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RAPPORTEUR
17th Session: Commissioner Umozurike
18th Session: Commissioner Umozurike
19th Session: Commissioner Umozurike
20th Session: Commissioner Umozurike
21st Session: Commissioner Umozurike
22nd Session: Commissioner Dankwa
23rd Session: Commissioner Dankwa
24th Session: Commissioner Dankwa
25th Session: Commissioner Dankwa
26th Session: Commissioner Dankwa
27th Session: Commissioner Dankwa
28th Session: Commissioner Dankwa
SUMMARY OF FACTS
1. The Complainant is claiming the right to Botswana citizenship, under the
following circumstances: his father, a Botswana citizen, immigrated to South
Africa to work there. During his stay, he got married and the Complainant
was born of that marriage. His mother died shortly after his birth, and he
was thus brought to Botswana, where he grew up. The Complainant is therefore
claiming Botswana nationality by ancestry.
2. He alleges that in 1978, he was one of the founders and leaders of an
opposition party called Botswana National Front. He is of the view that it
is because of his political activities that he was declared an 'undesirable
immigrant' in Botswana by the government.
3. On 17th October 1978, he was arrested and handed over to the South
African police without being brought before a tribunal. He already had a
judicial action pending before a Botswana court, regarding a temporary work
permit, but with his deportation, he was unable to follow the case.
4. Having returned to Botswana, he was once again arrested and deported
without trial. After his third attempt at returning, he was charged,
convicted of illegal entry and declared an undesirable immigrant. He was
serving a ten-month prison term and had filed an appeal when he was deported
for the fourth time to South Africa, before the case was concluded.
5. Since the Complainant did not have South African nationality, he was
obliged to settle in the homeland of Bophutatswana. He lived there for seven
years until the government of Bophutatswana issued a deportation order
against him and he found himself in the no-man's land between Bophutatswana
and Botswana, where he remained for five weeks, when he was admitted into
Botswana on a humanitarian basis. He obtained a three-month entry permit,
renewable at the entire discretion of the competent Ministry, until June
1995.
6. The Complainant does not and has never held a South African passport or
citizenship of Bophutatswana.
7. He claims to have suffered heavy financial losses, since the government
of Botswana confiscated his belongings and property. He cannot work, since
he does not have the relevant permit, and he is constantly under threat of
deportation. He has gone to great lengths to try to prove his Botswana
nationality, and the appeal against his prison sentence is still pending. He
presently has no funds to prosecute his claims in court.
8. He is asking the government to concede him his nationality by birth.
COMPLAINT
The Complainant alleges that he has been unjustly deprived of his real
nationality and claims violation of articles 3(2), 5, 7(1)(a), 12(1) and
(2), 13(1) and (2), 14, 16(1) and (2) and 18(1) of the African Charter.
PROCEDURE
9. John K. Modise presented the communication on 3rd March 1993.
10. The Commission was seized of it at its 13th Session, held in March 1993.
11. The government was notified of it on 12th April 1993 without any
reaction coming from its side.
12. On 13th May 1993, a letter was addressed to Mr. John K. Modise informing
him that the communication had been examined at the 13th Session, and that
the Commission required some clarifications from him regarding the
exhaustion of local remedies.
13. A second notification was addressed to the government on 12th August
1993, with the same result.
14. On 7th September 1993, the Complainant replied to the Secretariat's
letter dated 13th May 1993 emphasising that he had exhausted the available
local remedies. He added that he could no longer pursue his case before the
national jurisdictions due to lack of financial resources.
15. Another notification was sent to the government on 29th January 1994,
with a copy to the Complainant.
16. On 30th January 1994, the Secretary to the Commission received
correspondence from the spouse of the Complainant, stressing that Mr. John
K. Modise had no more money to pursue the case brought before the national
jurisdiction, since he had been forced into exile and that he had suffered
heavy financial losses due to the confiscation of his belongings by the
Botswana Police.
17. On 22nd February 1994, the Complainant acknowledged receipt of the copy
of the notification addressed by the Secretariat to the government on 29
January 1994. He also called on the Commission to consider his case, as he
believed that he had exhausted all the available local remedies. A short
chronicle of the case was attached to the said correspondence.
18. The Complainant wrote again on 24th October 1994 in reply to the
Secretariat's correspondence dated 8th August 1994, to confirm having
exhausted local remedies.
19. At its 16th Session held in October 1994, the Commission re-examined the
communication and decided to defer its decision until it received
information on the manner in which other human rights bodies handle cases
involving Complainants who are lacking financial means.
20. At the 17th Session, the communication was declared admissible. It was
considered appropriate to assign the case to the Commissioner covering
Botswana to deal with under his human rights promotion activities.
Consequently, responsibility was assigned to Commissioner Janneh. However,
no concrete measures were taken.
21. On 20th April 1995, a correspondence was dispatched to the Complainant
to inform him of the decision regarding the admissibility of the
communication.
22. On 18th May 1995, a letter was received from the European Commission on
Human Rights in reply to the Secretariat's request regarding the issue of
financial difficulties.
23. On 26th May 1995, a correspondence was sent to the Botswana government
to inform it of the decision on admissibility taken by the Commission and to
request it to consider an amicable settlement of the case. There was no
response from the government of Botswana.
24. On 23rd September 1995, the Commission received a correspondence dated
15 May 1995 from the non-governmental organisation, Interights informing it
that it had been designated by Mr. Modise to represent him at the next
session of the Commission. Mr. Modise's letter to Interights dated 2nd
December 1994 in this regard was annexed to the said correspondence.
25. The same envelope contained a second letter from Interights dated 15th
May, stating that the NGO had just been informed of the decision on
admissibility taken by the Commission at its 17th Session and requesting,
therefore, that a formal notification of the said admissibility be addressed
to it. Interights also enclosed an explanatory note on the case and the
demands of the Complainant, and indicated its intention to be present at
Praia, at the 18th Session, to argue the case.
26. At the 18th Session held in October 1995, the Commission heard the
counsel of the Complainant, Mr. Odinkalu. It was decided to defer the
decision on the merits in order to allow some time for the efforts at
arranging an amicable settlement and, if necessary, the case would be
re-examined at the 19th Session.
27. On 19th October 1995, the Secretariat received by fax a Note Verbale
from the Ministry of Foreign Affairs of Botswana with the information that
the Head of State had granted Botswana nationality to Mr. Modise, and that
his certificate of nationality had been sent to him by post on 26th June
1995.
28. On 30th November 1995, a copy of this Note Verbale was dispatched to Mr.
Odinkalu with a letter informing him that if the Commission did not receive
any contrary information before its next session, the granting of
nationality would be considered an amicable settlement.
29. On 14th December 1995, the Secretariat received a letter from Mr.
Odinkalu, counsel to the Complainant, indicating that he did not consider
the granting of nationality as an amicable settlement and asking the
Commission to continue the examination of the case.
30. On 28th December 1995, the Secretariat received correspondence from
Commissioner Dankwa asking for copies of all documentation relevant to the
case for his use during a mission to Botswana.
31. On 25th January 1996, the Secretariat received faxed correspondence from
Mr. Odinkalu indicating his intention to send some supplementary information
to the Commission.
32. On 13th February 1996, the Secretariat received a letter from
Commissioner Dankwa asking for copies of certain pages of Mr. Modise's
passport. The Secretariat forwarded them to him by fax.
33. On 23rd February 1996, the Secretariat sent a fax message to
Commissioner Dankwa inquiring about the results of his mission to Botswana.
34. On 28th February 1996, Mr. Odinkalu, counsel for the Complainant
presented an additional note describing the special conditions of the
nationality by naturalisation granted to Mr. Modise.
35. On 1st March 1996, the Secretariat received a fax message from
Commissioner Dankwa informing it that he had not been able to carry out his
mission to Botswana before the 19th Session.
36. During the 19th Session, the communication was not examined.
37. On 8th May 1996, a letter was sent to the Botswana government,
acknowledging receipt of its Note Verbale of 19th October 1995, and
informing it that the communication was not examined at the 19th Session,
but that it would be done at the 20th Session slated for October 1996.
38. On 8th May 1996, a letter was sent to the Complainant giving him the
same information as above. A copy of the Note Verbale addressed to the
Commission by the government on 19th October 1995 was attached to the
letter.
39. On 9th October 1996, the Secretariat of the Commission received a fax
message from Interights mainly to transmit a copy of Mr. Modise's letter
stating that all domestic remedies had been exhausted, and that even though
the government of Botswana had promised Commissioner Dankwa that Mr. Modise
would be issued with a passport, his application had still not been approved
by the competent authorities.
40. On 10th October 1996, the Secretariat acknowledged receipt of Interights'
correspondence.
41. At its 20th Session, held in Grand Bay, Mauritius in October 1996, the
Commission heard a presentation made by Interights. Following the hearing,
it decided to defer a decision on the merits to its next session in order to
give more time to explore the avenue of an amicable settlement.
42. On 12th December 1996, the Secretariat addressed a Note Verbale to that
effect to the government.
43. On 12th December 1996, the Secretariat addressed a letter to that effect
to Interights.
44. At its 21st Session in April 1997, the Commission decided to close the
case, by considering that Mr. Modise's naturalisation constituted an
amicable settlement of the matter.
45. On 11th June 1997, the Secretariat notified the Complainant, the State
Party and Counsel to the Complainant.
46. On 16th June 1997, the Secretariat received a fax message from
Interights, indicating that it was not satisfied with the Commission's
decision and that it was consequently calling for the matter to be reopened.
47. On 19th June 1997, the Secretariat acknowledged receipt of Interights'
letter of 16th June 1997, while also explaining the decision taken by the
Commission.
48. On 26th June 1997, a letter was written to Mr. Modise on the subject,
with a copy to Interights.
49. On 18th July 1997, the Secretariat received a letter from Interights
subtitled 'Reopening of Communication 97/93' with a nine-page explanatory
note.
50. On 29th July 1997, the Secretariat wrote a letter to Commissioner
Dankwa, with Interights' explanatory note attached, calling for his opinion
as rapporteur on the communication.
51. At its 22nd Session, held from 2nd to 11th November 1997, the Commission
decided to accede to Interights' request, to reopen the case and therefore
to re-examine the reasons that led its previous decision which considered
that the communication had been closed on the basis of an amicable
settlement. The Commission further requested Botswana to provide it with
information on the terms of the settlement reached between the two parties,
the directives regarding its implementation, as well as the type of
citizenship granted to Mr. Modise.
52. On 18th November 1997, the Secretariat wrote to the parties to inform
them of the Commission's decision.
53. On 11th February 1998, the Secretariat addressed a reminder Note Verbale
to Botswana's Ministry of Foreign Affairs.
54. By the 23rd Session, the government of Botswana had not yet reacted to
the above-mentioned request. The Commission consequently requested the
Secretariat to remind the government about the request.
55. On 10th August 1998, the Respondent State responded to the request.
56. At its 24th Ordinary Session held from 22nd to 31st October 1998, the
Commission heard Mr. Botsweletse Kingsley Sebele, Secretary General of the
Botswana Ministry of Labour and Home Affairs. He stated that the laws of his
country could not give Mr. Modise any status other than that which he has
already been granted, adding that Mr. Modise had obstinately refused to
co-operate with the government of Botswana. The Commission thereafter
deferred a decision on the merits to its 25th Session.
57. On 10th November 1998, the Secretariat wrote to the parties concerned
informing them of the Commission's decision.
58. By two Note Verbales dated 6th October 1998 and 9th December 1998, the
Government of Botswana reiterated its position as contained in its earlier
Note of 27th May 1998.
59. On 16th April 1999, Interights, wrote to the Commission requesting a
deferral of the hearing of the case to the 26th ordinary session due to Mr.
Odinkalu's illness.
60. At the 25th ordinary session of the Commission held in Bujumbura,
Burundi, the Commission deferred hearing of the communication to its 26th
ordinary session.
61. On 6th July 1999, the Secretariat of the Commission wrote letters to the
parties informing them of the Commission's decision.
62. On 29th September 1999, the Government of Botswana replied through fax
confirming its position contained in its Note Verbale of 9th December 1998,
and requesting that the information therein be brought to the attention of
the Commissioners and the Legal representatives of the Complainant.
63. On 1st October 1999, the Secretariat of the Commission replied to the
said Note Verbale. A copy of the government's response was forwarded to
Interights for information and necessary action.
64. On 20th October 1999, Interights sent to the Secretariat of the
Commission its written response to the observations of the government of
Botswana.
65. At its 26th ordinary session held in Kigali, Rwanda, the Commission
reviewed the case and noted that the government of Botswana had indicated
that if it did not hear anything contrary to its position, it would consider
the case closed. Since Interights had submitted a brief to the contrary, the
Commission, therefore, decided to bring it to the attention of the
government of Botswana. A final decision on the merits was deferred to the
next ordinary session.
66. The above decision was conveyed to parties on 18th January 2000. A copy
of Interights' brief was attached to the letter sent to the government of
Botswana. No response has been received from the competent authorities of
Botswana.
67. At the 27th ordinary session of the Commission held in Algeria from 27th
April to 11th May 2000, the Commission examined the case and deferred its
further consideration to the next session.
68. Parties were informed of the said decision on 12th July 2000.
LAW
ADMISSIBILITY
69. This communication has a long history before the Commission. It was
declared admissible at the 17th ordinary session of the Commission on
grounds that local remedies were unduly prolonged and the legal process
wilfully obstructed by the government through repeated deportations of the
Complainant. The case was later closed because the Commission considered
that the Complainant's naturalisation constituted an amicable settlement of
the matter. It was however re-opened upon the application of Interights on
behalf of the Complainant.
MERITS
STATE PARTY'S RESPONSE
70. The Respondent State later responded to the Commission's request on the
terms of the settlement reached with the Complainant. It submitted, among
others, that Mr. Modise had been naturalised as a Botswana citizen on 28th
February 1995. By virtue of that, he enjoyed all the rights inherent to his
status as provided in chapter II of the country's constitution. Furthermore,
a document attached to the note from the Respondent State contained the
relevant constitutional provisions regarding Botswana citizenship as at the
time of the country's independence. The document provides explanatory
details on the birth and parentage of the Complainant, who was born in the
territory of what was then the Union of South Africa (which became the
Republic of South Africa in 1961), of a father who had the status of a
protected person of the British crown, though originating from the
protectorate of Bechuanaland (present day Botswana). The Respondent State
points out that Mr. Modise and his counsel had probably innocently
misunderstood and misinterpreted section 20(2) of the Botswana constitution.
The Respondent State avers that the place of birth of an individual
immediately confers its nationality on that person. This
nationality-by-birth may later be rejected or given up by that person, his
parents or legal custodian. To avoid a child being born stateless, the law
operates in such a way that the place of birth confers its nationality to an
individual. It is not necessary to take any legal steps to guarantee that
nationality. Section 20(2) of the constitution concerns those individuals
born outside the protectorate of Bechuanaland and who were at the time of
their birth either subjects of Her Majesty or crown protected persons and
whose fathers had acquired Botswana citizenship in compliance with the
provisions of section 20(1). John K. Modise could have benefited from the
provisions of section 20(1) of the constitution if his father, born in the
protectorate territory and having the status of a crown protected person
were alive at the time of Botswana's independence. John K. Modise does not
meet the conditions of section 20(2) because, having been born in South
Africa, he is by that fact a South African citizen by simple application of
the law and without him having to take any legal steps to prove his
nationality. Hence, in 1966, he was not a subject of Her Britannic Majesty
and of her colonies, nor a protected person of the English crown. South
Africa was not, in 1966, a British colony. Consequently, he did not meet the
conditions required for acquiring Botswana nationality under section 20(2).
71. Section 23(1) concerns the case of those individuals who found
themselves in a similar situation to that of Mr. Modise: in the sense that
it provided the possibility of acquiring Botswana nationality to those
persons whose fathers had acquired that nationality in compliance with
section 20(1); but even the children of such persons were excluded in the
light of the provisions of section 20(2). Since Mr. Modise, by virtue of the
legal provisions, could not lay claim to the nationality of the new State of
Botswana either by birth or by parentage [section 20(2)], the law gave him
the possibility of choosing that nationality by naturalisation, section
23(1). This text provides that all those who had reached the age of majority
should apply for their naturalisation before 1 October 1968. It seems that
Mr. Modise who was 33 years old as of that date had not taken advantage of
that possibility which was open to him for a period of two years. This
explains his present difficulties, for since he had not taken the steps
necessary for his naturalisation, in the eyes of the law he was considered
as not being interested.
72. The argument of Mr. Modise and his counsel that he was a Botswana
citizen by birth and by parentage does indeed seem tenuous. In terms of the
legal provisions in force in September 1966, he could not lay claim to the
said nationality. He was born in South Africa and not in the protectorate of
Bechuanaland. He could not claim Botswana nationality by parentage because
he was explicitly excluded therefrom by section 20(2). The proposition that
he has never claimed any other nationality is entirely immaterial ' for he
did not have any reason to do so. Having been born in South Africa, he
automatically enjoyed the nationality of that country. That automatically
disqualified him from holding Botswana nationality in compliance with
section 20(2). He could, however, by virtue of the provisions of section
23(1), have opted for the said nationality, but he did not. The State of
Botswana has offered all and sundry the possibility of making a conscious
choice between keeping their nationality-by-birth and naturalisation as
citizen of the new State of Botswana. Mr. John Modise could not, in this
regard, hide behind the excuse of ignorance, because no one is expected to
be ignorant of the law.
73. In reaction to the above claims by the Respondent State, the
Complainant's legal representative submitted that such claims contained
several adverse claims of facts, law, and of mixed facts and law that were
untrue, self-contradictory and contested.
74. He contended the claim that when Mr. Modise was deported to South
Africa, the authorities there accepted him as a citizen. He pointed out that
Mr. Modise was first deported to South Africa from Botswana on 17 October
1978, pursuant to a directive issued on 16 October 1978 by the Permanent
Secretary in the Office of the President of the Respondent State. Upon
returning to Botswana four days later on 21 October 1978, he was arrested
and charged with re-entering Botswana, while being a prohibited immigrant.
75. The question as to whether or not South Africa accepted Mr. Modise as a
national was directly addressed in the decision of Hayfron-Benjamin (Chief
Justice) in the appeal of Mr. Modise against his conviction in the case of
John K. Modise v The State, decided by the High Court of the Republic of
Botswana on 20th September 1979. The relevant part of the said decision
reads:
The acceptance warrant, Exhibit P2, was issued at the Kopfontein Border Post
and was dated 18th December 1978, i.e. two months after the Immigration
Officer says he handed the accused over to the South African authorities.
Cross-examination of the witness (the Immigration Officer, testifying for
the Prosecution) disclosed that he was mistaken as to which document the
South African authorities had signed that day.
He said: " the document P2, the acceptance warrant, is not the one which was
signed by the Immigration Post in South Africa at the time I handed the
accused to the border post'" The prosecution, therefore, closed its case
without clearing up a matter, which apart from any other considerations,
would be a factor in the assessment of the sentence to be imposed. If the
South African authorities were only prepared to accept the appellant in
December, the indications are that he was bundled out of the country before
the necessary preparation for his acceptance had been completed and before
the accused, who had been in the country (Botswana) from infancy had settled
his affairs here.
76. From the above therefore, he claims that this decision, which is still
uncontested, shows that the government of Botswana has never shown and was
unable to show that Mr. Modise had indeed been accepted by the South African
authorities as a national of South Africa. On the contrary, he submits that
South Africa did not accept Mr. Modise, but that Mr. Modise was then
banished to the defunct South African Homeland of Bophuthatswana, whose then
government by a letter to Mr. Modise (Ref. No. 4/6/2/8/818/78) of 6 October
1986 wrote that:
Modise does not appear in the population register of the Citizens of
Bophuthatswana. And that the subject of citizenship is a matter between you
(Mr. Modise) and the Botswana government.
To validate their point, in the same year, the then government of the
defunct Homeland of Bophuthatswana deported Mr. Modise back to Botswana.
77. Regarding the claim that there is no citizenship that can be offered or
granted to Mr. Modise, he averred that such is contradicted by the other
claim in the letter to the Commission by Mr. B. K. Sebele, Permanent
Secretary, Ministry of Foreign Affairs dated 9 December 1998 that: Mr.
Modise registered as a citizen under special circumstances at the direction
of the President of the Republic of Botswana, although he failed to indicate
the date on which Mr. Modise was so registered.
He submits that it is impossible to reconcile the claim that the Complainant
registered as a citizen under special circumstances at the direction of the
President of Botswana with the claim by Mr. B. K. Sebele in his letter
aforesaid that "There is no citizenship that can be offered or granted to
Mr. Modise". He attested that Mr. Modise had reported that sometimes in
1998, immigration officials in Lobatse, Botswana visited him and invited him
to sign a document to facilitate the renewal of his residence permit in
Botswana that had expired. When he tried to verify the document, he was
warned that he risked immediate and prompt deportation unless he signed the
document, whereupon he promptly signed. Although he is physically in
Botswana, he has not received any documentation or indication on his current
nationality status from the Respondent State.
78. He disputes as factually untrue the claim that Mr. Modise is responsible
for his failure to enjoy his rights as a citizen of Botswana, by refusing to
produce the necessary documents as proof of his citizenship. In any case, he
points out that their production would not remedy the violations asserted by
him in this case.
79. On the issue that Mr. Modise could not and did not become a citizen by
descent under the repealed section 20(2) of the Constitution of Botswana,
because he was neither a British Protected Person nor a citizen of the
United Kingdom and colonies on 29th September 1966, the counsel submits as
follows:
The repealed section 20 of the Constitution of Botswana referred to in the
letter of Mr. B. K. Sebele provides:
(1) Every person who, having been in the former Protectorate of
Bechuanaland, is on 29th September, 1966, a citizen of the United Kingdom
and Colonies or a British Protected Person, shall become a citizen of
Botswana on 30th September 1966.
Every person who having been born outside the former Protectorate of
Bechuanaland, is, on 29th September, 1966, a citizen of the United Kingdom
and Colonies or a British protected person, and is not a citizen of any
other country, shall, if his father becomes, or would, but for his death
have become a citizen of Botswana in accordance with the provisions of
sub-section (1) of this section, become a citizen of Botswana on 30th
September, 1966.
80. Counsel submits that since it is common ground that Mr. Modise was born
in South Africa of parents from Botswana, section 20(1) is inapplicable to
him. Section 20(2) is, therefore, the applicable provision. However, in
determining whether or not Mr. Modise was a citizen of the United Kingdom
and Colonies or a British Protected Person on 29th September 1966 can only
be made in terms of the British nationality Act of 1948. The provision of
that Act which applies to Mr. Modise is section 12(2), which provided that:
A person who was a British subject immediately before the date of the
commencement of this Act shall, on that date become a citizen of the United
Kingdom and Colonies and possessed any of the qualification specified in the
last foregoing subsection
The last foregoing subsection referred to in this provision is section 12(1)
of the same Act that provides:
A person who was a British subject immediately before the date of the
commencement of this Act shall on that date become a citizen of the United
Kingdom and Colonies if he possesses any of the following qualification,
that is to say:
(a) That he was born within the territories comprised at the commencement of
this Act in the United Kingdom and Colonies, and would have been such a
citizen if Section four of this Act had been in force at the time of his
birth;
(b) That he is a person naturalised in the United Kingdom and Colonies;
(c) That he became a British subject by reason of the annexation of any
territory included at the commencement of this Act in the United Kingdom and
Colonies;
81. Counsel submits further that it is not in dispute that Mr. John Modise's
father, Samuel Remaphoi Modise and his mother, Elizabeth Ikaneng Modise,
were both born in Goo-Modultwa ward in Kanye of the Bangwaketse in the
former Protectorate of Bechuanaland (now Botswana). John Modise, their son
and Complainant in this case, was born in Cape Town where his father, Samuel
Remaphoi Modise was an immigrant worker, about 1943. Had he (Mr. Samuel
Remaphoi Modise) been alive on 30th September 1966, Samuel Remaphoi Modise
who was born in 1912 would have fulfilled the requirement of Section
12(1)(a) of the British Nationlity Act of 1948 and, thereby been a national
of the United Kingdom and the Colonies. Thus, by the combined operation of
Section 12(1) and (2) and Section 1 of the British Nationality Act, John
Modise, his son, was both a British subject and a citizen of the United
Kingdom and Colonies on the day preceding 30th September 1966. As a result,
he became a citizen of Botswana by descent on 30th September 1966. The
relevant provision of Section 1 of the British Nationality Act provides:
(1) Every person who under this Act is a citizen of the United Kingdom and
Colonies or who under any enactment for the time being in force in any
country mentioned in subsection (3) of this section is a citizen of that
country, shall, by virtue of that citizenship have the status of a British
subject'
(2) The following are the countries herein before referred to, that is to
say, Canada, Australia, New Zealand, The Union of South Africa,
Newfoundland, India, Pakistan, Southern Rhodesia (now Zimbabwe) and Ceylon
(now Sir Lanka)
82. On the claim by the Respondent State that there are no classes of
citizenship in Botswana for purposes of enjoying rights and privileges, the
Complainant's counsel asserts that apart from the concession by Mr. B. K.
Sebele, Permanent Secretary, Ministry of Foreign Affairs, that 'as a
registered or naturalised citizen, one is not eligible for election as a
President', there remain, in addition, in Botswana three more serious
consequences of citizenship by registration. These are:
(a) Citizenship by descent arises by operation of law and by biological
facts over which the claimant has no control. Citizenship by registration on
the other hand arises by the interposition of an administrative act
facilitated by acts and facts supplied by the beneficiary.
(b) Citizenship by descent can be transmitted down the line to the children;
but citizenship by registration can only be transmitted to children born
after it has been acquired. This is particularly relevant in this case as
all the children of the Complainant are now adults (above 21 years) and
would therefore remain stateless even if their father were granted
citizenship by registration.
(c) The manner in which different classes of citizenship may be lost
differs. While it takes a voluntary act of renunciation to lose citizenship
by descent, citizenship by registration or naturalisation can be withdrawn
by a directive issued by a Minister of the ruling party or government.
83. While the decision as to who is permitted to remain in a country is a
function of the competent authorities of that country, this decision should
always be made according to careful and just legal procedures, and with due
regard to the acceptable international norms and standards. In order for the
Commission to determine whether there have been violations of the Charter as
alleged by the Complainant, it is incumbent on it to assess the nationality
of the Complainant based on the facts presented before it. The current
circumstances of the Complainant are a result of a policy decision taken by
the Botswana government.
84. The Complainant argues that he has been unjustly deprived of Botswana
citizenship. In the brief submitted by his counsel, it is claimed that the
Complainant was born in South Africa of Samuel Remaphoi Modise (father) and
Elizabeth Ikaneng Modise (mother) from Goo-Modultwa ward in Kanye of the
Bangwaketse in the former Protectorate of Bechuanaland (now Botswana). His
father went to work in South Africa as a migrant worker. These facts are not
contested by the Respondent State (see a copy of a document outlining
Botswana Citizenship Law attached to the Note Verbale of 27 May 1998). In
fact, paragraph 3(a) and (b) of the said document emphatically assert
concerning John Modise's father thus: "He was therefore a British Protected
person'At all times he remained a British Protected person" (see also
paragraph 6 of the said document). Paragraph 3(d) and (e) of the said
document assert that John Modise's mother died when he was three months old
and his father brought him to the then Bechuanaland Protectorate (Botswana)
to ensure that relatives take care of him; while his boyhood days are
outlined in paragraph 3(e) to the effect that John subsequently grew up in
the Protectorate and regularly travelled in and out of the Protectorate. The
attainment of independence by Botswana on 30th September 1966 changed things
and a new citizenship law was incorporated into the new Constitution. The
State Party reproduced some of the relevant provisions of the said
Constitution. They are sections 20(1) and (2) and 23(1).
85. The main point of contention of the Respondent State is that Mr. Modise
could not and did not become a citizen by descent under the repealed section
20(2) of the Constitution of Botswana because he was neither a British
Protected Person nor a citizen of the United Kingdom and Colonies on 29th
September 1966, being a person who was born outside the former Protectorate
of Bechuanaland (now Botswana). Granted that John Modise's father was at all
times a British Protected person, the question for determination is what
then was his son's (John Modise's) nationality? To successfully do this, it
is necessary to look at the relevant provision of the Botswana Constitution.
The government has cited three provisions, to wit: sections 20(1) and (2)
and 23(1) of the Constitution. Section 20(1) provides:
(1) Every person who, having been born in the former Protectorate of
Bechuanaland, is on 29th September, 1966, a citizen of the United Kingdom
and Colonies or a British Protected Person, shall become a citizen of
Botswana on 30th September 1966.
(2) Every person who having been born outside the former Protectorate of
Bechuanaland, is, on 29th September, 1966, a citizen of the United Kingdom
and Colonies or a British protected person, and is not a citizen of any of
other country, shall, if his father becomes, or would, but for his death
have become a citizen of Botswana in accordance with the provisions of
sub-section (1) of this section, become a citizen of Botswana on 30th
September, 1966.
86. Section 20(1) of the said Constitution is not applicable to this case,
for the simple reason that Mr. John Modise was not born in the former
Protectorate of Bechuanaland. Section 20(2) of the Constitution is the
applicable law in this regard, since Mr. John Modise was born outside the
former Protectorate of Bechuanaland of a British Protected person (his
father). Had Mr. Samuel Remaphoi Modise lived on 30th September 1966, he
would, of course, have been a citizen of Botswana by virtue of the provision
of sub-section (1) of this section. The Respondent State does not dispute
this fact. Following the clear wordings of the sub-section, Mr. John Modise
having been born outside the former Protectorate of Bechuanaland of a
British Protected person, would have become a citizen of Botswana but for
his father's death. Mr. John Modise would therefore have become a citizen of
Botswana by birth by the operation of this sub-section. The government's
position, stated in its brief accompanying its Note Verbale of 27th May
1998, and Mr. B. K. Sebele's statement contained in his letter of 9th
December 1998 (Ref: CHA 4/19X(88)PS), that Mr. John Modise is not covered by
section 20(2) of the Constitution of Botswana are neither convincing nor
satisfactory. The Respondent State's Note Verbale referred to above assigns
South African citizenship to Modise as at 30th September 1966 without proof.
Nothing is produced about South African law that confers citizenship on
Modise. It should not be assumed that it is a universal principle that a
person automatically acquires citizenship of the place of birth. It is not
Botswana law that determines South African law.
87. In any event, evidence abounds that the Complainant, Mr. John Modise is
not and has never been accepted in South Africa as a citizen. If that had
happened, Mr. Modise would not have suffered the fate of being deported four
times. The refusal of South Africa to accept him as its citizen forced Mr.
Modise to live for eight years in the "homeland" of Bophuthatswana, and then
for another seven years in "No Man's Land", a border strip between the
former South African Homeland of Bophuthatswana and Botswana. The then
government of the defunct Homeland of Bophuthatswana deported Mr. Modise
back to Botswana (see paragraph 75 and 76 above).
88. John Modise's father was a Tswana at the time of independence, 30th
September 1966 and his son, the Complainant not having been shown to have
any other citizenship, acquired Botswana citizenship by virtue of section
20(2) of the Constitution of Botswana in force at the time. The denial of
this right is in violation of Articles 3 (2) and 5 of the Charter. Article
3(2) provides:
Every individual shall be entitled to equal protection of the law
Article 5 on the other hand provides:
Every individual shall have the right to the respect 'to the recognition of
his legal status
Having arrived at this, it is therefore not necessary to consider the other
provisions of the Constitution cited by the State Party.
89. The Commission takes notice of the fact that the Complainant, Mr. John
Modise as indicated in the above judgement, had lived in the Republic of
Botswana from his infancy. Mr. John Modise had also worked in Botswana and
until 1978, without being subjected to the rigours of obtaining necessary
nationality documents applicable to citizens by registration, whom the
government claims he is. The Commission also takes notice that the
government of Botswana, without acknowledging any responsibility did take
some steps to remedy the Complainant's situation by granting him a
certificate of citizenship in June 1995, under section 9(2) of the
Citizenship Act of Botswana.
90. Deportation or expulsion has serious implications on other fundamental
rights of the victim, and in some instances, the relatives. Having decided
on the issue of Modise's citizenship, the Commission would now advert its
mind to the other claims made by the Complainant, in order to determine
whether his rights guaranteed under the Charter have been violated.
91. The Complainant contends that his incessant deportation, constant
threats of deportation and the accompanying disastrous consequences
constitute a violation of Article 5 of the Charter. The facts of this case
reveal that the Complainant was deported four times to South Africa, and on
all these occasions, he was rejected. He was forced to live for eight years
in the "homeland" of Bophuthatswana, and then for another seven years in "No
Man's Land", a border strip between the former South African Homeland of
Bophuthatswana, and Botswana. These acts exposed him to personal suffering
and indignity in violation of the right to freedom from cruel, inhuman or
degrading treatment guaranteed under Article 5 of the Charter. Article 5 of
the Charter provides:
Every individual shall have the right to the respect of the dignity inherent
in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly'torture, cruel, inhuman and
degrading punishment and treatment shall be prohibited.
92. The deportation also deprived him of his family, and his family, of his
support. The Commission finds this in violation of the Complainant's right
to family life enshrined under Article 18(1) of the Charter. Article 18(1)
provides:
The family shall be the natural unit and basis of society. It shall be
protected by the State which shall take care of its physical health and
moral.
93. The Complainant alleges, and the State has not contested that he had
been deported four times from Botswana. The Complainant also detailed his
plights as a result of these acts. In this circumstance, the Commission
finds that the said deportations had greatly jeopardised the Complainant's
right to freedom of movement, as a citizen of Botswana in contravention of
his rights under Article 12(1) of the Charter. It also infringed upon his
right to leave and to return to his country guaranteed by Article 12(2) of
the Charter. Article 12(1) and (2) provide:
(1) Every individual shall have the right to freedom of movement and
residence within the borders of a state provided he abides by the law.
(2) Every individual shall have the right to leave any country, including
his own, and to return to his country. This right may only be subject to
restrictions, provided for by law for the protection of national security,
law and order, public health or morality
94. The Complainant also claimed to have suffered heavy financial loses,
since the government of Botswana confiscated his belongings and property.
The government of Botswana has not refuted this allegation. It is trite law
that where facts go uncontested by a party, in this case, the Respondent
State, such would be taken as given. The Commission therefore finds the
above action of the government of Botswana an encroachment of the
Complainant's right to property guaranteed under Article 14 of the Charter.
Article 14 reads:
The right to property shall be guaranteed. It may only be encroached upon in
the interest of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws.
95. The Complainant alleges that in 1978, he was one of the founders and
leaders of an opposition party, the Botswana National Front. He alleges
further that it was as a result of his political activities that he was
declared an "undesirable immigrant" in Botswana by the government. He
contends that citizenship by registration, which the Respondent government
granted to him is in several ways inferior to citizenship by birth, which he
deserves as of right. One of such consequences is that he cannot vie for the
highest elected political office in the country, that is, the presidency of
the Republic of Botswana. This fact has been admitted by B. K. Sebele,
Permanent Secretary, Ministry of Labour and Home Affairs of the Respondent
State to the effect that "Except for being barred to be elected or becoming
President of Botswana, he enjoyed all other rights enjoyed by a citizen of
Botswana." (see paragraph 2, page 3 of Mr. Sebele's letter of 9 December
1998)
96. While this may not seriously affect most individuals, it is apparent
that for Mr. Modise such is a legal disability of grave consequence.
Considering the fact that his first deportation came soon after he founded
an opposition political party, it suggests a pattern of action designed to
hamper his political participation. When taken together with the above
action, granting the Complainant citizenship by registration has, therefore,
gravely deprived him of one of his most cherished fundamental rights, to
freely participate in the government of his country, either directly or
through elected representatives. It also constitutes a denial of his right
of equal access to the public service of his country guaranteed under
Article 13(2) of the Charter. Article 13 of the Charter provides:
(1) Every citizen shall have the right to participate freely in the
government of his country, either directly or through freely chosen
representatives in accordance with the provisions of the law
(2) Every person shall have the right of equal access to the public service
of his country.
FOR THE ABOVE REASONS, THE COMMISSION
Finds the Republic of Botswana in violation of Articles 3(2), 5, 12(1) and
(2), 13(1) and (2), 14 and 18(1) of the African Charter
Urges the government of Botswana to take appropriate measures to recognise
Mr. John Modise as its citizen by descent and also compensate him adequately
for the violations of his rights occasioned.
Done at the 28th ordinary session held in Cotonou, Benin from 23rd October
to 6th November 2000. |
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