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By Nicole Fritz and Lloyd Kuveya

Outside the international lawyer’s world, the European Court on Human Rights and Fundamental Freedoms generates little scintillating debate.

And yet it is an institution deserving considerable interest: not only the most effective system of human rights protection throughout the world, it is also one of the most effective regimes of international law enforcement, rivaling even the spheres of international trade and investment. For the first decades of its existence the European system was relatively moribund. The few judgments the court issued were ignored. It took a few states, recognising the importance of this system before it finally became effective.

The leading role played by a few states in realising an effective European system makes the statements issued by Botswana government in response to the recent African Commission on Human and Peoples’ Rights ruling particularly disquieting. The ruling concerns the case of Kenneth Good, an academic deported from Botswana in 2005 for having written critically of Botswana’s political system.

Like those European states which created the European system, African states established the African Commission, and more recently the African Court on Human and Peoples’ Rights. But like the European system at its beginning, the African system has most often been breached.

What makes the Botswana position so disappointing is that if any state might have been expected to play a critical leadership role within the African system, it is Botswana. Botswana was ranked by the Mo Ibrahim Foundation as the 4th best governed nation in sub-Saharan Africa and ex-President, Festus Mogae, won the 2008 Ibrahim Prize for Achievement in African leadership. More notably, Botswana is said within diplomatic circles to have been vocal in its criticism of Zimbabwe for thumbing its nose at SADC Tribunal and at the recent AU Summit, was said to have urged fellow member states to respect their obligations to the ICC. And so it seems strange that while in so many other areas Botswana looks intent on treating seriously its commitment to the principles of democracy, good governance, human rights and the rule of law, when it comes to the African Commission, Botswana seems prepared to flout the rule of law. This uncharacteristic disregard of decisions taken by the regional human rights protection body started in 2000 when a ruling in a citizenship and immigration case was defied by the Botswana government.

In the case of Professor Good, Botswana has been ordered by the Commission to pay him compensation for the loss incurred as a result of the unfair termination of his employment and his unlawful expulsion, found to have violated, among others, his rights to non-discrimination, information and expression. No reasons were given for his deportation save that he constituted a threat to national security. Good’s constitutional challenges to Botswana’s immigration laws were dismissed by the Court of Appeal.

On the issue of freedom of expression, the Commission observed that in a democratic society like Botswana, dissenting views must be allowed to flourish even if authored by non-nationals. Sadly, the only view now being heard from Botswana is that of the Foreign Minister, on record as having said: “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. We will not compensate Mr. Good.

“For its own record Botswana cannot afford not to comply with the African Commission’s ruling.

Nicole Fritz is the director and Lloyd Kuveya a project lawyer with the Southern Africa Litigation Centre.



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