HEARINGS BEGIN ON BOTSWANA'S DEPORTATION OF

UNCLAS GABORONE 000266

SIPDIS


SENSITIVE BUT UNCLASSIFIED

AF/S FOR DIFFILY

E.O. 12958: N/A
TAGS: PHUM PGOV BC
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
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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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