Good v Botswana
Forum: African Commission on Human and Peoples' Rights
INTERIGHTS' role: Co-representative
Keywords: Freedom of expression, due process, guarantees, academic freedom
BOTSWANA’S IMMIGRATION LEGISLATION INCONSISTENT WITH INTERNATIONAL HUMAN RIGHTS LAW
In a decision taken at the May 2010 session of the African Commission on Human and Peoples’ Rights and adopted at the AU summit in July 2010, the Commission found against the Government of Botswana in a ruling that highlights the importance of academic freedom in a democratic society. The decision also highlights the importance of due process guarantees in relation to the deportation of foreign nationals. The Commission found that the expulsion of an Australian academic, Professor Good, without affording him an opportunity to challenge the decision, was not justifiable on the basis of domestic laws or under the pretext of national security. It recommended that Botswana take steps to ensure that its Immigration Act and practices conform to international human rights standards.
Professor Kenneth Good had lived and worked in Botswana for a number of years. A university lecturer at the University of Botswana, he co-wrote an academic article voicing a critical opinion of presidential succession in Botswana. On grounds of national security, the President expelled him from the country with less than three days notice; an expulsion which resulted in his separation from his 17 year old daughter. Professor Good was given no reason for his expulsion and no opportunity to contest it. The Botswana Courts endorsed this decision, finding that the President was empowered to act in what he considered to be the best interests of the country. Aiming to seek recourse for his expulsion, Professor Good took his case to the Commission, alleging violations of his rights as set out in the African Charter on Human and Peoples’ RIghts. He was represented by two South African lawyers and international human rights NGO INTERIGHTS.
In its first decision that looks at academic freedom in detail, the Commission found that Professor Good’s article posed no national security threat and that Botswana’s actions were unnecessary, disproportionate and incompatible with the practices of democratic societies, international human rights norms and the African Charter. The restrictive provisions of the Immigration Act denied the High Court and the Court of Appeal the right to scrutinise the President’s declaration, and meant that Professor Good had no meaningful opportunity to challenge this restriction of his rights. The Commission also condemned ‘ouster clauses’ – provisions in the legislation exempting particular actions from judicial review – in its decision and stressed the importance of judicial oversight over executive decisions particularly on issues of deportation. The African Commission affirmed that due process guarantees in the deportation of foreign nationals cannot be side stepped by invoking national security concerns.
Judy Oder, Lawyer at INTERIGHTS, welcomed the decision stating that: ‘The case is a graphic illustration of how wide-reaching “national security” exceptions have been manipulated to suppress legitimate dissent and prevent judicial oversight of executive action, in contexts that in reality have nothing to do with national security. The Commission has reminded States that academic freedom is a form of protected speech in any democratic society and should not be muzzled at the whim of the executive.’
The Commission was clear in its condemnation of governments ousting the Courts of their role: ’an ouster clause, be it through a military decree or an Act of Parliament has the same effect of preventing national judicial organs from entertaining alleged human rights violations, thus denying victims of human rights abuses the right to have their causes heard.’ In stressing the importance of judicial oversight over executive decisions particularly on issues of deportation, the Commission was of the view that ’Where a government has reason to believe that a citizen or a non-national legally within its territory poses a threat to national security, it should bring evidence before the courts against the person. Not doing so may lead to the possibility of abuse where individuals can be detained or expelled on mere suspicion of being security threats...’
Commenting on the African Commission’s decision, Anton Katz SC and Max du Plessis, the South Africa based lawyers who co-represented Professor Good with INTERIGHTS before the Africa Commission said: ‘This is a landmark case not only on the international plane but also has direct importance for domestic constitutional regimes throughout Africa. The commission's decision confirms that presidential powers are constrained by the rule of law, including in respect of foreigners in the immigration context. It is now to be expected that the decision will be scrutinized by all authorities and to the extent that their domestic laws are inconsistent with the provisions of the African Charter as interpreted by the commission in the Good case, that they will amend those laws accordingly.’
Professor Kenneth Good argued that he was not afforded any meaningful opportunity to challenge his expulsion either by way of hearing before the expulsion order was made, or by way of appeal after the order was made. His comments, which were opinions expressed in the course of his functions as Professor of Political Science at the University of Botswana, were academic in nature, and related to the function of government in a democratic society. Such critique was an inherent aspect of the exercise of his functions as an academic in this field, who was not only entitled but effectively compelled by his discipline to be prepared, where appropriate, to write critically about government issues.
Professor Good also argued that his expulsion was patently not related to any national security threat to the country but to the suppression of political analysis and criticism. As a result of his expulsion, he was separated from his 17 year old minor daughter, who was not in a position to follow him given the critical stage of her studies. The lack of information, and the fact that the restrictive provisions of the Immigration Act denied the High Court and the Court of Appeal the right to scrutinise the President’s declaration, meant that Professor Good had no meaningful opportunity to challenge this restriction of his rights. Finally, he requested that the African Commission adopt strict scrutiny of discrimination on the grounds of political opinion, given that pluralism and diversity are fundamental ingredients of any democratic society.
The African Commission found that ss 11(6) and 36(a) of the Botswana Immigration Act which prohibits a review of the President’s decision absolves all judicial organs of competence in the matter thus depriving victims whose rights are threatened or actually violated by the President’s decision from being heard by the judicial organs to protect their rights. It found that this violates due process guarantees and threatens the independence of the judiciary. It concluded that the right to receive information, especially where that information is relevant in a trial for the vindication of a right, cannot be withheld for any reason as withholding such information compromises court proceedings and places the victim’s rights at risk.
According to the African Commission, Professor Good’s article posed no national security threat and the action of Botswana was unnecessary, disproportionate and incompatible with the practices of democratic societies, international human rights norms and the African Charter. In the opinion of the Commission Professor Good’s article was purely academic work criticising presidential succession in Botswana: ’There is nothing in the article that has the potential to cause instability, unrest or any kind of violence in the country. It is not defamatory, disparaging or inflammatory. The opinions and views expressed in the article are just critical comments that are expected from an academician of the field; but even if the government, for one reason or another, considers the comments to be offensive, they are the type that can and should be tolerated. In an open and democratic society like Botswana, dissenting views must be allowed to flourish, even if they emanate from non-nationals….The expulsion of a non-national legally resident in a country, for simply expressing their views, especially within the course of their profession, is a flagrant violation of Article 9(2) of the Charter.’
The hasty manner in which the expulsion was carried out without allowing Professor Good to make arrangements for the care of his minor daughter was contrary to the State’s obligation under the African Charter to protect and assist the family. The Commission found that Professor Good was treated discriminately by the State because of the political views he expressed in the paper he wrote. In response to the State’s arguments that the African Charter has no force of law because Botswana is a dualist state, the Commission reasoned that the fact that the provisions of the Charter are not domesticated into the laws of Botswana does not bar the Commission from assessing the compatibility of Botswana laws and executive actions with the provisions of the Charter. The African Commission recommended that the Government of Botswana provides adequate compensation to Professor Kenneth Good for the loss and cost he incurred as a result of the violations.
Despite the fact that Botswana is a signatory to the African Charter, at this stage it has indicated that it does not intend to implement the judgment, an intention that the Botswana Law Society has referred to as ‘regrettable’. By implementing this decision, the Government of Botswana would be respecting its international human rights obligations. We intend, in partnership with others, to press for full implementation of the decision.
For further information please contact:
Judy Oder, Africa lawyer at INTERIGHTS, firstname.lastname@example.org Tel: +44 (0)20 7843 0479
Anton Katz SC email@example.com Tel: +27 21 424 9695
Max du Plessis firstname.lastname@example.org Tel: +27 31 260 2672
Decision on the merits 313/05 Kenneth Good v Republic of Botswana
INTERIGHTS brief (on the merits) and a further subsmission on the merits to the African Commission on Human and Peoples' Rights
Coverage of the decision from the Times Higher Education, Sunday Standard and AllAfrica.com