Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The African Commission on Human and People’s Rights (ACmHPR) ruled that deportation of an Australian national without giving any reasons and following the expression of unpopular political views was a violation of the rights to freedom of expression and information; the right to a fair trial; and the state’s obligation to assist the family. Both the Botswana High Court and the Court of Appeal ruled that the deportation was permissible on the grounds that the President was entitled to take decisions which he believed were in the interest of the country and that those decisions were not subject to judicial scrutiny. The Commission reasoned that the African Charter on Human and People’s Rights (ACHPR) applied in Botswana regardless of whether it had been incorporated into domestic law and that, given the absence of any justification for why the article was deemed to threaten national security, the action of the President in deporting Good was “unnecessary, disproportionate and incompatible with the practices of democratic societies, international human rights norms and the African Charter in particular”.
In February 2005, Kenneth Good, an Australian teaching at the University of Botswana, co-authored a newspaper article which criticised the nature of political succession in Botswana (paras. 2-3). Later that month the President of Botswana declared Good an “undesirable inhabitant of, or visitor to, Botswana” (para. 4) under section 7(f) of the Botswana Immigration Act. Good was given no reasons for this decision and there was no process by which he was able to challenge the decision administratively (para. 4). Good approached the High Court, which ruled that the President’s exercise of his powers under section 7(f) was not reviewable (para. 5). On the day the High Court issued its judgment Good was deported from Botswana (para. 6). Good then appealed to the Court of Appeal which also dismissed his argument, holding that “the president, in making such declarations, is empowered to act in what he considers to be the best interest of the country, without judicial oversight” (para. 7). Good subsequently approached the African ACmHPR, seeking a declaration that section 7(f) and the provisions which allowed the President to refuse to give reasons for a deportation were inconsistent with the ACHPR.
The issue before the African Commission was whether the legislation allowing the President to deport an individual without giving reasons and the deportation of Good were inconsistent with the ACHPR.
Good argued that the President’s decision had violated his rights under the ACHPR, including under Article 9, which states that “(1) Every individual shall have the right to receive information and (2) Every individual shall have the right to express and disseminate his opinions within the law”. Good submitted that both his rights to information and freedom of expression had been violated (para. 186) as the inability to get reasons for the decision infringed his right to information and that the deportation infringed his right to freedom of expression. Good argued that his article constituted “opinions expressed in the course of his functions as Professor of Political Science at the University of Botswana” (para. 123). He said that critique of government “was an inherent aspect of the exercise of [his] functions as an academic in the field, who was not only entitled but effectively compelled by his discipline to be prepared, where appropriate, to write critically about government issues” (para. 123) and that it amounted to political speech which was deserving of protection (para. 123).
Good submitted that the only reason apparently given by the President for his deportation was that it was necessary for national security. He said that the article did not threaten national security, and said that the measures taken by the President “were clearly aimed at preventing [him] or others like him, from expressing critical political views and/or were punitive in nature and that his expulsion did not pursue any legitimate aim” (para. 124). Good accepted that had the President provided some evidence of the threat the article posed to national security it was possible that the deportation would have been a permissible limitation of his right to freedom of expression. In the absence of such evidence and reasons for the decision, Good argued that the President’s actions could be neither necessary nor proportionate (para. 126).
In its submissions Botswana focused on procedural arguments and the fact that a President is entitled to act to protect the security of the country (para. 147).
The Commission assessed Good’s submission that the President’s decision had infringed his rights to information and to freedom of expression. It recognized that the rights are not absolute and can be limited “to protect the rights or reputation of others, for national security, public order, health or morals” (para. 188). Referring to the Declaration of Principles on Freedom of Expression in Africa, the Commission confirmed that restrictions on the exercise of rights are only permissible when they are “provided by law, serve a legitimate interest and [are] necessary in a democratic society” (para. 188). The Commission read Article 9 as including a permissible limitation for “legitimate and justifiable individual, collective and national interests” and quoted the African Commission case of Malawi African Association v. Mauritania Comm No. 54/91 (2000) which had held that “the expression ‘within the law’ must be interpreted in reference to international norms’ which, among others, can provide grounds of limitation on freedom of expression” (para. 189). The Commission referred to Article 27(2) of the ACHPR which provides that the rights contained in the Charter “shall be exercised with due regard to the rights of others, collective security, morality and common interest” and said that it is clear therefore that the right to freedom of expression can be limited in order to protect national security (para. 190).
In respect of the question of whether the refusal to provide Good with reasons for the President’s decision infringed Good’s right to information, the Commission held that “right to receive information, especially where that information is relevant in a trial for the vindication of a right, cannot be withheld for any reason” (para. 194). It added that “[i]t makes a mockery of justice and the rule of law for a person legally admitted to a country to all of a sudden be told to leave against his will and he/she is not given reasons for the expulsion” (para. 194). The Commission also said that the “right to be informed of the reasons of the actions taken against anyone is recognised universally” and that it forms part of the right to a fair trial (para. 195). The Commission referred to its decision in Amnesty International v. Zambia (2000) AHRLR 325 (ACHRPR 1999) in which it had held that the refusal to provide reasons to individuals deported in Zambia was a violation of their right to receive information under Article 9(1) (para. 195).
Accordingly, the Commission ruled the provision in the Immigration Act that permitted the state to refuse to provide reasons for a deportation inconsistent with Article 9 of the ACHPR, and that the refusal to provide Good with the reasons for his deportation was a violation of his rights (para. 196).
In respect of the question whether the deportation violated Good’s right to freedom of expression the Commission again referred to its decision in Amnesty International v. Zambia. In that case the Commission had stated that freedom of expression is a fundamental human right, “essential to an individual’s personal development, political consciousness and participation in the public affairs of a country” (para. 198). The Commission also quoted with approval from the European Court of Human Rights case of Handyside v. United Kingdom App No 5493/72 (1976) (para. 198). The Commission further confirmed that a “higher degree of tolerance is expected when it is a political speech and an even higher threshold is required when it is directed towards the government and government officials” (para. 199), and referred to the Declaration on Principles of Freedom of Expression in Africa which states that “public figures shall be required to tolerate a greater degree of criticism” (para. 199).
The Commission concluded that the article did not threaten national security and was not “defamatory, disparaging or inflammatory” (para. 200). It continued and said that the “opinions and views expressed in the article are just critical comments that are expected from an academician of the field; but even if the government, for one reason or another, considers the comments to be offensive, they are the type that can and should be tolerated” (para. 200). It stated that “[i]n an open and democratic society like Botswana, dissenting views must be allowed to flourish, even if they emanate from non-nationals” (para. 200).
Accordingly, the Commission held that given the absence of any justification for why the article was deemed to threaten national security the action of the President in deporting Good was “unnecessary, disproportionate and incompatible with the practices of democratic societies, international human rights norms and the African Charter in particular” (para. 201). The Commission recommended that Botswana provide Good with adequate compensation and take steps to bring the Immigration Act into line with international human rights standards, specifically the ACHPR (para. 245).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by affirming that the failure by a state to incorporate into domestic law international obligations contained in a treaty which it has ratified does not relieve it of those obligations and holding that the deportation by Botswana of a foreign national without giving reasons and following his political expression violated its obligations under the ACHPR.
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