HIGH COURT CONFIRMS SUPREMACY OF BOTSWANA CONSTITUTION

DITSHWANELO – The Botswana Centre for Human Rights applauds the decision of the High Court, which today confirmed the right of Professor Ken Good to challenge his deportation order on the grounds that it violates his constitutional rights.

On 18 February 2005, Good received a deportation order, based on a decree made by the President of Botswana. He was informed that he had to leave the country within three (3) days of receiving the order. He challenged its validity on the grounds that it violates his constitutionally guaranteed rights to freedoms of conscience and of expression. On 19 February 2005, the High Court granted him an interim stay of the order until 7 March, during which time the State had the opportunity to indicate why the stay should not be made permanent and completely remove the deportation order. On 22 February 2005, the State challenged the manner in which Good had approached the High Court. They also stated that the High Court had no ability to hear such a matter as it is based on a decision made by The President in accordance with specific laws. On 23 February 2005, the matter was postponed to Thursday 24 February 2005, when Good’s attorneys, Dick Bayford, Duma Boko and Joao Salbany, dealt with the objections from the State.

Today, Judge Sappire, ruled that the Applicant (Good) had indeed not followed some of the court rules when he initially took the matter to court. However, this may have been due to the haste with which the matter had to be brought.

He also ruled that in accordance with section 18 of the Constitution, the High Court has the ability to hear the matter. The Judge stated that where there is a conflict between the Constitution and any other law, the Constitution prevails. Where any law invests the President with power, it needs to be exercised subject to the Constitution. The President cannot validly exercise his powers under a law, in this case, the Immigration Act, solely to defeat the provisions of the Constitution. In other words, executive powers cannot be abused to achieve ulterior motives.

Judge Sappire therefore granted an interim order in accordance with which the State may not take further steps to remove Good from Botswana. He also decided that Ken Good shall continue to stay in Botswana on the same terms which existed prior to him being declared a prohibited immigrant. The next part of the case is due to begin one week after the end of the one month notice period given by the Applicant, which began on 21 February 2005. However, the Respondent (State) has the right to waive or forfeit the notice period, which would mean that the case would continue within one week from the date of the waiver.

DITSHWANELO believes that people affected by Presidential decisions, which violate their human rights, should be able to challenge such decisions in a court of law. Today’s decision confirms that the Constitution is the supreme law. It also reaffirms the fact that the judiciary should be an independent arm of government, guided by issues of justice and fairness. We shall continue to monitor this landmark case which questions the limits of Presidential power, the place of the Constitution and the rights of individuals to exercise their fundamental rights within a democracy.

28 February 2005
Gaborone