Botswana: Country Reprimanded for Denying Critic Access to Court
12th August 2010
By Business Day (Franny Rabkin) 

Johannesburg — IN A scathing rebuke of Botswana's immigration laws, 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 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, including SA. 

The commission's decision was released recently after a five-year legal battle by Australian academic Kenneth Good, who was declared "a prohibited immigrant" in terms of the Botswana Immigration Act and deported after he co-authored an article critical of the president. 

The act permits the president of Botswana to expel a noncitizen "in consequence of information received from any source deemed by the president to be reliable" - with no right to challenge the decision in court and no duty on the president to give reasons for his decision.

 Mr Good first tried to find out why he was deported through the Botswana courts, to no avail. He ultimately turned to the commission - assisted by international nongovernmental organisation Interights and two South African counsel, Anton Katz SC and Max du Plessis.

He said the act violated a number of his rights under the African Charter on Human and Peoples' Rights, including the right "to have his cause heard". 

Botswana argued that the act's ousting of the courts' jurisdiction to review the president's decision was justified in the public interest. But the commission rejected this outright. "Can a victim's right to have his cause heard be limited ... for the public interest? The answer to this is no." 

The commission also found that denying Mr Good reasons for his deportation infringed on his right to receive information. 

National security and the public interest were "recognised as justifiable grounds to limit freedom of expression" under the charter, the commission said. 

However, in Mr Good's case, and "especially in a trial for the vindication of a right", information could not be withheld for any reason.

Botswana's Daily News quoted Foreign Affairs Minister Phandu Skelemani, as saying: "We are not going to follow on the recommendation made by the commission; it does not give orders, and it is not a court.

 We are not going to listen to them." 

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