Feb. 24
BOTSWANA:
State Attacks Judicial Competence
When the High Court granted Professor Kenneth Good a stay of execution on
Saturday until March 7, pending the determination of his case against
deportation, there was jubilation on those who sympathised with the
political science lecturer.
Perhaps buoyed by the Saturday decision, colleagues from the University of
Botswana and other interested parties crammed Justice Sappire's courtroom
after the state successfully filed for the case to be argued starting
yesterday afternoon. Optimism pervaded the air. In fact when Good walked
in to the packed court-room he was given a standing ovation. But that
seemed to be the only celebratory moment for the don and his supporters.
When the court adjourned at 5pm, the optimism was replaced by despondency
and haggard looks from the Good camp. But there were broad smiles on the
faces of representatives from the state, led by Chief State Attorney,
Moemedi Modisenyane and Deputy Attorney General, Abraham Keetshabe.
The case is not over nor has it been won. It seemed the state had come
with the sole purpose of puncturing holes in the arguments advanced by
Good's team. First Keetshabe submitted that the High Court was extremely
misled in granting a stay of execution of Good's deportation order. The
stage was then left to Modisenyane to have his say for the better part of
the afternoon. He said Good was required by law to give the Attorney
General a 30-day notice. He argued that if Good wanted to challenge his
deportation, he ought to first comply with the decree by leaving the
country as ordered by the President.
"He is a visitor to this country and he is here at the pleasure of the
state," he said. He added that Good could institute legal proceeding
against the deportation while he is outside the country.
But Good's chief counsel, Dick Bayford, retorted that it would be of very
little consequence if the lecturer challenged his deportation while he is
outside the country. He said that his client would lose freedoms and other
entitlements as enshrined in the Bill of Rights that he would otherwise
enjoy as a resident of Botswana.
Modisenyane argued that the State Law Proceedings Act forbids the courts
from interdicting or restraining actions of the state or public officials.
Hence the injunction granted on Saturday was a violation of the law. This
submission consumed the time of the court and on many occasions, the judge
had to call on Bayford and Modisenyane to make certain clarifications on
this aspect.
Modisenyane argued that the court does not have competence over the
application brought by Good, including the granting of a stay of
execution.
Bayford countered that the law has been out-paced by the decisions of the
court. He said some judges in Botswana have previously given decisions
which overrode the provisions alluded to by Modisenyane.
But Modisenyane quoted two authorities which entrenched the position as
stipulated in the State Law Proceedings Act.
The lawyers from both camps agree that this particular argument might
decide the fate of the case.
Even Sappire made it known during his comments that the case might be
decided on issues of competency and may not even proceed to the more
substantive issues. Should that happen Good's case might just fold today
and the opportunity to challenge the constitutionality of the Presidential
deportation decree would be lost for now. Modisenyane will make his
replying submissions when the case resumes this morning.
(source: The Reporter)
