Human rights lawyer Duma Boko this week revealed that they intend to petition the High Court to challenge the imposition of visa on Basarwa lawyer, advocate Gordon Bennett, and other foreign nationals included on the “visa list”.
Calling for the impeachment of President Ian Khama, whose government he accused of subverting the country’s constitution, Boko said when government subverts the constitution the buck stops with the President.
“We are preparing for an application regarding this.
It may escalate to other foreign nationals included on the visa list,” Boko told The Telegraph in an interview on the sidelines of a case in which former residents of the Central Kgalagdi Game Reserve (CKGR) are taking the government back to court.
Boko said Khama and his government were violating the country’s constitution and should be removed from office.
“We are preparing papers. This is not in defence of Bennett but also the Constitution of Botswana,” said Boko. He added that: “We want to free the Constitution from the hostage President Khama and the government have placed it in.”
Boko pointed out that the constitution entrenches the rule of law; but the authorities were subverting that rule of law.
“When litigants come before court, they have the right to choose their own legal representative. But government conspired to deny the litigants a counsel of their choice,” said Boko.
Such a government, Boko said “insults the constitution of this republic and disregards the rule of law.”
According to Boko, it was a conspiracy by the government to place Bennett on the “visa list” and a calculated move to keep him out of the country.
Boko concluded thus:
“It was meant to and meant him to be a prohibited immigrant.”
In a statement issued in response to The Telegraph questionnaire, the Law Society of Botswana also expressed its concern on the same matter.
“The Society does not take issue with the Government’s right to impose Visa requirements on any foreign national. It is any possibility of irrational use and/or abuse of the provisions that most concerns the Society,” says LSB.
The society believes that imposition of the requirements which is in furtherance of ill motive and/or enables the infringement of rights (especially Constitutional) of individuals violates the tenets of the Rule of Law, which Botswana so readily and frequently states is a proponent of and adheres to.
On the contrary, LSB says, such action seems to indicate a propensity towards Rule by Law, an abomination in modern democracy.
“That the Government of Botswana has rejected the Visa application of Advocate Bennett on the eve of his appearance before the High Court on 29 July 2013, on a matter that is of great importance to the Basarwa may now suggest that the imposition of Visa requirements was always intended to create a barrier to him representing Basarwa in their various Court actions against Government,” says LSB.
The society states that the right to legal representation is fundamental to the fairness of any legal process, particularly before the High Court, where the procedures and the laws that are applicable are alien to those it affects.
“Legal representation by a lawyer of one’s choice is essential for the proper enjoyment of the right to legal representation. The use of foreign counsel from foreign countries in our courts in complex ┬álegal matters and matters of national importance, and those which are of great importance, is provided for in our statute law and has become customary, especially in Constitutional matters,” says LSB.
The Society takes the view that the decision to impose Visa requirements on Advocate Bennett QC without proffering any reasons for such action strengthens the suspicion that Government imposed the requirements specifically to deny the Basarwa litigants their right to legal representation of their choice and therefore a fair hearing contrary to Section 10(9) of the Constitution.
“The imposition of Visa requirements on Advocate Bennett may also have a chilling effect, that is, the ability of both local and external counsel to take on briefs against Government for fear of victimisation,” the Society says.
It says the proper dispensation of justice requires that lawyers should be free to advance arguments on behalf of their clients without fear.
Against this backdrop however, LSB says,  it is likely that in future lawyers may shy away from litigating human rights abuses perpetrated by Government for fear of victimisation.
“For Advocate Bennet QC and other foreign nationals it is Visa requirements and deportations, what of local legal practitioners who are Human Rights Defenders?” asked LSB rhetorically.
Meanwhile Gaborone High Court Judge Justice Lakhvinder Singh Walia on Monday reserved judgement in a case in which Basarwa of the Central Kgalagadi Game Reserve dragged the government back to court for refusing to allow residents who were illegally evicted in 2002 access to the reserve.
Boko argued that the 2006 judgement applies to former residents of the CKGR including those who were not included in the initial case.
On the other hand, Dimpho Phagane of the Attorney General Chambers said the application was not properly put before court arguing the first applicant had no legal right to institute legal proceedings on behalf of other applicants.
