Wakilii

Good v Republic of Botswana (Communication 313 of 2005)

African Commission on Human and Peoples' Rights · [2010] ACHPR 106 · 2010 Communication Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights challenging expulsion from Botswana following exhaustion of domestic remedies
Decision
Communication upheld; Botswana ordered to compensate the victim and amend its Immigration Act

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that Botswana violated Articles 1, 2, 7(1)(a), 9, 12(4), and 18 of the African Charter by expelling Professor Kenneth Good without reasons, without judicial review, and on the basis of his critical political opinions. The Commission found that ouster clauses preventing courts from reviewing executive deportation decisions violate the right to fair hearing, that the right to information and freedom of expression are non-derogable, and that national security cannot be invoked to shield state action from judicial scrutiny. The Commission ordered Botswana to compensate the victim and amend its Immigration Act to conform to international human rights standards.

Outcome

Communication upheld; Botswana ordered to compensate the victim and amend its Immigration Act

Facts

Kenneth Good, an Australian national and Professor of Political Studies at the University of Botswana, co-authored an article in February 2005 criticising presidential succession in Botswana. On 18 February 2005, the President declared him an undesirable inhabitant under Section 7(f) of the Immigration Act without giving reasons. Good challenged the decision in the High Court and Court of Appeal, both of which dismissed his applications on the ground that the Act ousted judicial review of the President's decision. On 31 May 2005, Good was deported to South Africa, separating him from his 17-year-old daughter Clara who remained in Botswana to complete her studies. Good had resided lawfully in Botswana for 15 years. After exhausting domestic remedies, the matter was brought before the African Commission.

Issues

  1. Whether the African Commission on Human and Peoples' Rights continues to exist following the dissolution of the Organisation of African Unity and has jurisdiction to hear the communication.
  2. Whether the expulsion of the victim without reasons and without judicial review violates Article 7(1)(a) of the African Charter (right to have one's cause heard).
  3. Whether the expulsion of the victim for expressing critical political opinions violates Article 9 of the African Charter (freedom of expression and right to information).
  4. Whether the expulsion of the victim without due process violates Article 12(4) of the African Charter (right of non-nationals to be expelled only by decision taken in accordance with law).
  5. Whether the expulsion of the victim, separating him from his minor daughter, violates Article 18 of the African Charter (protection of the family).
  6. Whether the expulsion of the victim on the basis of his political opinion constitutes discrimination in violation of Article 2 of the African Charter.
  7. Whether the Respondent State's failure to comply with the African Charter violates Article 1 (obligation to recognise and give effect to Charter rights).

Orders

  • Communication declared admissible.
  • Botswana found to have violated Articles 1, 2, 7(1)(a), 9, 12(4), and 18(1) and (2) of the African Charter.
  • Respondent State to provide adequate compensation to the victim for loss and costs incurred, including remuneration, benefits, and legal costs.
  • Respondent State to 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.

Rules and key headnotes

African Commission on Human and Peoples' Rights — Existence and Jurisdiction
The African Commission on Human and Peoples' Rights continues to exist and operate within the framework of the African Union following the dissolution of the Organisation of African Unity. The termination of the OAU Charter does not affect the existence of the Commission, which was established by the African Charter, not the OAU Charter. The AU Assembly decided that the Commission shall henceforth operate within the framework of the AU, and the AU assumed the same obligations towards the Commission as previously borne by the OAU.
Right to Fair Hearing — Ouster Clauses — Judicial Review of Executive Decisions
An ouster clause that prevents national judicial organs from reviewing executive decisions violates Article 7(1)(a) of the African Charter (right to have one's cause heard). The right to fair hearing requires unfettered access to a tribunal of competent jurisdiction. Where authorities put obstacles that prevent victims from accessing competent tribunals or oust the jurisdiction of judicial organs to hear alleged violations of human rights, they deny victims the right to have their causes heard. The right to fair trial is absolute and cannot be derogated from in any circumstance, including for reasons of national security or public interest.
Freedom of Expression — Political Speech — Academic Freedom
Freedom of expression is a fundamental human right essential to political consciousness and participation in public affairs. A higher degree of tolerance is required for political speech, and an even higher threshold when it is directed towards government and government officials. Public figures must tolerate a greater degree of criticism. Academic critique of government is an inherent aspect of academic freedom and deserves particular protection. The expulsion of a non-national legally resident in a country for expressing critical political opinions in an academic article violates Article 9(2) of the African Charter.
Right to Information — Reasons for Deportation — Non-Derogable Rights
The right to receive information, especially where that information is relevant for the vindication of a right, cannot be withheld for any reason, including national security. The right to be informed of the reasons for actions taken against a person forms part of the right to fair trial and is non-derogable. A law that prevents a person from receiving information as to the grounds for their expulsion and prohibits disclosure of such information in any court violates Article 9(1) of the African Charter.
Expulsion of Non-Nationals — Due Process — Article 12(4) of African Charter
A non-national legally admitted to a State Party may only be expelled by virtue of a decision taken in accordance with law. 'In accordance with law' requires not only conformity with domestic law but also with the principles of the African Charter and international human rights norms. International human rights norms require states to provide non-nationals with the necessary forum to exercise their right to be heard before deporting them. The deportation of an individual without being provided with a chance to be heard is not justifiable on the basis of domestic law or national security.
Protection of the Family — Deportation — Article 18 of African Charter
The State has an obligation to protect the family and to refrain from violating the rights and interests of the family. The sudden deportation of a person with no justification, knowing that they will be separated from their minor child, violates Article 18 of the African Charter. Where a person has legally stayed in a country for 15 years and is given only 56 hours to make arrangements for departure, this is inadequate to make sufficient family arrangements, especially for a female minor with no other relative in the country.
Non-Discrimination — Political Opinion — Article 2 of African Charter
Discrimination on the basis of political opinion is prohibited under Article 2 of the African Charter. Where a person is expelled solely because they expressed a political opinion critical of the government, and would not have been subjected to such treatment had they expressed a supportive opinion, this constitutes discriminatory treatment. Difference in political opinion and the ability to express it openly without fear is a pillar of democracy and should not form the basis for different treatment. National security may justify different treatment only where the State demonstrates how the action constitutes a genuine security threat.

Legislation cited (23)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 7(1)(a)
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 12(4)
  • African Charter on Human and Peoples' Rights Article 18
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 27(2)
  • African Charter on Human and Peoples' Rights Article 45
  • African Charter on Human and Peoples' Rights Article 56
  • Botswana Immigration Act Section 7(f)
  • Botswana Immigration Act Section 11(6)
  • Botswana Immigration Act Section 36
  • Constitution of Botswana Section 3
  • Constitution of Botswana Section 14(1)
  • Constitution of Botswana Section 14(3)
  • Constitutive Act of the African Union Article 5
  • Constitutive Act of the African Union Article 9(1)(d)
  • Constitutive Act of the African Union Article 13
  • Constitutive Act of the African Union Article 33(1)
  • Vienna Convention on the Law of Treaties Article 26
  • Vienna Convention on the Law of Treaties Article 27
  • Vienna Convention on the Law of Treaties Article 31

Cases cited (32)

  • Alfred B. Cudjoe v Ghana (Communication 221 of 1998)
  • Amnesty International and Others v Sudan (Communications 48/90, 50/91, 52/91, 89/93)
  • Constitutional Rights Project v Nigeria (Communication 87 of 1993)
  • John K Modise v Botswana (Communication 97 of 1993)
  • Commission Nationale des Droits de l'Homme et des Libertes v Chad (Communication 74 of 1992)
  • Amnesty International v Zambia (Communication 212 of 1998)
  • Legal Resources Foundation v Zambia (Communication 211 of 1998)
  • Civil Liberties Organization v Nigeria (Communication 129 of 1994)
  • Jawara v The Gambia (Communications 147/97 and 149/96)
  • Civil Liberties Organization v Nigeria (Communication 151 of 1996)
  • Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Republic of Zimbabwe (Communication 284 of 2003)
  • Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development v Republic of Zimbabwe (Communication 294 of 2004)
  • Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v The Sudan (Communications 279/03 and 296/05)
  • Malawi African Association and Others v Mauritania (Communications 54/91, 61/91, 98/93, 164/97, 210/98)
  • Constitutional Rights Project and Other v Nigeria (Communications 140/94, 141/94, 145/95)
  • Zimbabwe Human Rights NGO Forum v Zimbabwe (Communication 245 of 2002)
  • Constitutional Rights Project and Another v Nigeria (Communications 143/95 and 150/96)
  • Organization Mondiale Contre La Torture and Others v Rwanda (Communications 27/89, 46/91, 49/91, 99/93)
  • International PEN and Others v Nigeria (Communications 137/94, 139/94, 154/96, 161/97)
  • Union Inter Africaine des Droits de l'Homme and Others v Angola (Communication 159 of 1996)
  • Recontre Africaine pour la Defense des Droits de l'Homme v Republic of Zambia
  • R (Farrakhan) v Secretary of State for Home Department [2002] 4 All ER 289
  • Secretary of State for Home Department v Rehman [2002] 1 All ER 122
  • A(FC) and Others v Secretary of State [2004] UKHL 56
  • Secretary of State for Home Department v JJ and FC and Others [2007] UKHL 45
  • Charkaoui v Canada [2007] 1 SCR 350
  • Handyside v United Kingdom (5493/72) [1976] ECHR 5
  • Lingens v Austria (9815/82) [1986] ECHR 7
  • Oberschlick v Austria (11662/85) [1991] ECHR 30
  • Marckx v Belgium (6833/74) [1979] ECHR 2
  • Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion Oc-4/84, January 19, 1984, Inter-Am. Ct. H.R. (Ser. A) No. 4 (1984)
  • Sarah Longwe v International Hotels (1993) 4 LRC 221

Full judgment

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Good v Republic of Botswana (Communication 313 of 2005) [2010] ACHPR 106 (26 May 2010)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.