US embassy cable - 05GABORONE738

UNCLAS SECTION 01 OF 02 GABORONE 000738 
 
SIPDIS 
 
SENSITIVE 
 
AF/S FOR HOFSTATTER 
 
E.O. 12958: N/A 
TAGS: PHUM, ELAB, PGOV, BC, Human Rights 
SUBJECT: COURT OK'S DEPORTATION OF CRITICAL ACADEMIC 
 
REF GABORONE 293 
 
1. (SBU)  SUMMARY:  Botswana's High Court has upheld the 
constitutionality of a Presidential decree declaring 
critical academic Professor Kenneth Good a prohibited 
immigrant subject to deportation.  Attorneys for the 70-year- 
old gadfly had argued that Good's deportation would violate 
his right to free expression.  Following the ruling against 
them, Good's lawyers pleaded for a further stay of execution 
to allow him to appeal the decision while still in the 
country.  The Court denied this request.  The judgment in 
this case explicitly reinforces the power of the executive 
in Botswana and legitimizes the limits to the Government's 
accountability to its citizens.  END SUMMARY 
 
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DEPORTATION OF CRITIC CONSTITUTIONAL 
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2. (U)  On May 31, High Court Judge Stanley Sapire delivered 
a judgment in the legal challenge filed by University of 
Botswana Professor Kenneth Good against a deportation order 
issued by the GOB after President Mogae declared Good a 
prohibited immigrant (reftel).  Good's attorneys argued that 
this declaration was prompted by his criticism of the 
Government and, as such, his deportation would violate his 
right to free expression.  In an affidavit, President Mogae 
stated that he had received reliable information that the 
aging academic was a threat to national security and under 
section 13.6 of the Constitution and section 36.1 of the 
Immigration Act, declared Professor Good a prohibited 
immigrant. 
 
3. (U)  In its ruling, the High Court upheld as 
constitutional a law which exempts the President from 
disclosing the reasons for proclaiming one a prohibited 
immigrant, the information that led to such a conclusion, or 
the source of that information.  The responsibility of the 
President to act in the public interest as he defines it, 
Judge Sapire continued, takes precedent over individual 
rights.  Consequently, the deportation of Professor Good for 
undisclosed reasons would not be unconstitutional.  Judge 
Sapire also noted that Mogae did not violate international 
treaties such as Article 13 of the International Covenant on 
Political and Civil Rights that obligated governments to 
give a person a hearing before declaring them a prohibited 
immigrant.  The Court's judgment recognized that Botswana 
had signed certain international conventions that would bar 
deportation in such a circumstance but held that until the 
provisions of these agreements are incorporated into 
domestic law, they are not binding. 
 
4. (U)  Immediately following the reading of this judgment, 
Good's attorneys requested a second stay of execution to 
allow their client the chance to file a notice of appeal 
before being removed from the country.  Allowing his 
expulsion while an appeal is pending, they argued, would 
preempt the judicial process.  Judge Sapire replied that 
Good could pursue an appeal from outside Botswana and that 
the Court lacked the authority to issue such an interdict. 
Good could appeal, he concluded, but the Court would not 
prevent the execution of the deportation order against him. 
 
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GOOD TAKEN INTO CUSTODY AMIDST CONFUSION 
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5. (U)  The reading of the judgment and plea for a stay of 
execution unfolded over a three-hour period, during which 
time the judge took two short recesses.  Throughout the 
proceedings, approximately half a dozen plain clothes law 
enforcement officials sat along the wall beside and behind 
Good and his attorneys.  After the reading of the judgment, 
two security officials followed Good everywhere he went 
including to the restroom and into a chamber where he 
consulted with his attorneys.  Only after Good's lead 
attorney asked the Attorney General, who appeared on behalf 
of the Government, to allow him to converse with his client 
privately did the officials withdraw from that chamber. 
 
6. (U)  After Judge Sapire denied the request for a stay of 
execution, immigration officials began to escort Good to a 
government vehicle.  A representative of the Australian High 
Commission in Pretoria intervened seeking consular access. 
Although the GOB officials talked with the Australian 
diplomat for approximately fifteen minutes in the presence 
of Good and his attorneys, they refused to say where they 
were taking Good.  They then shuffled Good into a car and 
drove away.  Several hours later, the Ministry of Foreign 
Affairs and International Cooperation contacted the diplomat 
and allowed him to meet with Good.  At 7:00 p.m. that night, 
Good was put on a flight to Johannesburg.  The Australian 
official escorted him to South Africa. 
 
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COMMENT 
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7. (SBU)  The fact that the High Court stayed the execution 
of the Government's deportation order on February 19, heard 
Good's allegations in an open court, and rendered a decision 
apparently without interference from the Government 
testifies to the independence of the judiciary in Botswana. 
However, by accepting the constitutionality of the 
President's ability to deport an immigrant without providing 
justification to the judiciary or to the public, the Court 
reinforced the imbalance of powers favoring the executive 
and legitimized a lack of accountability of elected 
officials to their constituents.  Through its advocacy and 
public outreach, Mission will continue to stress the 
importance of transparency and checks on the power of the 
executive in a vibrant and stable democracy. 
 
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SUGGESTED PRESS GUIDANCE 
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8. (U)  Post submits the following as suggested press 
guidance:  Regarding the deportation from Botswana of 
Professor Kenneth Good, the United States notes that the 
judicial process has run its course and that the High Court 
of Botswana has upheld the constitutionality of the 
Government of Botswana's declaration of Professor Good to be 
a prohibited immigrant.  The United States notes that 
Professor Good has lived in Botswana and worked at the 
University of Botswana for the last fifteen years.  During 
that time he spoke out against corruption and in favor of 
accountability in government.  The United States believes 
that the Government of Botswana shares these values and will 
continue to respect the freedom of expression that is 
necessary for a vibrant and stable democracy. 
 
HUGGINS