DITSHWANELO PRESS STATEMENT ON DEPORTATION OF KEN GOOD

PARAMETERS OF STATE POWER REMAIN UNCLEAR FOLLOWING THE DEPORTATION OF KEN GOOD

DITSHWANELO - The Botswana Centre for Human Rights wishes to strongly condemn the recent action of the Government of Botswana, which resulted in the deportation of Australian Professor Ken Good on 31 May 2005.

On 28 February 2005, the High Court granted an interim order preventing the State from taking further steps to remove Good from Botswana after he had been declared a prohibited immigrant on 18 February 2005. The interim order was issued to allow the Court time to consider claims that the deportation order violated Good's constitutional rights.

Yesterday, the High Court ruled that Ken Good's claims were without merit. Good, who was represented by attorneys Dick Bayford, Joao Salbany, and Duma Boko and by Advocate Anton Katz,, had claimed that the President had 'not properly applied his mind in terms of the law' regarding the distinction between visitors and inhabitants of Botswana. Had this been true, President Mogae's actions would have been unlawful. Good had also claimed that sections 11(6) and 36 of the Immigration Act-provisions prohibiting any court from questioning the adequacy of the President's declaration and preventing persons declared prohibited immigrants from having a hearing or questioning on which grounds that declaration was made-were in conflict with section 3(a) of the Constitution, which provides protection of the law to every person in Botswana. Judge Sapire delivered the judgment for the unanimous three-judge panel, which also included Judges Mosojane and Gaongalelwe. Judge Sapire noted that Good did not challenge President Mogae's statement that the move against him was based on information from a source the President deemed reliable, even though Good's legal team had raised the issue as a matter in their original papers before the Court. Without this challenge, the Court had to accept the President's statement and rule accordingly. Judge Sapire pointed out that the law allowed for the President alone, to "deem" someone a prohibited immigrant. Moreover, the Court found that while the Constitution provides legal protections to all persons, even non-citizens, fundamental rights are not absolute and are subordinate to the "public interest."

Following the judgment, Judge Sapire declined an application by Good's lawyer asking for a continued stay of the deportation order while he filed an appeal. The Judge stated that there was nothing preventing Good from pursuing the appeal from outside the country. Immediately following the hearing, police escorted Ken Good from the Court. He was placed on a plane last night and flown to South Africa.

It is unfortunate that the issue of the reliability of the source upon which the President relied in declaring Good a prohibited immigrant could not be challenged. This because the legal team of Good believed that the laws of Botswana made it impossible for the Court to consider the issue. Consequently the parameters of state power, and the court's ability to interpret them, remain unclear.

DITSHWANELO calls for a review of the entire process for declaring persons prohibited immigrants. At present, the President's sole discretion in making such a declaration and his not being required to provide any reasons for his determination undermines the fundamental rules of natural justice and human rights. Anyone accused of an offence has the right to present his or her side of the story (audi alterem partem rule).

DITSHWANELO also renews its call for the Government of Botswana to implement its international treaty obligations by domesticating their provisions into domestic law. Botswana is a party to the International Covenant on Civil and Political Rights (ICCPR), which requires a hearing before a person is declared a prohibited immigrant. Because the Government has yet to create domestic laws which are in line with the ICCPR provisions, something it is required to do after committing itself to the covenant, the Court was not obliged to give the ICCPR provisions any significant weight.

As a political science lecturer at the University of Botswana, Ken Good regularly commented on the state of human rights and the need for responsible citizenship in Botswana. While no official reasons have been provided concerning his deportation, it would be reasonable to assume that his critical comments have contributed to the Government viewing him as one whom they do not wish to have present in the country. The Government has said only that Ken Good's deportation was in the "national interest."

In a functioning democracy, there needs to be transparency concerning the parameters of what falls within the public domain. Some of these are clearly articulated in Botswana's Vision 2016, such as transparency and accountability. The curtailing of the fundamental freedoms of expression and information often occurs and is then justified by those in authority, as being in the 'national interest', without further explanation provided. In an open and democratic society, limits on State power need to be clear and known by the people, to ensure the protection of the human rights of all.

1 June 2005
Gaborone