GOB WILL NOT INTERVENE IN IMPENDING SEIZURE OF

C O N F I D E N T I A L SECTION 01 OF 02 GABORONE 000583

SIPDIS

STATE FOR AF/S, AF/EX, L, DS
JUSTICE FOR JONATHAN WELCH

E.O. 12958: DECL: 07/24/2019
TAGS: PREL KLIG ABLD AMGT ASEC BC
SUBJECT: GOB WILL NOT INTERVENE IN IMPENDING SEIZURE OF
USG-OWNED HOUSE

REF: A. EMAILS BETWEEN POST AND HOLLIN DICKERSON AND
JONATHAN WELCH JULY 21-24 2009

B. GABORONE 569

C. GABORONE 554

Classified By: Ambassador Stephen J. Nolan for reasons 1.4 (b) and (d)

(C) SUMMARY. After prior assurances from the Ministry of
Foreign Affairs (MFA) that the scheduled sale of a USG
diplomatic residence was in violation of the Vienna
Convention and would not proceed, Embassy Gaborone received
late on July 23 a diplomatic note stating that the MFA did
not have standing to intervene on behalf of the USG in a
lawsuit brought by a former landlord and stating that the USG
should urgently retain a lawyer to stop the proceedings. In
response, Ambassador Nolan spoke to the Foreign Minister to
raise the serious concerns of the USG and to further request
MFA assistance. As a result of that conversation, on the
morning of July 24 the Ambassador met with several high level
officials, including the Foreign Minister and the Attorney
General (AG) to continue to voice USG concerns. The position
of the AG is that the Government of Botswana (GOB) has no
standing to argue in court on behalf of the UGS, but the GOB
is willing to file an amicus curiae brief (a friend of the
court brief) to lay out additional issues, including Vienna
Convention considerations, for the High Court to consider.
The AG sounded uncertain that the High Court would find that
the Vienna Convention protects the USG residence currently
scheduled for auction, and added that if the sale were to go
forward the Ambassador would be likely found in contempt of
court if he did not allow access to the premises. See action
request in Paragraph 7. END SUMMARY.

2. (C) In response to a Diplomatic Note received late on
July 23, Ambassador Nolan called the Minister of Foreign
Affairs and International Cooperation Phandu Skelemani to
express his serious concerns about the way this matter is
progressing. On July 16 the Ambassador met with the Foreign
Minister to discuss the Karen Hendry lawsuit (see reftels)
and received assurances that the scheduled sale of a USG
diplomatic residence would not proceed. However, very late
in the afternoon on July 23, the Embassy received a
diplomatic note, which stated in relevant part, &Regarding
the Writ of Execution against Immovable Property Lot 3069,
the (USG) will have to engage a Private Attorney to approach
the High Court and seek and order for recession of the
judgment or appeal against the order. Given that the sale in
execution is scheduled for 30th July 2009, it would be
appropriate that an application be made on an urgent basis.8
The Ambassador told to the Foreign Minister that this is a
serious negative step backwards and that the USG would view a
seizure of any USG residence as a violation of the Vienna
Convention. He said that USG owned property is inviolable,
just like the Chancery itself. He added that to continue to
proceed in this case instead of starting afresh after proper
service to the USG has been accomplished would not only add
another layer of complications to this matter and would
result in serious repercussions.

3. (C) In response to the Ambassador,s concerns, the
Foreign Minister reiterated that the GOB does not have
standing to go to the court on behalf of the United States
and that the High Court would not listen to any arguments
that the GOB would make. Minister Skelemani said that if a
Diplomatic Entity like the USG enters into a commercial
contract that the court in Botswana is able to enforce that
contract. However, he added that the GOB would not allow the
organs of the government to execute against the USG property
and that the Registrar had spoken to the Deputy Sherriff and
instructed him not to execute. The Ambassador questioned
how, if the MFA has no standing to enter into the court case
now, will it later in the process have standing/ability to
stop the execution of a court order? Minister Skelemani did
not have a specific answer, but said that it would be
&crazy8 to allow such a thing to happen. The Minister also
suggested that a meeting would be required between the
Ambassador, the Minister and the AG, Anhalia Molokomme and
that he would try to schedule one for first thing on the
morning of July 24.

4. (SBU) The Minister did set up a meeting on the morning
of July 24. In attendance were the Ambassador, the Foreign
Minister, the AG, the Deputy Counsel from the Attorney
General,s Office, Mr. Tshepo Motswagole, the Chief of
Protocol from the Office of the President, Daphne Kadiwe, and
the Permanent Secretary of the Ministry of Foreign Affairs,

GABORONE 00000583 002 OF 002


Samuel Outlule. The Ambassador thanked them for all meeting
with him on such short notice and then reiterated all of his
concerns that he had told Minister Skelemani on the previous
evening. Additionally, the Ambassador said that the USG had
retained local counsel overnight and asked the GOB to file
amicus curiae brief on behalf of the USG to accompany the
USG,s filing to stop the sale. Further, he said that the
USG has never tried to evade the court system in Botswana,
but that as the USG is not the same as a commercial
enterprise or individual, the USG needs to have precedent and
protocol followed prior to joining a suit.

5. (C) Minister Skelmani was the first to respond and
said that he was glad that the USG had retained a lawyer. He
then asked for clarification on which of the USG properties
was scheduled to be auctioned. After learning that it was
not the CMR, he said &because if it was your residence, then
it would definitely be protected by the Vienna Convention.
The AG then concurred that the GOB has no standing in court
and that this should not be viewed as an unwillingness of the
GOB to uphold its obligations to other countries. She said
her office would draft an amicus curiae brief &as long as
time allowed,8 but that she couldn,t be assured that the
most senior people would draft it due to the time
constraints. The AG added that during her time as a judge on
the High Court that she saw many rulings set aside and sales
of properties reversed even after the sale had taken place.

6. (C) However, she emphasized that all action must be
properly taken and/or stopped through court channels. She
said that in areas where international law and the laws of
Botswana were in conflict that it would be up to the High
Court to reach a reconciliation of the conflicting laws based
on the facts. She was uncertain if the High Court would
agree with the USG position that the USG residence was, in
fact, covered by the Vienna Convention, and that she &hoped
we could persuade the Court8 of the USG position. In
response to this the Ambassador asked what would happen if
the sale went forward and he did not allow access to the
premises, as he has been instructed to do by Washington. The
AG said that she would not advise that he prevent entry and
that that would likely be seen as being in contempt of court.
The Ambassador reiterated that those were his instructions
from Washington and that he would follow them, to which the
AG said &those instructions could put you into some
difficulty.8

7. (C) ACTION REQUEST: Now that we have engaged local
legal counsel and will be dealing directly with the court, it
is possible that a stay will be granted and the auction
cancelled or at least postponed while the case goes forward.
Should that not happen, however, please advise how post
should deal with any attempt to auction the property on June
30th. Our inclination, regardless of the AG,s advice, is to
prohibit any attempt by the Court,s Agents to enter or seize
USG property rather than accept what we view to be a
violation of the Vienna Convention. End Action Request.
NOLAN