US embassy cable - 05GABORONE266

UNCLAS  GABORONE 000266 
 
SIPDIS 
 
 
SENSITIVE BUT UNCLASSIFIED 
 
AF/S FOR DIFFILY 
 
E.O. 12958: N/A 
TAGS: PHUM, PGOV, BC, Human Rights 
SUBJECT: HEARINGS BEGIN ON BOTSWANA'S DEPORTATION OF 
CRITICAL ACADEMIC 
 
REF (A) Gaborone 257 REF (B) 04 Gaborone 1950 REF (C) 
 
Gaborone 56 
 
1. (U)  Summary:  Preliminary arguments in the case of 
Kenneth Good v. the Attorney General commenced before a 
packed chamber at the High Court on February 22.  Debate 
centered on whether the court has the right to issue an 
interdict against a state order as it did on February 19 to 
forestall Good's deportation.  Judge Sappire indicated that 
the law may well limit the court's power in this regard, but 
stated that if so, the constitutionality of such a law is 
open to question. Further hearings are postponed until 
February 24 so the applicants can prepare their arguments 
against state counsel. This case fuels ongoing discussion of 
the (im)balance of powers and its impact on democracy in 
Botswana.  Post will attend Prof. Good's seminar at the 
University of Botswana afternoon of February 23. British and 
Australian High Commissioners are preparing to demarche the 
GOB February 25 or March 1, as Good is apparently a dual 
citizen.  End Summary. 
 
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PRELIMINARY ARGUMENTS TOUCH ON BALANCE OF POWERS 
--------------------------------------------- --- 
 
2. (U)  Hearings in the urgent application for relief filed 
by the attorneys representing Professor Kenneth Good began 
at the High Court on February 22 (Ref A).  Representatives 
of the Attorney General urged the judge to dismiss the case, 
arguing that the court acted outside its authority by 
issuing an interdict on February 19.  When asked by the 
judge how else the status quo could be maintained until the 
case is heard and decided, the Attorney General denied that 
the status quo should be maintained.  Professor Good should 
leave the country and pursue legal action through his 
attorneys from abroad, they argued.  Although Judge Sappire 
confessed not to be "impressed" with this reasoning, he 
conceded that the law cited by the respondent might indeed 
prevent the court from issuing an interdict against an order 
by the state. 
 
3. (U)  The counsel for Prof. Good argued that the court 
does have the right to stay the execution of a state order 
when an applicant urgently seeks temporary relief for 
purposes of challenging that order in court.  If that were 
not so, the attorneys argued, the law effectively would deny 
the applicant access to justice.  The judge noted that were 
Prof. Good forced to leave the country and pursue his case 
from abroad and won the case, irreparable damage would have 
occurred in the interim in the form of the loss of his job, 
home, etc.  He reserved judgment on whether or not the court 
has the power to issue an interdict in such a situation but 
stated that even if the law prohibits such an action by the 
court, the applicants could challenge the constitutionality 
of that law. 
 
4.  (U)  The court adjourned until 0830 on February 23, when 
the parties would continue their preliminary arguments.  By 
0900, counsel for the applicant had been successful in 
obtaining a day's worth of adjournment, arguing that the 
state had not notified them of its intended arguments in 
advance, and asked for a postponement to prepare.  The judge 
consented, and further hearings were adjourned until 0830 
February 24.  This would allow Prof. Good to deliver his 
seminar paper thought to have helped provoke the order (ref 
A). 
 
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CASE DRAWS LARGE, SUPPORTIVE CROWD 
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5. (U)  The hearing on February 22 attracted such a large 
crowd that the court had to relocate the proceedings to a 
larger venue to accommodate the onlookers.  Two buses full 
of students and faculty from the University of Botswana 
traveled from Gaborone to Lobatse (about one hour's drive) 
to witness the case after presenting the acting Vice 
Chancellor of the University with a letter protesting the 
deportation order.  Politicians from the three largest 
parties - the ruling Botswana Democratic Party and the 
opposition Botswana National Front and Botswana Congress 
Party - attended, as well as representatives of the Botswana 
Center for Human Rights.  Prof. Good entered the courtroom 
to the applause of an overwhelmingly supportive audience. 
 
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COMMENT 
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6. (SBU)  By ordering the deportation of Prof. Good, the GOB 
has drawn far more attention to his criticisms of it than 
Good could ever have expected to attract had he continued 
presenting his arguments in relatively limited academic 
fora.  Indeed, taking this step supports Good's contention 
that beneath the veneer of a democratic state, the GOB is 
authoritarian and intolerant of dissent.  Considering the 
GOB's track-record of (mis)handling the Central Kalahari 
Game Reserve relocation issue, the Government is unlikely to 
back down or change course. 
 
7. (SBU)  The procedural and substantive aspects of this 
case concern an issue already at the forefront of public 
discourse in Botswana today - that of the broad powers of 
the executive, relative to the other branches of government. 
Last week, opposition MP Dumelang Saleshando reintroduced in 
parliament a motion calling for the national assembly to 
debate the Government's decision to locate a second 
university in Serowe-Palapye contrary to the recommendation 
of an advisory committee (Ref B).  The original motion was 
shot down on the assertion that parliament has no right to 
revisit a decision of the government.  A business source 
told us February 22 that government circles discussed the 
issue of deporting Prof. Good early the week of February 14. 
Kenneth Good v. the Attorney General brings into question 
the balance of power between the judiciary and the state and 
the extent to which the state can use its powers to curtail 
freedom of expression.  Prof. Good's presentation of his 
paper to the U/Botswana seminar series afternoon of February 
23, which post will attend, will further test the limits of 
freedom of expression. 
 
8. (SBU)  This episode also does not bode well for VP 
Khama's image.  Given the reservations of many about his 
human rights views (Ref C), public opinion is already 
blaming the deportation order on him as much as on President 
Mogae although only the President can officially declare 
someone a prohibited immigrant. 
AROIAN 
 
 
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