Great versus Good: scholar vindicated in banishment battle

Botswana’s expulsion of academic flouted African Charter, says ruling. Rebecca Attwood reports

September 25, 2010

In the months of Kenneth Good’s high court battle with the Botswana government over its decision to expel him from the country, his spirits were regularly buoyed by messages of support called out to him in the streets of the capital Gaborone.

“We’re praying for you, Prof. Hang in there!” was one cry.

It has taken five years, but those prayers were answered this summer with a ruling by the African Commission on Human and People’s Rights that Botswana had violated six articles of the African Charter when it deported Professor Good, an Australian national, in 2005.

Professor Good said he was “in seventh heaven” when the news came through, but the struggle is not over yet. Statements by Phandu Skelemani, Botswana’s minister of foreign affairs, indicate that the country will not comply with the ruling, which ordered the government to provide compensation to Professor Good and to amend its Immigration Act.

The Southern Africa Litigation Centre has warned that Botswana’s failure to adhere to the decision will “undermine its democratic credentials and legitimacy in the eyes of its people and the global community”.

Professor Good’s ordeal began when, at the age of 72, he was working as a political-studies lecturer at the University of Botswana. He had been at the institution for more than 15 years.

Together with Ian Taylor, professor in the School of International Relations at the University of St Andrews, he was invited to contribute to a book on presidential succession. The title of their paper was: “Presidential Succession in Botswana: No Model for Africa”.

“We wrote the paper in the wake of changes to the constitution that said that the president would be appointed by his predecessor. That took the power right out of the hands of Parliament and into the hands of the sitting president. We thought that was pretty outrageous and totally undemocratic. I had no choice but to speak out to uphold the values of political science.”

On 18 February 2005, Festus Mogae, the president at that time, declared Professor Good a “prohibited immigrant” and exercised his powers under the Botswana Immigration Act to have him deported.

The professor was given no reason for the decision. He was determined to fight it and launched a constitutional challenge in the Botswana High Court.

“I was teaching while two and a half months of legal hearings went ahead,” he recalled.

During this time, with the case attracting substantial media coverage, he received many expressions of support.

“People would blow their horns when they saw me and call out in the street. There was one comment I particularly liked: ‘You are saying just what we are thinking!’?”

On one occasion, rushing back to the university to deliver a lecture, he was stopped by police.

“Ah, it’s Professor Good,” said the police officers. “Well, drive more carefully now, Prof,” they said, and let him go.

On 31 May 2005, the High Court ruled that the Botswana Immigration Act made the president’s declaration unassailable.

Professor Good recalled clearly the moment when the judge announced the court’s decision.

“Immediately, a member of military intelligence sitting behind me grabbed hold of me and started pushing me outside the chamber.”

He was bundled into a car and driven around the countryside to shake off journalists and lawyers. The scholar was then kept in a police cell until he received a visit from the first secretary of the Australian High Commission in Pretoria, who informed him that he had to leave the country that night.

This left no time to make arrangements for his daughter, Clara, who was just 17 at the time.

“We drove back to my house. It was filled with reporters and my legal team. Clara was hiding in a back room with a woman friend. She was almost speechless with shock. I remember saying to her: ‘Clara, look, we just have to be brave. There is nothing we can do – I’ll be in touch with you.’ It was awful.”

That night, Professor Good was put on a plane to South Africa.

“I stayed there for about a week until I got something together. Given what earlier judges had said, I thought that we would win. I had no plan B.”

Life post-banishment

First, he went to Sweden to the Nordic Africa Institute in Uppsala, serving as a guest researcher for three months. Next came stints at the London School of Hygiene and Tropical Medicine and the School of Oriental and African Studies, University of London.

“I finally realised this was all too haphazard and I had better go back to Australia and try and put my life together – and that is what I have been doing,” said Professor Good, who is now adjunct professor in global studies at RMIT University, Australia (formerly the Royal Melbourne Institute of Technology) and a visiting professor at Rhodes University, South Africa.

“Being cut off from everybody was psychologically harmful. From living in a collegial, active environment, I had to get used to living alone, out of a suitcase,” he said.

“I knew I was no threat to national security, but certain colleagues – not only my senior colleagues back in Botswana, but also foreign ones – thought there might be something in it.”

The African Commission on Human and People’s Rights, a quasi-judicial organisation, began its investigations in November 2005, after a challenge to the expulsion mounted in Botswana’s Court of Appeal had failed.

It has been a lengthy process. The commission relies on part-time staff who meet just twice a year for two weeks at a time, and progress was further hampered by the Botswanan government’s delaying tactics.

“For a lot of the period, Botswana spent its efforts in obscuring and delaying proceedings. It split hairs and alleged that the commission did not legally exist,” said Professor Good.

But he added that the 62-page decision, which mounts a strong defence of the professor, was worth waiting for. He calls the document “well-nigh perfect”.

It says the professor’s article contained no material with the potential to cause instability, unrest or violence in the country.

“The opinions and views expressed in the article are just critical comments that are expected from an academician of the field…In an open and democratic society like Botswana, dissenting views must be allowed to flourish, even if they emanate from non-nationals,” it says.

The commission found that the Immigration Act violates the African Charter’s pledge to provide every individual with the right to have their case heard because it prohibits a review of the president’s decisions and thus strips all judicial bodies of their power.

With no “tangible response” from the state on how the article poses a threat, the commission says it is left “with no choice but to concur with the complainants that the said article posed no national security threat and the action of the respondent state was unnecessary, disproportionate and incompatible with the practices of democratic societies, international human-rights norms and the African Charter in particular.”

It describes the expulsion of a non-national legally resident in the country simply for expressing his views as a “flagrant violation” of the charter.

It also criticises the government’s handling of Professor Good’s deportation and its impact on his daughter.

For a person who has legally stayed in the country for 15 years, the short amount of time he was given to prepare for his departure was “clearly inadequate to make sufficient family arrangements, especially for a female minor who has no other relative in the country”.

In the intervening years, Professor Good, who is now 77, said that the political situation in Botswana had “gone from bad to worse”.

In a recent article in the peer-reviewed journal Commonwealth & Comparative Politics, he writes about the rise of former vice-president Ian Khama to the presidency of Botswana in April 2008, and the spate of unlawful killings by state security agents that followed. Khama is a former commander with the Botswana Defence Force.

However, Good is optimistic: “At the moment, Botswana is an autocracy, with decision-making by one man. But that’s not tenable in the long term.

“The ruling party has split; there is a new opposition party, the Botswana Movement for Democracy; and opposition unity is being realised. I’m reasonably hopeful.”

As his journal paper concludes: “A democratic Botswana might eventually emerge.”

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