Wakilii

Modise v Botswana (Communication 97 of 1993)

African Commission on Human and Peoples' Rights · [2000] ACHPR 25 · 2000 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 alleging deprivation of citizenship and multiple human rights violations
Decision
Communication upheld with findings of multiple Charter violations and recommendations for recognition of citizenship by descent and adequate compensation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that Mr Modise acquired Botswana citizenship by descent under Section 20(2) of the Constitution at independence, as his father was a British Protected Person who would have become a Botswana citizen but for his death. The Commission found violations of Articles 3(2), 5, 12(1) and (2), 13(1) and (2), 14, and 18(1) of the African Charter arising from repeated deportations, confiscation of property, and denial of full citizenship rights. The Commission urged Botswana to recognise Mr Modise as a citizen by descent and compensate him adequately.

Outcome

Communication upheld with findings of multiple Charter violations and recommendations for recognition of citizenship by descent and adequate compensation

Facts

Mr Modise was born in South Africa in 1943 to parents from the Bechuanaland Protectorate (now Botswana). His father was a migrant worker and British Protected Person. After his mother's death, Mr Modise was brought to Bechuanaland as an infant and grew up there. In 1978, he co-founded an opposition party, the Botswana National Front. Shortly thereafter, he was declared an undesirable immigrant and deported to South Africa four times between 1978 and the early 1980s. South Africa did not accept him as a citizen. He lived for eight years in the South African homeland of Bophuthatswana, which also deported him. He then spent seven years in no-man's land between Bophuthatswana and Botswana before being admitted to Botswana on humanitarian grounds with renewable temporary permits. In 1995, the Government of Botswana granted him citizenship by registration under special circumstances. Mr Modise contended he was entitled to citizenship by descent under Section 20(2) of the Botswana Constitution, which would have made him a citizen at independence in 1966.

Issues

  1. Whether Mr Modise acquired Botswana citizenship by descent under Section 20(2) of the Constitution of Botswana at independence on 30 September 1966.
  2. Whether the repeated deportations of Mr Modise violated his rights under the African Charter on Human and Peoples' Rights.
  3. Whether granting Mr Modise citizenship by registration rather than recognising citizenship by descent violated his rights under the African Charter.
  4. Whether the confiscation of Mr Modise's property violated his right to property under the African Charter.
  5. Whether the denial of eligibility to stand for President violated Mr Modise's right to participate in government under the African Charter.

Orders

  • Communication upheld.
  • Violation of Articles 3(2), 5, 12(1) and (2), 13(1) and (2), 14, and 18(1) of the African Charter declared.
  • Government of Botswana urged to take appropriate measures to recognise Mr John Modise as a citizen of Botswana by descent.
  • Government of Botswana urged to compensate Mr Modise adequately for the violations of his rights.

Rules and key headnotes

Citizenship — Citizenship by Descent — Interpretation of Constitutional Provisions at Independence
Where a person is born outside the former protectorate of a British Protected Person who would have become a citizen at independence but for his death, and that person is not shown to have acquired citizenship of any other country, that person acquires citizenship by descent under the constitutional provision conferring citizenship on children of persons who would have become citizens at independence.
Citizenship — British Nationality Act 1948 — Status of Children of British Protected Persons
Under the British Nationality Act 1948, a person born of a British Protected Person who was born in a British Protectorate is both a British subject and a citizen of the United Kingdom and Colonies by the combined operation of Sections 1, 12(1) and 12(2) of that Act, thereby satisfying the requirements for citizenship by descent under independence constitutions that reference such status.
Right to Equal Protection — Denial of Citizenship Rights
The denial of citizenship by descent to a person entitled to it under the constitution, and the substitution of citizenship by registration with inferior rights, violates the right to equal protection of the law guaranteed under Article 3(2) of the African Charter on Human and Peoples' Rights.
Freedom from Cruel, Inhuman or Degrading Treatment — Repeated Deportations
Repeated deportations of a person to countries that reject him as a citizen, forcing him to live for years in a homeland and then in no-man's land, constitute cruel, inhuman and degrading treatment in violation of Article 5 of the African Charter on Human and Peoples' Rights.
Freedom of Movement — Deportation of Citizens
The deportation of a person who is a citizen by descent greatly jeopardises that person's right to freedom of movement within the state and infringes upon the right to leave and return to one's country, in violation of Articles 12(1) and 12(2) of the African Charter on Human and Peoples' Rights.
Right to Participate in Government — Citizenship by Registration versus Citizenship by Descent
Where a person entitled to citizenship by descent is granted only citizenship by registration, which bars eligibility for the presidency, and this occurs after the person founded an opposition political party, it constitutes a denial of the right to participate freely in government and the right of equal access to public service guaranteed under Articles 13(1) and 13(2) of the African Charter on Human and Peoples' Rights.
Right to Property — Confiscation of Belongings
The confiscation of a person's belongings and property by the state without justification violates the right to property guaranteed under Article 14 of the African Charter on Human and Peoples' Rights.

Legislation cited (18)

  • African Charter on Human and Peoples' Rights Article 3(2)
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 7(1)(a)
  • African Charter on Human and Peoples' Rights Article 12(1)
  • African Charter on Human and Peoples' Rights Article 12(2)
  • African Charter on Human and Peoples' Rights Article 13(1)
  • African Charter on Human and Peoples' Rights Article 13(2)
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 16(1)
  • African Charter on Human and Peoples' Rights Article 16(2)
  • African Charter on Human and Peoples' Rights Article 18(1)
  • Constitution of Botswana Section 20(1)
  • Constitution of Botswana Section 20(2)
  • Constitution of Botswana Section 23(1)
  • Citizenship Act of Botswana Section 9(2)
  • British Nationality Act 1948 Section 1
  • British Nationality Act 1948 Section 12(1)
  • British Nationality Act 1948 Section 12(2)

Cases cited (1)

  • John K. Modise v The State (High Court of Botswana, 20 September 1979)

Full judgment

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Modise v Botswana (Communication 97 of 1993) [2000] ACHPR 25 (6 November 2000)
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.