ACmHPR Communication No. 313/05, Good v Republic of Botswana
Published: 26/May/2010
Source: African Commission on Human and Peoples' Rights
1. The Complaint is submitted by INTERIGHTS, Anton Katz and Max du Plessis (Complainants) on behalf of Mr Kenneth Good (victim), against the Republic of Botswana (Respondent State).
2. The Complaint states that Mr Kenneth Good, an Australian national, teaching at the University of Botswana, had his employment terminated after his expulsion from Botswana on 31 May 2005.
3. It is submitted that in February 2005, in his capacity as Professor of Political Studies at the University of Botswana, the victim co-authored an article concerning presidential succession in Botswana. The article criticized the Government, and concluded that Botswana is a poor example of African Presidential succession.
4. The Complainants submit that, on 18 February 2005, the President of Botswana, exercising the powers vested in him by section 7(f) of the Botswana Immigration Act, decided to declare the victim an undesirable inhabitant of, or visitor to, Botswana. The victim was not given reasons for this decision, nor was he given any opportunity to contest it.
5. On 7 March 2005, the victim launched a constitutional challenge in the Botswana High Court. On 31 May 2005, the High Court dismissed the application ruling that Section 7 (f) of the Botswana Immigration Act relates to what the President considers to be in the best interest of Botswana, and Sections 11(6) and 36 of the same Act make the President’s declaration unassailable on the merits.
6. On 31 May 2005, the victim was deported from Botswana to South Africa.
7. On 7 June 2005, the victim filed a notice and grounds of appeal in the Court of Appeal of the Republic of Botswana. On 27 July 2005, the Court of Appeal delivered a judgment dismissing the victim’s appeal. The Court of Appeal held that the President, in making such declarations, is empowered to act in what he considers to be the best interest of the country, without judicial oversight.
8. The Complainants submit that the Court of Appeal is the highest judicial authority in Botswana. No further right of appeal or challenge lies from the decision of this court.
[…]
ALLEGED VIOLATION OF ARTICLE 12(4)
207. Similarly, in the present case, the deportation of the victim without being provided with a chance to be heard is justifiable neither on the basis of domestic laws nor with the pretext of national security.
208. Based on the above analysis the Commission is of the view that the existence and application of Sections 11(6) and 36 of the Botswana Immigration Act has violated Articles 7(1) and 12(4) of the African Charter.
Read full decision: https://africanlii.org/afu/judgment/african-commission-human-and-peoples-rights/2010/106