right to protection against harmful labour

CRC and ACRWC
It is important to note that both the CRC (Convention on the Rights of the Child) and ACRWC (African Charter on the Rights and Welfare of the Child are international child-friendly and child-protecting instruments. The CRC is the first legally-binding international instrument [see article 50] (Butler, 2012) and incorporates a full range of human rights: civil, cultural, economic, political and social rights (UNICEF-Botswana, 2005). It has been called "a landmark in the history of childhood" (Freeman, 1996, p. 1).
The ACRWC entered into force on 29 November 1999(OAU, 1990  The ACRWC is premised on the fact that African children face a host of problems due to a combination of ESC and traditional factors, coupled with developmental circumstances, natural disasters, armed conflicts, exploitation and hunger (OAU, 1990).
Largely due to physical and mental immaturity, they need special safeguards and care Protection specialists who deal specifically with the implementation of the CRC, ACRWC and the Children's Act on a day-to-day basis. The interviews were anonymised. In addition to interviews, secondary data were collected from various sources, for example, books, government reports and newspapers. 3

Discussion
One of the issues that emerged from the interviews was that asserting ESC rights necessitated their justiciability. That is, all the interviewees agreed that it was futile for the government to grant rights that were not justiciable, either on an adversarial or inquisitorial note. Hence, the interviewees expressed a consensus position that timely and periodic reporting was an essential accountability and justiciability mechanism by RD] did not have. In this regard, they stated that children's programmes were implemented by many Ministries. At the same time, there are no desk officers who specifically deal with children's issues and, therefore, data collection was problematic. They explained that there is a poor culture of record-keeping and reporting (including their parent Ministry). Hence, in some instances, some Ministries either submitted unsatisfactory reports or did not submit at all without consequence. In fact, one of the interviewees stated that the poor quality of the initial CRC report, submitted on 10 January 2003, could be attributed "to the quality of data that was [sic] submitted and we were ordered to provide more data in a follow-up report" (Interview, 26 April 2012). They noted the difficulty in obtaining data from other sources and from other Ministries.
In addition to difficulty in obtaining data and problematic record keeping systems, interviewees from the Department of Social Protection noted that both the CRC and ACRWC reporting formats required specific budget information on children's programmes. They noted that obtaining this information was problematic because Ministerial budgets were largely aggregated. Thus, it was impossible to isolate children's programming budgets. In addition, the interviewees stated that they were asked to provide information on budget allocations for categories of people including Indigenous children and AIDS orphans. They stated that that was equally problematic because no specific data were collected on these groups. In a related vein, one interviewee stated that "collecting information on AIDS orphans could be problematic given the stigma that is attached to HIV in Botswana" (interview, 26 April 2012). Similarly, the term indigenous people was a controversial one and also lacked legal definition therefore further complicating gathering information about them. As a result responding accurately according to both the CRC and ACRWC reporting formats was nearly impossible.
Revealingly, the interviewees noted that the Children's Act was yet to be fully implemented, largely due to lack of regulations (see BOPA, 2012 for confirmation). 2015 Canadian Journal of Children's Rights 84 According to one interviewee, "the Act is a blue print, hence, the need to develop guidelines to operationalise it" (Interview, 25 April 2012). They explained that the MLG & RD developed regulations in 2009 and forwarded them to the Attorney General's Chambers for input and final drafting. The regulations have yet to be finalised, submitted to Cabinet and Parliament. Since the regulations were drafted in 2009, one interviewee noted that "there is a danger that they will be out-dated by the time they are released for implementation and also out of touch with recent developments. Hence, they may need to be updated" (interview, 25 April 2012). However, as another interviewee explained, despite the absence of regulations, the Children's Act is being implemented although in an un-coordinated fashion. Similar to the difficulties noted above regarding reporting mechanisms for the CRC and ACRWC, there is no defined reporting format for the implementation of the Children's Act yet the Department of Social Protection is expected to produce annual reports on its implementation. The UNICEF-Botswana officer seconded to the Department of Social Protection stated that the absence of the format did not obviate the need to produce these annual reports. He stated that "we are intending to submit the first report to Parliament in July" (interview, 15 May 2012). At the time of this writing, this report has yet to be submitted.
Apart from the difficulties surrounding reporting mechanisms, interviewees noted that troublingly, some public officers were yet to be conversant with the new Children's Act. As much as the Department of Social Protection continually educates both officers and members of the public on the Act, one interviewee reported that some social workers, police officers, and judicial officers are unfamiliar with it. This becomes problematic given that they must use the Act in their daily dealings with children's issues, especially social workers. In fact, some service providers still refer to the old Children's Act (1981) when dealing with children's issues. To illustrate, during the 2011 public sector strike in which some students rioted in support of their striking teachers and were subsequently arrested, one interviewee stated that "a senior police officer stated that the provisions of the Children's Act of 1981 relating to children in conflict with the law will be applied in court" (Interview, 25 April 2012

Follow up Interview
On 12 September 2014, an email was sent to the Department of Social Protection to request an update on the status of the outstanding reports and whether there had been progress regarding complying with reporting requirements of both the CRC and ACRWC since the initial interviews for this research. The Department replied confirming that "CRC and ACRWC reports have not been submitted and we are currently working with UNICEF to incorporate the fourth report on the implementation of the CRC as well as the initial report on the ACRWC" (email, 12 September 2014). Furthermore, it was stated that "a consultant has been engaged to finalise the reports by end of December 2014" (ibid). At the time of this writing (spring 2015), the situation remains unchanged and reports remain outstanding.

Further Thoughts
It is futile to grant rights that are not justiciable. Both the CRC and ACRWC provide for inquisitorial justiciability through Articles 44 and 38 respectively through reporting mechanisms. The government of Botswana has yet to submit requisite reports on time and is in breach of its reporting obligations. While there are a number of systemic issues that emerged from the interviews conducted for this exploratory study involving the quality and accessibility of data, cooperation between departments to share data, and problems with distinguishing children's programming data in existing budgets, the implications for children's ESC rights remain. As Matias (2011: 365) argues "rights are tools of empowerment." Without country reports regarding how children's ESC rights are being respected and upheld, children can suffer disempowering effects. Moving forward, a few key recommendations are offered in view of the urgency of this point.
First, in order to produce reports in a timely manner, it is a pre-requisite that accurate and up-to-date records be kept. It was apparent from the interviews that poor record-keeping was a systemic problem that made the production of reports impossible.
Hence, it is imperative that there be a culture of good record-keeping in the public sector and government officials must build capacity for both recording-keeping and archiving training.
Second, while the implementation of the Children's Act is an onerous task beyond 2015 Canadian Journal of Children's Rights 86 the Ministry of Local Government and Rural Development that involves many service providers including social workers, police officers and judicial officers, training is required to enable them to implement the Children's Act in their everyday activities. It is worrying from preliminary information gleaned from interviews that some of these implementing officers are not conversant with the amended Children Act (2009)  Third, there is a need to educate officers as to the importance of their responsibilities to comply with reporting processes and to provide data to those seeking to complete reports. It appears from this exploratory research that the quality of the reporting process needs to be significantly improved, including compiling information in a timely and efficient manner so that they can be used in CRC and ACRWC reports. While there are no consequences at this time for non-action on compliance as per the Botswana Public Service Customer Service Standards, this might be a consideration in future.
Fourth, Botswana should be encouraged to ratify the third Optional Protocol to the CRC on a communications procedure approved by the UN General Assembly on 19 December 2011. This allows individual children to submit complaints regarding specific violations of their rights under the Convention and its first two optional protocols.
Ratification will force the government to comply with reporting obligations because children will report it to the UN Committee on the Rights of the Child if it continues to fail to report.
Fifth, for children's ESC rights to enjoy ultimate legal protection and justiciability, they must be enshrined in the constitution. Hence, Botswana can utilize lessons learned from approaches implemented in South Africa, Namibia, Ghana and Uganda (see Mubangizi, 2006). South Africa, in particular, is the pioneer in this regard (see Verma, 2005) and its courts often affirm ESC rights (see Liebenberg, 2002). Finally, a Children's Rights Ombudsperson must be appointed in order to audit the implementation of children's ESC rights by drawing from best practices (e.g., see Kilkelly, 2015 Canadian Journal of Children's Rights 87   2006). In terms of benching marking, Botswana can benchmark from the region including Mauritius (the first county to establish a Children's Rights Ombudsperson in Africa), Namibia, and South Africa and further afield from the European Network of Ombudspersons for Children and Norway (the first government in the world to establish an office of a children's ombudsperson in 1981).

Conclusion
The promulgation of the Children's Act in 2009 ushered in a new era regarding children's ESC rights in Botswana. The Act incorporates both the CRC and ACRWC.
However, for rights to have a meaning to the grantee, they must be asserted. Thus, rights must lend themselves to justiciability. Regarding the CRC and ACRWC, inquisitorial justiciability is effected through reporting obligations. States Parties are enjoined to submit an initial report and subsequent ones. Unfortunately, Botswana is presently in breach of its reporting obligations. Moving forward, Botswana must achieve oft-repeated assertions that it is child-friendly by speedily and fully implementing the Children's Act and also fulfilling its CRC and ACRWC reporting obligations. When it does so, it will burnish its credentials as a child-friendly nation.