The deportation process and the right to be heard in Botswana in the light of Kenneth Good v Botswana

• DOI: 10.10520/EJC177235
• Pages: 33-64
• Author: Jonas Obonye
• Date: 01 January 2013
• Published date: 01 January 2013

The deportation process and the right to be

heard in Botswana in the light of Kenneth

Good v Botswana

Obonye Jonas*

Abstract

The advent of the discourse of human rights has affected

governments’ business in no small manner, albeit for the

good. As democracy, good governance and the rule of law

gain foothold in a state, laws of the state need to be

changed to keep pace with changes in values and polity.

Whereas in Botswana several laws in various spheres have

changed responding to these circumstances, the

Immigration Act remains replete and laden with archaic

provisions that are not congruent with human rights

notions. Of concern to this article are those provisions in

the Act which deny a person affected by deportation the

right to be heard. This article interrogates these laws in the

light of the decision of Kenneth Good v Botswana within

the context of international law and recent decisions of

progressive courts such as those of Canada, the UK, etc.

The article concludes that these provisions have no place in

a democratic set-up such as the one obtaining in Botswana

and ought to be repealed.

Introduction

After centuries of implementation in practice, the audi alteram

partem principle which was finally codified in several international

human rights instruments following World War II, is now

universally recognized. Its incredibly long history and relative

immutability clearly demonstrate its fundamental character and its

status as a rule of customary international law. The implementation

34 The Deportation Process and the Right to be heard in Botswana

of this rule over time and space coupled by the opinion juris of states

qualifies it as a peremptory norm of general international law or jus

cogens. The audi alteram partem principle is the bedrock of all

civilized legal systems and has been consistently applied by courts

uniformly from time immemorial. In tracing its genesis,

development and application, reference must be made to the

decision of the Supreme Court of Swaziland in Swaziland Federation

of Trade Unions v The President of the Industrial Court and another

1

cited with approval by Masuku J in the Botswana case of Malau &

Anor v Debswana Diamond Company &Anor.

2

In the said Swaziland

Federation of Trade Unions case, Browde JA is reported to have said

the following:

The audi alteram partem principle i.e. that the other

party must be heard before an order can be granted

against him, is one of the oldest and most

universally applied principles enshrined in our law.

That no man is to be judged unheard was a precept

known to the Greeks; was inscribed in ancient times

upon images in places where justice was

administered; is enshrined in the Scriptures; was

asserted by an 18th century English Judge to be a

principle of the divine justice and traced to the

events in the Garden of Eden; and has been applied

in cases from 1723 to the present time.

3

In Arbi v Commissioner of Prisons and Another

4

Puckrin JA stated that

the principle of audi alteram partemis part of the bedrock of any

civilised legal system. The maxim expresses a principle of natural

justice, which holds that when a statute or any other form of

legislation empowers public officials to give a decision prejudicially

*LL.B (UB) LL.M (UP), Practising Attorney with Bayford& Associates and Lecturer,

Law Department, University of Botswana. E-mail: jonas15098@yahoo.co.uk.

1

CIV App 11/97.

2

[2004] 2 BLR 497 at p. 500.

3

Ibid. at p. 10

4

[1992] BLR 246 CA at p.251.

LLJ Vol. 20 Nos. 1 & 2 35

affecting an individual in his liberty, property or existing rights,

such an individual has a right to be heard before a decision is taken.

In North West District Council v J & T Decorators &Anor,

5

Dingake

J stated that Courts attach a lot of importance to the need to hear the

other side before a decision is taken, to the extent that where the

legislation is silent on the right to be heard, the court would insist

on this right.

6

In other words, the omission of positive words

legislating this right is no hindrance or bar to the enjoyment of the

right, since the justice of the common law would supply the

omissions of the law making body. Despite the sacrosanctity of the

audi alteram partem rule and its deeply engrained status in Botswana

administrative common law, as shown below, it is inapplicable in

deportation processes under the Botswana immigration law.

2. The relevant provisions of the Immigration Act

The Botswana Immigration Act

7

confers untrammeled powers upon

the President of the Republic to expel from Botswana any person

who, in consequence of information received from any source

deemed by the President to be reliable, is declared by the President

to be an undesirable inhabitant of or visitor to Botswana.

8

No

appeal lies against any notice that a person is a prohibited

immigrant by reason of any declaration by the President and no

court is competent to question the adequacy of the grounds for any

such declaration.

9

In terms of the Act, no person is afforded the

opportunity to be heard before or after a decision to deport him or

her is taken.

10

Further, no person affected by any such decision has

the right to demand any information as to the grounds of such

decision nor shall any such information be disclosed in any court.

11

The net effect of these provisions is to foreclose in an arbitrary and

5

CACLB-018-10.

6

Ibid. at p. 36.

7

CAP 25:02, Laws of Botswana.

8

See section 7(f) thereof.

9

See sections 11(6).

10

See section 36(1).

11

See section 36(1).