Sunday, October 25, 2020

“Botswana laws should conform to the development of an open and democratic society”

The Botswana Center for Human Rights takes note of the recent decision of the African Commission on Human and Peoples’ Rights (ACHPR) in the case of Kenneth Good versus The Republic of Botswana at its 47 Ordinary Session held in The Gambia from 12 to 26 May 2010.

Kenneth Good was a lecturer in Political Science at the University of Botswana, until his employment was terminated, following his deportation from Botswana on 31 May 2005. He often commented on issues concerning human rights, democracy and the need for responsible citizenship in Botswana. He was declared a prohibited immigrant by President Mogae in February 2005. He unsuccessfully challenged this declaration before the courts of Botswana. DITSHWANELO was accepted by the Court of Appeal as an amicus curiae in the appeal stage of the case of the court. Amicus curiae is the Latin for ‘friend of the court’. It is a status which the Court grants to individuals or organisations who are not official parties to a legal matter. This enables them to present arguments in that legal matter.

The ACHPR, of which Botswana is a member, stated in its decision in the case that Botswana “should take steps to ensure that Sections 7 (f), 11(6) and 36 of the Botswana Immigration Act and its practices conform to international human rights standards, in particular, the African Charter”. These provisions prohibit any court from questioning the adequacy of the President’s declaration. They also prevent persons who are declared ‘prohibited immigrants’ from having a hearing or questioning the ground on which the declaration was made. DITSHWANELO supports this position of the ACHPR on the Immigration Act.

In 2005, DITSHWANELO issued four (4) press statements concerning these provisions in the Good case. On the 1 June 2005 DITSHWANELO called for a review of ‘’the entire process for declaring persons prohibited immigrants”. In a functioning democracy, there needs to be transparency concerning the parameter of what is ‘national interest’. We noted and continue to note that there was and is need for The Immigration Act to be amended. The President’s sole discretion in declaring persons prohibited immigrants and not being required to provide reasons for his decision, undermines the fundamental rules of natural justice and human rights. Anyone accused of an offence has the right to present his or her side of the story (audi alteram partem rule).

On 1 June 2005 “DITSHWANELO also renewed its call for the Government of Botswana to implement its international treaty obligations by domesticating their provisions into domestic law”. The same concern was raised by DITSHWANELO before the United Nations Human Rights Committee in March 2008. In its press statement on 9 October 2009 DITSHWANELO referred to the need for constitutional review.
DITSHWANELO calls on the Attorney General’s Chambers to take careful note of this decision. We encourage The Government of Botswana to take steps to ensure that the laws of Botswana conform to the development of an open and democratic society, guided by minimum human rights standards, as envisioned in Vision 2016.

*This statement has been adopted from DITSWANELO Human Rights Group

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