Botswana: Reprimanded for Denying Critic Access to Courts

The African Commission on Human and Peoples’ Rights has found that national security is not a legitimate justification for infringing on the right of access to courts. The Commission issued the decision after a five-year legal battle by Australian academic Kenneth Good, who was declared ‘a prohibited immigrant’ under the Botswana Immigration Act.  He was deported after he co-authored an article critical of the President of Botswana.  The landmark decision was emphatic in asserting the importance of judicial oversight of executive decisions and is likely to influence the reasoning of domestic courts in Africa.

 

For fifteen years, Good, who held an Australian passport, was a university lecturer in political science in Botswana. When he wrote an article that was critical of presidential succession in Botswana, the president expelled him from the country on grounds of “national security.”  Good was given only 56 hours notice to depart Botswana.

 

Good argued that his treatment violated multiple provisions of the African Charter on Human and Peoples’ Rights, including the right ‘to have his cause heard’.  The government of Botswana contended that the Botswana Immigration Act permitted the President of Botswana to expel a non-citizen ‘in consequence of information received from any source deemed by the President to be reliable.’  The Act did not provide the accused with any right to challenge the decision in court and it did not impose any duty on the President to give reasons for his decision.

 

An amicus brief submitted by the Open Society Justice Initiative submitted to the African Commission on Human and Peoples’ Rights analyzed the question of the treatment of non-citizens.  It argued that Botswana employed the pretext of immigration law to make impermissible distinctions between the rights of citizens and non-citizens. Only one article of the African Charter on Human and Peoples’ Rights explicitly refers to the rights of citizens, and that is Article 13, on political participation and public employment. No other article makes a distinction between citizens and non-citizens in the enjoyment of rights. Although distinctions between citizens and non-citizens can be made, the amicus brief argued that exceptions to the general principle of non-discrimination between citizens and non-citizens are limited and must be construed narrowly.

 

Click here for an article in the Business Day (South Africa).

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