Prof Good wins payout against Botswana at AU court

MONKAGEDI GAOTLHOBOGWE
Staff Writer | Tuesday June 22, 2010 00:00

 

The tussle between Botswana government and its nemesis, deported political scientist and government critic Professor Kenneth Good, took another turn this week. Good successfully sued the government and won undisclosed payouts at the African Union's human rights commission in Banjul, The Gambia.

The mode of payment of the compensation will be made in accordance with the pertinent laws of Botswana. In its favourable ruling for the prohibited immigrant, the court also said Botswana should review its immigration laws. Good, a former political science lecturer at the University of Botswana (UB) was declared a prohibited immigrant in 2005, after authoring an academic paper criticising Botswana's system of 'automatic succession' to the presidency, which he described as 'a poor example in Africa'.  He twice challenged his deportation in the Botswana courts and lost on both occasions. His case has been before the AU's Human Rights Commission since 2005. The May ruling poses a challenge to Botswana's constitutional provision that empowers the President to declare a person a prohibited immigrant without giving reasons. 

The Commission recommends to Botswana to take steps to ensure that Sections 7(f), 11(6) and 36 of the Botswana Immigration Act and its application conform to international human rights standards, especially the African Charter.The 47th Ordinary Session of the African Commission on Human and Peoples' Rights found the Botswana Government guilty of violating Articles 1, 2, 7(1)(a), 9, 12(4) and 18(1) and 18(2) of the African Charter.

Botswana government guilty of violating Articles 1, 2, 7(1)(a), 9, 12(4) and 18(1) and 18(2) of the African Charter. 'The compensation should include but not be limited to remuneration and benefits he lost as a result of his expulsion, and legal costs he incurred during litigation in domestic courts and before the African Commission,' the ruling reads in part.

The Commission's ruling is categorical that if a state party fails to recognise the provisions of the African Charter, it is in violation of Article 1 of the guiding document.

'Article 1 of the African Charter thus imposes a general obligation on all States Parties to recognise the rights enshrined therein and requires them to adopt measures to give effect to those rights. As such, any finding of violation of those rights constitutes violation of Article 1'.

 But the Commission says it has no power to rule on the constitutionality of the laws, executive actions or judicial decisions of state parties and so it cannot pronounce on these regarding Botswana's Immigration Act.

The Commission was established, it says, to make sure that the acts of the executive, legislative and judicial branches of states parties are compatible with the provisions of the charter.

Therefore, 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, it points out.The AU's human rights court found that it is a well-established principle in international law that a state cannot invoke its domestic laws to avoid its international obligations.

'In Legal Resource Foundation v Zambia, the Commission reiterated this point when it held that 'international treaties which are not part of domestic law and which may not be directly enforceable in the national courts nonetheless impose obligations on State Parties,'' the judgment says. Meanwhile, Botswana's representatives to the AU suggest that the government was not aware of the existence of the AU Human Rights Court, also known as the AU Commission.

It has emerged that the government of Botswana took the attitude that the commission ceased to exist when the Organisation of African Unity (OAU) ceased to exist in 2001.  Botswana argued that the African Commission is not mentioned among the AU organs, and that the organisation did not make use of the capacity vested in it to establish any other organ to bring the Commission back to existence.

Botswana did not, however, challenge the existence of the African Charter, dismissing it as 'just an instrument of noble ideas which, unfortunately, is devoid of any operational structures'.

With respect to the Commission's competence, Botswana held that immigration matters are not part of the mandate of the Commission, arguing that only the Executive Council of the AU is responsible for immigration matters.

The Commission informed Botswana that indeed it exists. It is the Commission's view that having been established by the African Charter, the termination of a treaty other than the Charter cannot affect its existence,' it said.

'The Commission would like to emphasise that although it was established by the African Charter and not a direct emanation of the OAU Charter, it was operating within the framework of the OAU. Botswana's Minister for Justice and Security, Ramadeluka Seretse yesterday refused to  comment  on the ruling  saying he received an email message yesterday informing him that the Commission's ruling should remain confidential until it has been presented to the 15th summit of the AU which meets next month from the 19-27.

' I understand the Commission will have its  report published  after it has been presented to the Summit, so I won't comment, especially after seeing something briefly this morning to the effect that  the report remains confidential until it has been considered by the Summit'.

' Maybe the other party is free to publicise it, I don't know what was written to them, but we won't comment for now', Seretse said.

The Attorney General Athaliah Molokomme said she was on leave yesterday but said she understands the report is not supposed to be out yet.