Giving Effect To International Human Rights in Botswana

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GIVING EFFECT TO
INTERNATIONAL HUMAN RIGHTS
LAW IN THE DOMESTIC CONTEXT
OF BOTSWANA: DISSONANCE
AND INCONGRUITY IN JUDICIAL
INTERPRETATION
a
Bugalo Maripe
a
LLB (Botswana), LLM (London), Senior Lecturer in
Click for updates Law, University of Botswana
Published online: 17 Jun 2015.
To cite this article: Bugalo Maripe (2014) GIVING EFFECT TO INTERNATIONAL HUMAN
RIGHTS LAW IN THE DOMESTIC CONTEXT OF BOTSWANA: DISSONANCE AND INCONGRUITY
IN JUDICIAL INTERPRETATION, Oxford University Commonwealth Law Journal, 14:2,
251-282
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Vol. 14, No. 2, 251–282, http://dx.doi.org/10.1080/14729342.2015.1047654
GIVING EFFECT TO INTERNATIONAL HUMAN RIGHTS

LAW IN THE DOMESTIC CONTEXT OF BOTSWANA:
DISSONANCE AND INCONGRUITY IN JUDICIAL
INTERPRETATION
BUGALO MARIPE *
ABSTRACT
Since 1st April 2008, Botswana has been very vocal on international affairs. She has taken
some very serious positions on the political front on events happening around the globe.
Examples include her rejection of an African Union resolution not to cooperate with the
International Criminal Court in the latter’s quest to arrest and hand over Al Bashir of
Sudan and Muammar Gaddafi of Libya to the International Criminal Court for
prosecution, and defying an African Union resolution which sought to pressurise the
International Criminal Court to drop charges against President Kenyatta of Kenya and his
deputy Ruto. In all these cases her position was based on her self-declared status as a
champion and observer of democracy and the rule of law. This has begged the question
whether Botswana practices those norms within her domestic sphere and whether the
practice of other organs of the state, in particular the judiciary, reflect the same
international posture. The conclusion that will be reached is that the practice in Botswana
is not quite in consonance with the position presented on the international plane.
A INTRODUCTION
One of the legacies that Botswana inherited from her colonial master, Britain, is
the dualist approach to the application of rules of international law within her
domestic jurisdiction. It is a legacy that the latter bequeathed to many of her
former colonies, for whom she drafted constitutions and introduced an admin-
istration similar to the Westminster style of governance. It is small wonder that
for a long time the constitutions of most of the former British colonies were
similar in significant respects, with small variations to suit the local context.
*
LLB (Botswana), LLM (London), Senior Lecturer in Law, University of Botswana. Email: Maripeb@
mopipi.ub.bw I would like to acknowledge with thanks, the assistance of Professors Magnus Killander,
Tiyanjana Maluwa and Iain Scobbie for their helpful comments and suggestions on an earlier draft.
Thanks are also due to the anonymous reviewers for their comments and proposals for refocus and
redirection. However, the views expressed and any errors are entirely my own.
© 2015 Faculty of Law, Oxford University

252 Giving Effect to International Human Rights Law
In Botswana however, it may not entirely be appropriate to say that Britain

introduced a ‘Westminster’ style of governance, for there are certain features
of the British system that were not introduced in the country. The British
law-making system is based on a bicameral legislature consisting of the
House of Commons and the House of Lords whereas in Botswana there is a
single House of the National Assembly which transforms into the Parliament
with the addition of the President.1 Although Parliament in Botswana is the
supreme law-making authority, it can only pass laws that are consistent with
the Constitution.2 The subservience of parliamentary law making powers to
the Constitution was spelt out by the Court of Appeal in Clover Petrus v The
State3 as follows:
Under a written Constitution such as we have in the Republic of Botswana, the National
Assembly is supreme only in the exercise of legislative powers. It is not supreme in the
sense that it can pass any legislation even if it is ultra vires any provision of the
Constitution.4
The supremacy of the Constitution derives from its position as the supreme
law of the land, although there is no specific provision declaring it as such.5
This notwithstanding, several commentators opine that the Constitution must
necessarily be supreme.6 The basis for this position is that it is the constitution
that establishes the organs of the state, that sets up the Parliament, vests it with
legislative powers and prescribes the mode of making laws, formulates the
general principles with which all other laws, be they statutory or non-statutory,
must conform.7 The supremacy of the Constitution has been recognised by the
courts and is now cemented in Botswana law.8 Subject to what will be said
later on, different considerations apply in Britain. The position there is the
reverse of what obtains in Botswana, as the legislature occupies a centre
stage in the constitutional dispensation of that country. Parliament is
supreme and the courts are enjoined to uphold the laws validly enacted by
Parliament, even if they may be inconsistent with the Constitution
(unwritten as it is) or even with treaties to which the British Government
1
Constitution of the Republic of Botswana 1966, s 57.
2
Constitution of the Republic of Botswana 1966.
3
[1984] BLR 14 (Botswana Court of Appeal (BCA)).
4
ibid 33 (Aguda JA).
5
This is in stark contrast to the position in other countries, for example, Constitution of the Republic of
South Africa 1996, s 2, Constitution of Namibia 1990, art 1(6), and Constitution of Uganda 1995, art
2 to mention a few.
6
Bojosi Otlhogile, ‘Constitutional Development in Botswana’ in Wayne Edge and Mogopodi Lekorwe
(eds), Botswana: Politics and Society (JL Van Schaik 1998) 153, 156–157; Benjamin Nwabueze, Constitu-
tionalism in the Emergent States (C Hurst & Co 1973) 5; Daniel Nsereko, Constitutional Law in Botswana
(Pula Press 2002) 37.
7
Nsereko (n 6) 37.
8
Good v AG [2005] 2 BLR 337 (BCA); AG v Dow [1992] BLR 119 (BCA), and many others.
Oxford University Commonwealth Law Journal 253
may be party.9 The position in Britain is captured in Maclaine Watson v Depart-

ment of Trade10 as follows:
[A]s a matter of the constitutional law of the United Kingdom, the royal prerogative,
whilst it embraces the making of treaties, does not extend to altering the law or conferring
rights on individuals or depriving individuals of rights which they enjoy in domestic law
without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-
executing. Quite simply, a treaty is not part of English law unless and until it has been
incorporated into the law by legislation. So far as individuals are concerned, it is res
inter alios acta from which they cannot derive rights and by which they cannot be deprived
of rights or subjected to obligations; and it is outside the purview of the Court not only
because it is made in the conduct of foreign relations, which are a prerogative of the
Crown, but also because, as a source of rights and obligations, it is irrelevant.11
Thus in Britain the doctrine of parliamentary supremacy obtains whereas the

principle of constitutional supremacy reigns in Botswana. This constitutional dis-
parity however, does not, at least in the context of Botswana and Britain, produce
distinct rules for the domestic application of rules on international law. Although
the Botswana Constitution sits at the apex of the legal order, Botswana has not
completely broken with the practices of her former colonial master. Secondly,
the Constitution of Botswana does not carry a provision on the place of rules of
international law in the domestic sphere. Parliament is thus at large to legislate
on matters of international law, and on this score it has made provision, in
general terms only as regards interpretation. As regards the domestic application
of international law, the two take the same approach.
However, it should be mentioned here that Britain has, in the last quarter of the
century, experienced radical constitutional and legislative practices resulting in
somewhat of a departure from the traditional dualist approach. With the enactment
of the Human Rights Act in 1998, the position there has radically changed as the
European Convention on Human Rights and Fundamental Freedoms is now
part of British domestic law.12 Even before this, the domestic law in Britain still
9
British Railways Board v Pickin [1974] AC 765 (House of Lords (HL)). See also Rosalyn Higgins,
‘United Kingdom’ in Francis Jacobs and Shelly Roberts (eds), The Effect of Treaties in Domestic Law
(Sweet and Maxwell 1987) 123. This position may now be contested following the enactment of
the Human Rights Act 1998, which now demands consistency of domestic law with European
Human Rights law. See also the House of Lords decision in R (on the application of Jackson &
Others) v Attorney General [2005] UKHL 56 (HL) and commentary thereon in Jeffrey Jowell, ‘Parlia-
mentary Sovereignty Under the New Constitutional Hypothesis’ [2006] Public Law 562 and
Robina Dexter, ‘Supremacy of Parliament or Sovereignty of the People—Just What is the Court
of Justice Supposed to Be Threatening?’ (1991) 13 Liverpool Law Review 167.
10
[1989] 3 All ER 523 (HL).
11
ibid 544–45 (Lord Oliver).
12
See Lord Irvine of Lairg, ‘The Development of Human Rights in Britain under an Incorporated
Convention on Human Rights’ [1998] Public Law 221; Lord Irvine of Lairg, Human Rights, Consti-
tutional Law and the Development of the English Legal System: Selected Essays (Hart 2003). This marks a radical
departure from Britain’s strictly dualist approach to the Convention. See also Anthony Lester, ‘Fun-
damental Rights: The United Kingdom Isolated?’ [1984] Public Law 46.
had to conform to the overarching demands of European law as enforced by the

European Court of Justice and European Court of Human Rights.13
The previous position still remains in respect of other treaties covering matters
outside human rights. There have been no similar constitutional or legislative
developments in Botswana, and the pre-1998 British position still continues.
There is no requirement of conformity with any notion of African law, nor is
the African Charter on Human and Peoples Rights (‘ACHPR’) directly applicable
in the Botswana domestic landscape. Thus, although the position in regard to the
application of conventional law within the domestic scene in Botswana has strong
colonial antecedents, that position has remained stagnant even in the light of
radical and more liberal measures occurring within the British law-making
system. Even then, and this is the primary subject of this article, although the
courts in Botswana have over the years followed the dualistic approach, they
have not been consistent in their approach to the broader question as to when
rules of international law emanating from treaties will apply within the domestic
legal system.
B THE BOTSWANA LEGAL SYSTEM
The legal system in Botswana is characterised by a ranked system of laws, all of

which apply in a hierarchical fashion. At the apex of the hierarchy sits the Consti-
tution, which is the basic law to which every law owes its validity. The Constitution
contains a Bill of Rights which not only recognises the fundamental rights and free-
doms of individuals, but provides for equal protection of the law and proscribes
discrimination in several forms. The Constitution is however silent on treaties.
In addition to the Constitution, Parliament has made and continues to make
laws for the general administration of the affairs of the country. These laws,
referred to as Acts of Parliament, enjoy validity to the extent that they are not
inconsistent with the Constitution.14 There is also a series of subordinate or del-
egated legislation made under specifically delegated parliamentary powers.
These too have to be consistent with the parliamentary legislation in terms of
which they are made and the Constitution. In addition, there is a body of law,
called the common law15 that derives from the pronouncements of the courts in
13
For the relation between British domestic law and European law, see R v Secretary of State, ex p Brind
[1991] 1 AC 696 (HL); R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603
(HL); Marshall v Southampton and South West Hampshire Area Health Authority (No 2) [1994] 1 AC 530
(HL); R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 (HL).
14
The High Court and the Court of Appeal have on many occasions made this pronouncement and in
some cases struck down legislation for being in contravention of the Constitution. Some of the
notable relevant cases include: AG v Dow (n 8); Desai v the State [1987] BLR 55 (BCA); Petrus v The
State (n 4); Kamanakao I v AG [2001] 2 BLR 654 (Botswana High Court (BHC)).
15
Carleton Allen, Law in the Making (7th edn, Clarendon 1964) 302–311.
the exercise of their adjudicatory functions. The common law must not only be
consistent with the provisions of any statute but must also comply with the Con-
stitution.16 This forms the compendium of sources of law in Botswana. Treaties
are not a source of law, unless they are domesticated as such by legislation, or
where they are part of customary international law, which has been held to be
part of the common law.17
The place of treaties in the domestic arena must therefore be seen in the context
of the general framework of the sources and hierarchy of laws in Botswana.
C TREATY MAKING POWERS
In line with the constitutional legacy inherited from the colonial master, in most
Commonwealth countries, the power to conclude treaties usually lies with the
executive branch. Treaty making is an executive prerogative. In many instances
the executive exercises this power to the exclusion of other branches, especially
the legislature.18 There is no provision in the Botswana Constitution or any
other law that specifically spells out the source of treaty making powers. Since
the powers of the other two organs of state are specifically provided for in
legislation and practice, the executive branch has all the residual
powers, notwithstanding that its own general powers may also be spelt out in
law. In Botswana, executive power vests in the President, who exercises such
power himself or through officers subordinate to him. In the exercise of his func-
tions, unless it is otherwise provided, he is to act in his own deliberate judgment
and is not obliged to follow the advice tendered by any other person or
authority.19
In line with republican traditions,20 in Botswana the President is not only the head
of state but also the head of Government. In consonance with general state practice,
he is the country’s chief diplomat and representative. This responsibility entails, inter
alia, being the country’s chief spokesperson in the community of nations, negotiating
and concluding treaties with other nations. To all intents and purposes he personifies
the country.21 Being an executive act, treaty making powers in Botswana vest in the
presidency, although full powers are usually granted to ministers, diplomatic repre-
sentatives and other agents of the state to sign treaties in line with the provisions of
16
Ndlovu v Macheme [2008] 3 BLR 230 (BHC).
17
See (n 33) and (n 35) below.
18
This contrasts sharply with the position in other countries where the legislature has a say in matters of
treaty making, for example the United States of America. See John Jackson, ‘Status of Treaties in
Domestic Legal Systems: A Policy Analysis’ (1992) 86 American Journal of International Law
310; John Jackson ‘United States’ in Francis Jacobs and Shelly Roberts (eds), The Effect of Treaties
in Domestic Law (Sweet & Maxwell 1987) ch 8.
19
(n 2) s 47.
20
(n 2) s 1 declares, ‘Botswana is a Sovereign Republic’.
21
See Nsereko (n 6) 83.
the Vienna Convention on the Law of Treaties (‘VCLT’).22 The legislature

generally has no say in relation to treaty making, save in limited circumstances of
parliamentary questions, motions or other weapons of the politician’s armoury.
The non-participation by the supreme rule making authority already lays down
the basis for the country’s dualist approach to the place of international conventional
law in the domestic sphere.
Recent judgments by the Botswana Court of Appeal have reignited the debate
on this question—an old subject yet having persistent recurrence in view of ever
evolving circumstances around the globe.23 It will be argued that the value
attached to unincorporated treaties has not been uniform, and that the latest judg-
ments have now whittled down the classical dualist approach.
D THE EXTENT OF DOMESTICATION OF TREATIES IN BOTSWANA
A survey of the extent of incorporation of international treaties into domestic law indi-
cates that on the whole, Botswana has domesticated very few treaties, and even less of
those providing for core human rights. One author illustrates the position thus:
Botswana ( … ) has only incorporated a limited number of treaties into national law. Of
these, the following may be mentioned: The Wildlife and National Parks Act, 1992 giving
22
Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January
1980) 1155 UNTS 331 (VCLT) art 7.
23
In this regard reference could be made to several conferences on the subject out of which books were
produced such as Arthur Robertson (ed), Human Rights in National and International Law (Manchester
University Press 1968), which is a product of the proceedings of the Second International Conference
on the European Convention on Human Rights held in Vienna under the auspices of the Council of
Europe and the University of Vienna, 18–20 October 1965; Francis Jacobs and Shelly Roberts (eds),
The Effect of Treaties in Domestic Law (Sweet & Maxwell 1987), which is a product of a colloquium spon-
sored by the United Kingdom National Committee of Comparative Law held in London, 16–18
September 1986; Roger O’Keefe, ‘The Doctrine of Incorporation Revisited’ (2008) 79 British Year-
book of International Law 7, a paper presented at the Seventeenth Conference of the British Institute
of International and Comparative Law, London, 4 April 2008; several judicial colloquia, for
example, the Judicial Colloquium on Developing Human Rights Jurisprudence: The Domestic
Application of International Human Rights Norms, Bangalore, India 24–26 February 1988;
Magnus Killander (ed), International Law and Domestic Human Rights Litigation in Africa (Pretoria Univer-
sity Law Press 2010) among others. This is in addition to products of academic studies, for example
Andrew Drzemczewski, European Human Rights Convention in Domestic Law: A Comparative Study (Claren-
don 1985); Onkemetse Tshosa, National Law and International Human Rights Law: Cases of Botswana,
Namibia and Zimbabwe (Ashgate 2001); and other independent texts such as Shaheed Fatima, Using
International Law in Domestic Courts (Hart 2005) as well as significant coverage in general texts on
public international law and journal articles including Richard Oppong, ‘Re-Imagining Inter-
national Law: An Examination of Recent Trends in the Reception of International Law into
National Legal Systems in Africa’ (2007) 30 Fordham International Law Journal 296; Onkemetse
Tshosa, ‘The Status and Role of International Law in the National Law of Botswana’ in Charles
Fombad (ed), Essays on the Law of Botswana (Juta 2007) 229; and Emmanuel Quansah, ‘An Examin-
ation of the Use of International Law as an Interpretative Tool in Human Rights Litigation in Ghana
and Botswana’ in Magnus Killander (ed), International Law and Domestic Human Rights Litigation in Africa
(Pretoria University Law Press 2010) 37, which are specific to Botswana.
effect to the 1973 Convention on International Trade in Endangered Species of Wild

Fauna and Flora (CITES); the Waste Management Act 1998 giving effect to the 1989
Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes
and their Disposal; Diplomatic Immunities and Privileges Act 1968 giving effect to the
Vienna Convention on Diplomatic Relations; Settlement of Investment Disputes (Con-
vention) Act 1970, giving effect to the Convention on Settlement of Investment Disputes
between States and Nationals of Other States; and the Geneva Conventions Act 1970,
giving effect to (1) Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the field, (2) Geneva Convention for the Ameli-
oration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea, (3) Geneva Convention relative to the Treatment of Prisoners of War and (4)
Geneva Convention relative to the protection of Civilian Persons in time of War. As
can be seen from this list, none of these incorporated instruments deal with core
human rights.24
Part of the explanation for this state of affairs is that the rights contained in these
treaties are already contained in national laws especially the Constitution or that
measures are in place to ensure their full enjoyment. This is said particularly in
relation to the International Covenant on Civil and Political Rights (‘ICCPR’).
But this is not entirely correct, for as the Good case discussed below will show,
some of the rights embodied in the ICCPR do not find expression in national
law. Further, in all cases where the rights embodied in the ICCPR were
claimed on the domestic scene, Government was always quick to raise a defence
based on non-domestication of the treaty urging the court not to have regard to
them. This is further indication that not all the rights embodied in the ICCPR
have been made applicable, or that the Government never intended that the
ICCPR should have full application in the domestic scene. However, there are
certain laws that incorporate aspects of provisions of international treaties
without necessarily adopting them wholesale, and in many cases without even
reference to those treaties. For example the Children’s Act of 2009, without refer-
ence to the Convention on the Rights of the Child, does incorporate important
provisions of that Convention, especially the Bill of Child Rights.25 The Public
Service Act26 incorporates principles of, and without reference to, conventions
of the International Labour Organisation (‘ILO’). In relation to the ILO conven-
tions, it has to be stated that the Industrial Court has been applying those in an
admirable fashion, as if they were part of domestic law, even when they were
not specifically incorporated by legislation.27 The Environmental Assessment
24
Quansah (n 23) 47.
25
Children’s Act 2009 (Botswana) pt III. It came into force on the 19 June 2009.
26
Public Service Act 2008 (Botswana). It came into force on 1 May 2010.
27
For example, Diau v Botswana Building Society [2003] 2 BLR 409 (Botswana Industrial Court (BIC));
Monare v Botswana Ash (Pty) Ltd [2004] 1 BLR 121 (BIC). Recently, the High Court seems to have
taken the same position, eg in Botswana Federation of Public Sector Unions v Attorney General MAHLB-
000901-11 (21 May 2014) and Botswana Public Employees Union v Minister of Labour & Home Affairs
MAHLB-000674-11 (BHC, 9 August 2012), both yet unreported.
Act28 incorporates principles of, and also without reference to, the Biodiversity
Convention of 1992.29 Apart from the part explanation alluded to above, it is
not clear why incorporation of core human rights treaties into domestic law has
occurred at a minimal level, especially in a country that prides itself as a
‘beacon of democracy’, proclaims to be a major observer of human rights, and
which occasionally points to apparent violations by other states. What does
appear though is that the international posture presented by the state does not
necessarily reflect the real situation in its domestic confines.
E APPLICATION OF INTERNATIONAL LAW IN BOTSWANA
This is perhaps not the place to recount, in any major detail, the debate on the
parallel theories on monism and dualism, and their doctrinal or policy underpin-
nings. It has received sufficient coverage in literature.30 Suffice it to state here that
Botswana has remained steeped in the old classical divide between the theories of
monism and dualism, and is still characterised by the strict dualist approach. As
with many other dualist states, rules of international law embodied in treaties
do not automatically become part of the law of Botswana, unless they are incor-
porated into the domestic law by legislation. This is so even where the rules are
embodied in treaties to which Botswana is a signatory.
That Botswana is a dualist state is correct only in so far as treaty law is con-
cerned. As regards rules of customary international law, the historical background
of the country has determined a monist approach to international law. Pre-inde-
pendence Botswana adopted the common law applicable at the Cape of Good
Hope which was introduced in the territory through the reception clauses at the
time the territory was made a British Protectorate.31 This is the Roman-Dutch
common law.32 In terms of both English common law and Roman-Dutch
common law, customary international law forms part of the domestic common
law, and is applicable without the need for a formal recognition by a domestic
court or any act of transformation.33 Thus the doctrine of automatic incorporation
applies with respect to rules of customary international law, hence the High Court
had no hesitation to say the following in Republic of Angola v Springbok Investments
28
Environmental Assessment Act 2011 (Botswana).
29
Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993)
1760 UNTS 79 (Biodiversity Convention).
30
See sources cited in (n 23).
31
Tshosa, National Law and International Human Rights Law (n 23) 50–59.
32
See Athaliah Molokomme, ‘The Reception and Development of Roman-Dutch Law in Botswana’
(1985) 1 Lesotho Law Journal 121.
33
See also John Dugard, International Law: A Southern African Perspective (3rd edn, Juta 2005); Malcolm
Shaw, International Law (2nd edn, Grotius 1986) 102–110; Carl Bruch, ‘Is International Environ-
mental Law Really Law?: An Analysis of Application in Domestic Courts’ (2006) 23 Pace Environ-
mental Law Review 423.
(Pty) Ltd,34 a case which sought to establish the place of the international law prin-
ciple of the sovereign immunity of foreign states within the domestic law of Bots-
wana where there was no legislation governing the same:
The position in this country is thus similar to that which obtains in Zimbabwe where
there is no Act and to that which obtained in the United Kingdom and South Africa
before their Acts were introduced. All three countries have moved away from the
formal view (the doctrine of transformation) that all aspects of international law
require to be introduced by statute, or by specific decisions of judges, or by long-standing
custom, before they become part of the law of a country. Instead they have embraced the
doctrine of incorporation which holds that the rules of international law, or the jus gentium,
are incorporated automatically into the law of all nations and are considered to be part of
the law unless they conflict with statutes or the common law. Under this doctrine the
rules of international law may be developed by the courts in line with changes in the
world ( … ) Similarly, I have no doubt that the rules of international law form part of
the law of Botswana, as a member of the wider family of nations, save in so far as they
conflict with Botswana legislation or the common law, and it is the duty of the court
to apply them.35
It is implicit that by referring to ‘rules of international law’ the Court actually
meant ‘rules of customary international law’ as this was never the position in
the United Kingdom with respect to treaties. The position in Botswana is the
same, and treaty rules only apply in so far as they may aid in the interpretation
of domestic law, including the Constitution. Otherwise they do not directly
form part of the domestic law of the country. The Interpretation Act specifically
provides that as an aid to the construction of any enactment, a court may have
regard to several sources including ‘any relevant international treaty, agreement
or convention’.36 It follows that in the absence of any ambiguity in legislation or
the Constitution, unincorporated treaties probably have little value in the dom-
estic scene, and are at best moral exhortations or statements of principle which
import no legal obligations.37
34
[2005] 2 BLR 159 (BHC).
35
ibid 161–62 (Kirby J). See also Bah v Libyan Embassy [2006] 1 BLR 22 (BIC) 25. It must be mentioned
here that this appears to run contrary to the position taken in the earlier High Court case of Agnes
Bojang v The State [1994] BLR 146 (BHC) 157 where Gyeke-Dako J said in the context of the right
to legal representation, and after referring to treaties to which Botswana is a party and which
provide for the right: ‘Undoubtedly, the embodiment of these laudable principles in the different
instruments reflects a universal acceptance of the right to legal representation as an important
factor in the concept of fair trial. But even assuming that the right to legal representation is part
of the customary international law, can it be seriously contended that such right to legal represen-
tation as embodied in international instruments, automatically forms part of the municipal laws of
Botswana without any act of incorporation? I doubt it.’ Although both the Springbok and Bah cases
were decided after the Bojang case, neither made reference to it. It is contended the earlier cases
were correct. The Court in Bah seemed to confuse treaty rules with customary international law.
36
Interpretation Act 1984 (Botswana), s 24(1).
37
Maclaine Watson (n 11) 545, where, in relation to an unincorporated treaty, the Court said, ‘as a
source of rights and obligations, it is irrelevant’.
This perhaps owes to the organic substratum of powers to make law and
the constitutional imperatives around it. A brief discussion of that is necessary
to illuminate the foundation of the dualist dimensions in the country.
F THE CONSTITUTIONAL IMPERATIVES OF LAW MAKING IN BOTSWANA
As pointed out earlier, the recognised sources of law are the Constitution, legis-
lation, common law and customary law.38 Since the Parliament is, subject to
powers it may confer on other bodies, the only rule making authority, treaties
can only become law and be applicable once they are transformed by Parliament
into legislation. Otherwise they may only be used as aids in interpreting applicable
domestic laws including the Constitution. Once a treaty is transformed into dom-
estic law it becomes part of domestic law to the same extent as other laws promul-
gated by the Parliament. It is not clear as to how the legislation domesticating a
treaty will rank vis-a-vis any other statutory enactment. What is certain however
is that such statute may not be in conflict with the Constitution. Otherwise the
statute, and in consequence the treaty, will be similarly invalid. However, the
treaty will enjoy validity if it is transformed into law by the Constitution itself,
since its provisions will thereby become part of the constitutional milieu, and as
such be part of the fundamental law of the land. The picture that emerges from
this is that, where the treaty is made a part of the Constitution, it becomes the stan-
dard against which all other laws are tested for validity. No law may then contra-
vene the treaty. If the treaty is domesticated by a statute, it becomes an ordinary
parliamentary enactment and must be tested against the Constitution for validity.
The domesticating Act is an ordinary law, and may not even be superior to other
parliamentary enactments by reason only of its alignment with an international
treaty. It does not rank above others. The debate as to whether the treaty enacting
rules must rank superior to or at the same level with others is an old one. In Abacha
v Fawehinmi39 the Supreme Court of Nigeria held that a domesticated treaty was
not superior to the Constitution. While not expressly holding that it was superior
to other ordinary municipal law, it held, by a majority, that any other rule of
municipal law would be interpreted in line with Nigeria’s international
obligations.
It must be said here that although the courts have always pronounced that
treaties are not self-executing, and that they may be used as aids in interpreting
domestic legislation, the approach adopted and the primacy given to those
international rules or norms, has not been uniform. A few cases that have gone
all the way to the highest court, the Court of Appeal, illustrate this dissonance.
38
Charles Fombad and Emmanuel Quansah, The Botswana Legal System (LexisNexis Butterworths 2006).
39
[2002] 3 LRC 296 (Nigeria Supreme Court (NSC)).
1 Attorney General v Dow40

The matter concerned citizenship of two children born to the marriage of the respon-
dent, Unity Dow, a female citizen of Botswana, and Peter Dow, a male citizen of the
United States of America. The Citizenship Act of 1984 provided as follows:
4(1) A person born in Botswana shall be a citizen of Botswana by birth and descent if, at
the time of his birth
(a) His father was a citizen of Botswana; or
(b) In the case of a person born out of wedlock, his mother was a citizen of Botswana
5(1) A person born outside Botswana shall be a citizen of Botswana by decent if, at the
time of his birth
(a) His father was a citizen of Botswana
(b) In the case of a person born out of wedlock, his mother was a citizen of Botswana
The respondent claimed that sections 4 and 5 of the Citizenship Act offended
sections 3 and 15 of the Constitution in that they discriminated between Botswana
women married to alien men on the one hand, and Botswana men married to
alien women on the other. Section 3 provides:
Whereas every person in Botswana is entitled to the fundamental rights and freedoms of
the individual, that is to say, the right, whatever his race, place of origin, political
opinions, colour, creed, or sex, but subject to respect for the rights and freedoms of
others and for the public interest to each and all of the following namely - life, liberty,
security of the person and the protection of law ( … ) subject to such limitations ( … )
designed to ensure that the enjoyment of the said rights and freedoms by any individual
does not prejudice the rights and freedoms of others or the public interest.41
The inclusion of the word ‘sex’ in this provision means that the rights are
granted to both males and females and both are entitled to the protection of
the law. The phrase ‘protection of the law’ has been interpreted to mean equal
protection of the law.42 However, section 3 is a general provision and the
various concerns that it covers are treated more specifically under various other
parts of the Constitution. In the case of protection from discrimination, section
15 provides in part:
In this section, the expression ‘discriminatory’ means affording different treatment to
different persons, attributable wholly or mainly to their respective descriptions
whereby persons of one such description are subjected to disabilities or restrictions to
which by race, tribe, place of origin, political opinions, colour or creed persons of another such
description are not made subject or are accorded privileges or advantages which are
not accorded to persons of another such description.43
40
Dow (n 8).
41
Constitution of the Republic of Botswana 1966, s 3 (emphasis added).
42
Dow (n 8); Muzila v AG [2003] 1 BLR 471 (BHC).
43
Constitution of the Republic of Botswana 1966, s 15(3) (emphasis added).
The discriminatory effect of the Citizenship Act as contended by the respondent

was that it precluded her from passing citizenship to her children with the result
that her children became aliens in her own land and the land of their birth and
thus, she enjoyed limited rights and legal protections.44
The Court had to interpret sections 4 and 5 of the Citizenship Act in light of
sections 3 and 15 of the Constitution in order to assess the respondent’s claims.
The Court also had to harmonise the apparently disparate provisions of sections
3 and 15 of the Constitution. It was argued for the state that the omission of the
word ‘sex’ from section 15 which describes ‘discriminatory treatment’ means that
discriminatory legislation against women is permitted in Botswana. This was so,
the submission ran, because Botswana is a patrilineal and male orientated

society. There was, the submission proceeded, differential but not discriminatory
treatment. Relying on provisions of the ACHPR, the Convention on the Elimin-
ation of All Forms of Discrimination against Women, and the ICCPR, the High
Court was ‘strengthened’ in its position that ‘it is difficult if not impossible to accept
Mr Kirby’s argument that Botswana is a discriminatory society and that the word
sex was left out of the section because Botswana believes that there should be dis-
crimination based on sex.’45 In the event, the Court interpreted the impugned pro-
visions of the Citizenship Act, as well as section 15 of the Constitution in line with
the values and norms embodied in international instruments and decided in favour
of Unity Dow. Confirming the High Court decision, by a majority, the Court of
Appeal held that section 15 was merely a list of instances of discrimination and
could not override section 3, which was the dominant provision. The word ‘sex’
appeared in that provision and therefore, equal protection for all was guaranteed.
Sex was therefore one of the forms of discrimination envisaged under section 15
notwithstanding that it was not specifically included under that section. Thus
the Court literally ‘read’ the word ‘sex’ into section 15 in its ‘broad and purposive’
approach to constitutional interpretation.46 The Court therefore found sections 4
and 5 of the Citizenship Act to be in violation of the Constitution and set them
aside.
The Court of Appeal was able to find sex-based discrimination in a case in
which the literal approach to legislative interpretation would probably have led
to a different result. The case is cited in many jurisdictions as an indication of
the impact it has had in the prevention of sex based discrimination outside Bots-
wana.47 For present purposes, it is interesting to note the significance attached to
norms and values embodied in human rights treaties signed and or ratified by
44
Paragraphs 13 and 14 of the Founding Affidavit, cited in Dow (n 8) 26.
45
[1991] BLR 233 (BHC) 245 (Horwitz Ag J).
46
Dow (n 8) 164–70 (Aguda JA). This was also the approach that had been adopted by the Court a quo.
47
For example the South African case of Nyamakazi v President of Bophuthatswana [1992] 4 All SA 822
(Bophuthatswana General Division) and the Zimbabwean case of In Re Wood & Hansard 1995 (2)
SA 191 (Zimbabwe Supreme Court (ZSC)). See also UN Department of Economic and Social
Affairs, The World’s Women 2010: Trends and Statistics (United Nations 2010).
Botswana, none of which have been incorporated into domestic law by legislation.
As it is the particular subject matter of this article to show judicial attitudes towards
undomesticated treaties, it is considered important here to show in extenso, what the
Court said. In holding that the Constitution is to be interpreted in the light of
international law and in pronouncing on the criticism mounted against the
High Court’s reliance on international instruments that had not been transformed
into national law by legislation, the Court said:
Even if it is accepted that those treaties and conventions do not confer enforceable rights
on individuals within the State until Parliament has legislated its provisions into the law of
the land, in so far as such relevant international treaties and conventions may be referred
to as an aid to construction of enactments, including the Constitution, I find myself at a
loss to understand the complaint made against their use in that manner in the interpret-
ation of what no doubt are some difficult provisions of the Constitution.48
The treaty rules that the Court took into account were those embodied in the
ACHPR, the ICCPR and other relevant international instruments. Although the
Dow case did not purport to import any rules of international law directly into the
domestic sphere, but used them only as aids to interpretation of municipal law, it
appears that the Court actually went beyond just considering treaty provisions as
mere aids to interpretation; the Court’s interpretation was actually influenced by
those treaty provisions. Indeed the Court took the view that the provisions of law
in issue, be they under the Constitution or the Citizenship Act, had to be construed
in a manner that did not conflict with the country’s treaty obligations. In this, it
cannot be said that international law was used merely as an aid to interpretation,
but was given some primacy which, for the first time, highlighted the role of inter-
national law on the domestic scene, and the significance of ratified treaties, even if
they remain undomesticated. The Court was thus ‘friendly’49 to international law
in the sense of attaching value to norms embodied in treaties to influence construc-
tion of domestic law.
The Court was very clear that rules of international law embodied in treaties to
which Botswana is a party shall become part of the material to use for interpreting
legislation, and not only in cases where there is some ambiguity in the legislation
whose provisions are under construction. The only time they will not be used is
when, by very clear and unambiguous language, the state has, by legislation,
clearly signified its intention to depart from its international obligations, or to
employ a loose mode of speech, to violate the treaty. It is not expected that
states would intend to violate treaties to which they are party. The best that a
state can do is to denounce its membership and withdraw its consent to be
48
Dow (n 8) 153 (Amissah P).
49
As the phrase has been used by some writers: Gerhard Erasmus, ‘The Namibian Constitution and
the Application of International Law’ (1989–1990) 15 South African Yearbook of International Law
81, 93; Tiyanjana Maluwa, International Law in Post-Colonial Africa (Kluwer Law International 1999)
32; Oppong (n 23).
bound by the treaty, especially those providing for the protection of human rights.
International law, as accepted by a wider community of people, must be the
primary standard to ensure compliance with and observance of generally accepta-
ble norms and values. Therefore, it must always be ensured that domestic law does
not conflict with the state’s international obligations; hence the presumption that a
statute will not be interpreted so as to violate a rule of international law.50 It is for
this reason that there is usually a clause in a treaty or convention or other such
instrument that requires states parties to take the necessary legislative and other
measures to give effect to and ensure compliance with the provisions of the
treaty.51 These measures must perforce include actions of all the country’s govern-
ing structures which include enactments of the legislature, actions, pronounce-

ments, speeches or other conduct of the executive and pronouncements of
courts of the state.52 Certainly the value of treaties to which a state is signatory
must lie not only in the use of the treaty as an aid to interpretation, but must
also demonstrate the state’s commitment to be bound by and to align its activities
with the standards embodied in the treaty. That the state accepts those standards is
what the state represents to the international community when it becomes a signa-
tory to and further ratifies the treaty. It would be awkward then for a state not to
recognise, in its domestic sphere, the standards embodied in a treaty of which it is a
party. It is precisely this premise that led the High Court in Dow to opine that:
It is also difficult if not impossible to accept that Botswana would deliberately discrimi-
nate against women in its legislation whilst at the same time internationally support
non-discrimination against females or a section of them.53
It is on this basis that international law prohibits, in any case that a particular
state has not lived up to its international obligations, any defence or excuse or jus-
tification based on a deficiency of its domestic law.54 On the contrary there is a
positive duty on states, especially those that are parties to treaties, to refrain
from acts which would defeat the objects and purposes of a treaty.55 It is submitted
that Botswana, by the act of legislating or enacting the Citizenship Act with the
offending provisions, was engaged in an act contemplated by Article 18 of the
50
Gail-Maryse Cockram, Interpretation of Statutes (3rd edn, Juta 1987) 131–34. See also Fombad and
Quansah (n 38) 224; Dow (n 8).
51
For example, International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 2(2); African Charter on Human
and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS
217 (ACHPR) art 1; and Convention for the Protection of Human Rights and Fundamental Free-
doms (European Convention on Human Rights, as amended) (ECHR) art 1.
52
Ian Brownlie, Principles of International Law (6th edn, OUP 2003) 341.
53
Dow (n 45) 246 (Horwitz Ag J).
54
See VCLT (n 22) art 27. See also the cases of Certain German Interests in Polish Upper Silesia (Germany v
Poland) (Merits) PCIJ Rep Series A No 7 and Treatment of Polish Nationals & Other Persons of Polish Origin
or Speech in the Danzig Territory (Advisory Opinion) PCIJ Rep Series A/B No 44. See also Brownlie
(n 52) 34–35.
55
VCLT (n 22) art 18.
VCLT and was, to the extent that the Act remained in force and its provisions con-
stantly invoked, in violation of her obligations under the ACHPR, ICCPR and
general international law. In relying on the provisions in international treaties
to which Botswana is a party, the Court ensured that the lofty ideals embodied
in the treaties found expression in the legal environment of Botswana, and most
importantly, that even without transforming treaty rules into national law, she
remained in conformity with the treaties she had signed up to. This is the best
example of the application of the pacta sunt servanda principle which has been
said to be the fundamental principle of international law.56 For a long time this
case was, and still is, considered the most influential decision in Botswana on inter-
national standards of constitutional significance. It has been recognised by the

United Nations as a significant decision of its decade.57 After the Dow case had
introduced a standard for the assessment of compliance with constitutional obli-
gations and the application of international norms within the domestic sphere,
along came the decision in Good.
2 Good v Attorney General58

Kenneth Good, an Australian national then employed by the University of Bots-
wana, was declared a persona non-grata by the President of Botswana in terms of
powers vested in the latter by the Immigration Act,59 which provided in part:
7. Subject to this Act, the following persons shall be prohibited immigrants and their
entry into or presence within Botswana is unlawful -
(…)
(f) any person who, in consequence of information received from any source deemed by
the President to be reliable, is declared by the President to be an undesirable inhabitant
of or visitor to Botswana,
11(6) No appeal shall lie ( … ) against any notice that a person is a prohibited immigrant
by reason of any declaration by the President under section 7(f) and no court shall ques-
tion the adequacy of the grounds for any such declaration
36(1) No person shall have the right to be heard before or after a decision is made by the
President in relation to that person under this Act
(2) No person affected by any such decision shall have the right to demand any infor-
mation as to the grounds of such decision nor shall any such information be disclosed
in any court.
56
See International Law Commission, Draft Articles on the Law of Treaties with Commentaries (1966)
2 Yearbook of the International Law Commission 121, cited in David Harris, Cases and Materials on
International Law (7th edn, Sweet & Maxwell 2010) 790.
57
See the UN Department of Economic and Social Affairs (n 47).
58
Good (n 8).
59
Immigration Act No 9 of 1991, Cap 25:02. This Act has now been repealed by the Immigration Act
2011 9 (Act No. 3 of 2011). The provisions cited herein have however been retained under different
section numbers.
Kenneth Good then applied to the High Court to set aside the declaration as
being unlawful and unconstitutional in several respects and relied on several
treaties which Botswana had ratified. It was submitted on his behalf, inter
alia, that the Presidential declaration and the steps taken in making the depor-
tation order without an opportunity to be heard, were in violation of Botswana’s
obligations under international treaties or declarations notably the ICCPR and
the Universal Declaration on Human Rights. In dismissing this argument, the
Court took the view that ‘in view of the express provisions to the contrary
one cannot interpret domestic law to accommodate Botswana’s undertakings
to avail deportees facing expulsion, with a hearing in terms of the international
treaties.’60 In the event the Court dismissed the application. On appeal to the
Court of Appeal it was again submitted that section 36 violated the ACHPR
and the ICCPR. The Court affirmed the decision of the High Court on the
basis that the treaties relied on were not applicable as they had not been pro-
mulgated into domestic law.
The reliance on the dualist approach was not surprising and perhaps expected,
with the Court holding that the Immigration Act was so clear as to not require any
resort to international treaties. In excluding the application of international trea-
ties altogether, the Court remarked:
The rule of law is the very bedrock of the fundamental rights and freedoms contained in
section 3 and finds reflection in those provisions of ss 4 to 16 of the Constitution such as
the rights to life, to personal liberty, to a fair and expeditious trial and the freedom of
expression and of conscience. The rule of law is also the cornerstone of the domestic law of the
country and its application is not dependent upon some concept of a quality of law inherent in the articles
of international treaties or conventions which were not in existence when the Botswana Constitution was
framed.
The specific provisions in the treaties relating to the expulsion of aliens or foreigners were
accordingly not then in contemplation. However, in the law of the new Botswana those
matters were.61
This statement invites comment. Firstly, for a court to avoid the application of
rules embodied in a treaty to which Botswana is a party on the basis that they were
not in existence when the Constitution was framed, is the worst manifestation of a
cop-out position adopted by the highest court in the land. This begs the question
how the same treaty rules would have influenced the decision of the same court in
Dow. The relevance of this statement is difficult to locate, as the Court was inter-
preting provisions of the Immigration Act vis-à-vis the Constitution, and the Court
could at the very least, have said that the impugned provisions were so clear as not
to require the aid of international treaties in their interpretation.
60
Good v AG [2005] 1 BLR 462 (BHC) 473 (Sapire AJ)
61
Good (n 8) 356–57 (emphasis added).
Even though the Constitution predates the treaties, Botswana has now assumed
obligations under those treaties to shape her destiny. They should influence and
indeed shape domestic law. Secondly, the statement carries two fundamental
factual inaccuracies: it is factually incorrect to suggest, as Tebbutt JP did, that
the principles embodied in the various instruments were not anticipated by the
framers of the Constitution. The United Kingdom, as a member of the Council
of Europe, was an original party to the European Convention on Human
Rights and Fundamental Freedoms and was aware of the overarching influence
of the UDHR on the conception and final content on that convention.62 This is
the reason why the chapter on the Bill of Rights in the Constitution mirrors pro-
visions of the European Convention, and this is further evidence of the motivation
behind the enactment of those provisions in the Constitution. It is not as if the
British Government was very original in the bequest of constitutions with pro-
visions on fundamental rights and freedoms when she herself had no written
instrument embodying those values that applied to her domestic situation. In a
judgment involving interpretation of the Constitution of Bermuda, a former
dependent territory of the United Kingdom, in Minister of Home Affairs v Fisher,63
one of the renowned judges in the United Kingdom, Lord Wilberforce, opined
that:
It is known that this chapter, as similar portions of other constitutional instruments
drafted in the post-colonial period ( … ) was greatly influenced by the European
Convention on Human Rights and Fundamental Freedoms. That convention was
signed and applied by the United Kingdom to dependent territories including
Bermuda. It was in turn influenced by the United Nations Universal Declaration of Human
Rights.64
This statement is equally true for Botswana, as will be demonstrated below, as it

is for most former British colonies and dependent territories. In addition, the prin-
ciples of the Universal Declaration of Human Rights were already, at the time,
being subscribed to by a great number of states and were being embodied in
regional human rights treaties, to an extent that, it is submitted, they had
become part of customary international law.65 It is further argued that some prin-
ciples that were not in existence at the time the opinion was expressed, and which
were developed decades after the adoption of the Declaration, appear to be
62
Britain played a significant role in the formulation and drafting of that convention and was the first
state to ratify it. For a detailed discussion of the United Kingdom’s involvement in the conception
and drafting of the European Convention on Human Rights see Brian Simpson, Human Rights at
the End of Empire: Britain and the Genesis of the European Convention (OUP 2001). See also Anthony
Lester (n 12); William Wade and Christopher Forsyth, Administrative Law (10th edn, Oxford 2009)
138.
63
[1980] AC 319 (Privy Council (PC)),
64
ibid 328 (emphasis added).
65
Sean MacBride, ‘Status of the European Convention in the Hierarchy of Rules of Law’ in Arthur
Robertson (ed), Human Rights in National and International Law (Manchester University Press 1968) 66.
recognised as forming part of customary international law. For example, the pre-
cautionary principle and sustainable development in environmental law have been
adopted in many domestic pieces of legislation on environmental protection. Their
status has also been recognised in many cases in various jurisdictions including the
International Court of Justice.66 Those principles had a significant influence on the
constitutional principles of the country in its formative stages. They certainly were
not res inter alios acta67 in the country’s original constitutional dispensation. Thirdly,
and contrary to what Tebbutt JP said, at the time the Constitution was made,
regard was actually had to principles embodied in human rights treaties then in
force across the globe. In embracing Lord Wilberforce’s views in Fisher, the
Court in Dow said:

The Constitution of Botswana was enacted on 30 September 1966, in similar circum-
stances as those mentioned by Lord Wilberforce in Minister of HomeAffairs (Bermuda) and
Another v Fisher & Another [1980] A.C 319 at pp 328–9 where he says that the United
Nations Universal Declaration of Human Rights of 1948 and the European Convention
for the Protection of Human Rights and Fundamental Freedoms of 1953 had some influ-
ence. This was no doubt inspired by the Atlantic Charter ( … ) The African Human and
Peoples Charter and other continental and regional charters followed ( … ) The adoption of
the Constitution of sovereign Botswana emerging from colonial rule was obviously done with the lofty prin-
ciples enshrined in the Charters and Declarations.68
This puts paid to and disposes of the view taken by Tebbutt JP and it is sub-
mitted that these factual inaccuracies were partly responsible for the approach
adopted and the conclusions reached by the Court. By her adherence to the
ACHPR, the UN charter, the ICCPR, and other instruments, Botswana has
declared to the international community that fundamental rights and freedoms
of individuals including aliens in her territory will be guaranteed, including due
process and the right to review presidential action. Yet, it abrogates the same
by domestic legislation. This is what is sought to be prohibited by the pacta sunt ser-
vanda principle provided for in the VCLT.69
It is possible to argue that the decisions in Dow and Good are not necessarily
inconsistent. In Dow the Court not only had to interpret provisions of the Citizen-
ship Act as against the Constitution, but also had to harmonise two provisions of
66
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December
1974 in the Nuclear Tests (New Zealand v France) Case [1995] ICJ Rep 288. The dissenting opinion of
Judge Weeramantry is particularly instructive. The Case Concerning the Gabcikovo-Nagymaros Project
(Hungary v Slovakia) [1997] ICJ Rep 7 is a case in point on the principle of sustainable development.
The principle was also applied by the Arbitral Tribunal constituted under the United Nations Con-
vention on the Law of the Sea in the Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan) (2000) 23
RIAA 1. See generally, Jon Dyke, ‘The Evolution and International Acceptance of the Precautionary
Principle’ in David Caron and Harry Scheiber (eds), Bringing New Law to Ocean Waters (Martinus
Nijhoff 2004) 357–79.
67
As the phrase was used in Maclaine Watson (n 11) 545.
68
Dow (BCA) (n 8) 178–79 (Bizos JA) (emphasis added).
69
VCLT (n 22) art 27.
the constitution. In Good on the other hand, it was interpreting provisions of the
Immigration Act as against the Constitution. But for present purposes it is inter-
esting to see the ‘friendliness’ or aversion to international treaties that was dis-
played by the Court. In Dow, with the rider above, the Court was more
accommodating. In Good, the Court was not disposed to entertain and was
almost dismissive of them, taking the position that the domestic law of the
country and its application is not dependent upon some concept of a quality
inherent in the articles of international treaties or conventions which were not
in existence when the Botswana Constitution was framed.
In attaching the necessary emphasis on the relevance of international treaties,
and to indicate the extent to which international treaties influenced the

outcome, the Court in Dow, per Aguda JA, relied on the views of judges expressed
at a Judicial Colloquium in Bangalore, India,70 such as those by the Chief Justice
of Pakistan, Muhammad Heleen CJ, which he embraced, accepted and relied
upon:
A state has an obligation to make its municipal law conform to its undertakings under
treaties to which it is a party. With regard to interpretation, however, it is a principle gen-
erally recognised in national legal systems that, in the event of doubt, the national rule is
to be interpreted in accordance with the state’s international obligations ( … ). The domestic
application of human rights norms is now regarded as a basis for implementing constitutional values
beyond the minimum requirements of the Constitution. The international human rights are in fact part
of the constitutional expression of liberties guaranteed at the national level. The domestic courts can
assume the task of expanding these liberties.71
Following this approach, the Canadian Supreme Court has held, in Mavis Baker
v Minister of Citizenship and Immigration,72 a case that resembles Good in a significant
respect, that the values reflected in international human rights conventions are not
only to be treated as mere aids to interpreting domestic law, but are to be treated
as aiding the contextual approach to statutory interpretation, as they are part of
the legal context in which legislation is enacted. Had this been the approach in
Good, it is submitted that a different and perhaps more preferable position
would probably have been reached.
In a dissenting opinion in Good, Lord Coulsfield JA,73 found that section 36(2) of
the Immigration Act, to the extent that it denied a person subject to a deportation
an opportunity to make representations, and denied him the opportunity to
demand reasons for the deportation even when disclosure could not harm the
public interest, was arbitrary and did not pass constitutional muster. He
70
Developing Human Rights Jurisprudence: The Domestic Application of International Human Rights Norms (Com-
monwealth Secretariat 1988).
71
ibid 101–03 (emphasis added). See also Dow (n 8) 169 (Aguda JA).
72
Sometimes cited as Baker v Canada [1999] 2 SCR 817 (Supreme Court of Canada (SCC)).
73
Good (n 8) 363–66.
summed up his judgment by outlining the trend towards allowing deportees rep-
resentations and utility of an ideal statute. He said:
It is, I think obvious that there has been a movement both internationally and within
many state jurisdictions in favour of extending the right of resident aliens threatened
with expulsion. That, indeed, is the purpose of art 13 of the ICCPR. In the United
Kingdom, the court decisions, even those which affirm most positively the right of the
executive to expel aliens without reasons, also show that successive Home Secretaries
have shown that they ought to give a person threatened with deportation as much infor-
mation about the reasons for the action as may be possible and to allow some opportunity
for representations ( … )
Observance of the rules of natural justice is of benefit to the person who has to take the
decision as well as the person subject to it. Giving an opportunity for representations
reduces the risk that a mistake may be made. Giving reasons may help to protect the
maker of the decision from speculative and unfounded criticism.74
With Lord Coulsfield JA being a lone voice, the Court in Good has effectively
given its imprimatur to the cloak used by the authorities to hide behind a mere
ipse dixit that deportation is in the public interest and that to give reasons will actu-
ally compromise national security. This is what is proscribed by the treaty rules
and this renders section 7(f) of the Immigration Act contrary to Articles 13 and
7 of the ICCPR and the ACHPR respectively.
There is a further uncertainty that the Good decision brought on matters of
general constitutional law. It had been submitted for Kenneth Good that the
impugned sections of the Immigration Act were ultra vires the Constitution as
they, inter alia, precluded a challenge on the review of presidential exercise of
power. The Court threw out this argument on the basis that Parliament had
decreed what was considered necessary in the public interest and the President
was entitled to exercise those powers. The Court had, on numerous previous
occasions held that as the Constitution is the superior law of the land, and it pro-
vides for among other things, the protection of individual rights, there is no par-
liamentary legislation that can take away a right of review in court. The upshot of
this is that no parliamentary enactment can oust the jurisdiction of the court on
review, but can only exclude an appeal.75 The Court followed the reasoning in
English cases dealing with ouster clauses,76 which have held that where a
statute excludes a decision of an authority from the purview of the courts, that
decision is only final on the facts but not on the law, and that only an appeal is
excluded but not a review. This reasoning has influenced the courts of Botswana
as they have refused to have their jurisdiction taken away by the use of ‘ouster
74
ibid 366.
75
See decisions of the Court of Appeal in Leipego v Moapare [1992] BLR 229 (BCA) and Gaseitsiwe v AG
[1996] BLR 54 (BCA).
76
Notably Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL); R v Medical Appeal Tri-
bunal Exparte Gilmore [1957] 1 All ER 796 (England and Wales Court of Appeal (CA)) and others.
clauses’ and have intimately clung to their power to issue appropriate orders on
review.77 In refusing to accept an exclusion, the most powerful argument used
by the courts is that in terms of the Constitution, the High Court has unlimited
original jurisdiction78 to entertain any matter that is justiciable and can pronounce
upon rival claims presented by the parties.
It follows that any parliamentary legislation that seemingly takes away from the
courts the power to determine any legal disputes would prima facie be unconstitu-
tional and liable to be set aside. To the extent that the Immigration Act precludes
a review by the court of the President’s decision under section 7, it effectively pre-
vents the court from determining on review, that dispute. It therefore does not pass
constitutional muster. In addition, the court has itself pronounced that it possesses
an inherent jurisdiction to dispense justice by reason that it is a superior court of
record as provided for by the Constitution itself.79 This position was authorita-
tively pronounced in State v Moyo,80 a decision which should not be surprising as
this follows English traditions on the inherent powers of the High Court as a
superior court of record.81 It means therefore that any statute that purports to
take away this inherent power, firmly entrenched in the Constitution, does not
pass constitutional muster and must perforce be null and void. By upholding
the validity of the impugned sections of the Immigration Act which preclude
the High Court in assessing the validity or otherwise of Presidential action in
matters of deportations, the court not only circumvented the time honoured con-
stitutional principle but went against its own precedent and in consequence
imposed upon itself fetters that constrained it in discharging its mandate. The
decision is wrong on that account. As will be seen later on, it is partly on this
basis that the African Commission on Human and Peoples’ Rights found Bots-
wana to be in violation of its treaty obligations.
A former High Court judge has opined that the process through which Kenneth
Good was ejected from the country has no place in a democracy and that it is a
relic from the past. Such action evinced unaccountable decision-making and
should not be condoned in a country that prides itself as a ‘beacon of democracy’
in Africa. She then said:
77
In addition to the Leipego and Gaseitsiwe cases, the High Court has made similar pronouncements in
several cases such as Smith’s Transport v Index Motors [1981] BLR 167 (BHC); Tsogang Investments (Pty)
Ltd v Phoenix Investments (Pty) Ltd [1989] BLR 512 (BHC); Tafic Sporting Club v Mokobi NO [1997] BLR
177 (BHC); Botswana Football Association v P G Notwane Football Club [1994] BLR 37 (BCA), among
others.
78
Constitution of the Republic of Botswana 1966, s 95(1).
79
Constitution of the Republic of Botswana 1966, s 95(5) provides, ‘The High Court shall be a superior
court of record and, save as otherwise provided by Parliament, shall have all the powers of such a
court’.
80
[1988] BLR 113 (BHC).
81
See in this regard Jack Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Pro-
blems 23.
There is absolutely no place for a decision making process that does not comply with the
rules of natural justice. There are two processes that can be employed to eject a non-
citizen from this country. One is following a conviction - I have no quarrel with this
process as the person would have gone through a transparent legal process during
which he would have had the right to defend himself. In that case the deportation is
one of the consequences of a guilty finding. The other is through a process that is
closed, unaccountable and as the Court of Appeal has said, not open to questioning.
That cannot be right in a democracy.82
The African Commission on Human and Peoples’ Rights has since found in
favour of Kenneth Good.83 The Commission held, inter alia, that to the extent
that the Botswana courts held that sections 11(6) and 36(a) of the Immigration
Act do not allow the courts to review the decision of the President, they are in
effect ouster clauses and prevent national judicial organs from entertaining
alleged human rights violations. This denied victims of human rights abuses, the
right to have their cases heard. This is in conflict with Article 7(1)(a) of the
ACHPR.84 The Commission also found that Botswana had violated Article 12
(4) of the ACHPR,85 because while accepting that the phrase ‘in accordance
with the law’ referred to the domestic law of the state party, it critically urged
that the law must comply with the state’s international commitments. Critically,
the Commission urged:
But the mere existence of the law by itself is not sufficient; the law has to be in line with
not only the other provisions of the Charter but also other international human rights
agreements to which Botswana is a party. In other words, Botswana has the obligation
to make sure that the law (in this case the Immigration Act) does not violate the rights
and freedoms protected under the African Charter or any other international instrument
to which Botswana is signatory.86
Any state that abides by its international commitments would have found this
statement compelling and demanding corrective legislative action, for it not
only speaks of adherence to the ACHPR, but other agreements as well. To date
there has not been any indication of a desire to adopt the necessary legislative cor-
rective measures, and the state continues to deport foreigners in circumstances
similar to those in Good.
82
In a newspaper article, writing under a nom de guerre, ‘Why Kenneth Good Was (Is) Good For Our
Democracy’ The Botswana Gazette (Gaborone, 17 March 2011) 14.
83
Kenneth Good v Botswana Communication 313/05, proceedings of the 47th Ordinary Session of the
African Commission on Human and Peoples’ Rights (12–26 May 2010), EX CL/600 (XV11),
Annex IV.
84
ACHPR (n 51) art 7(1)(a) provides, ‘Every individual shall have the right to have his cause heard.
This comprises the right to appeal to competent national organs against acts of violating his funda-
mental rights as recognised and guaranteed by conventions, laws, regulations, and customs in force.’
85
ACHPR (n 51) art 12(4) provides, ‘A non-national legally admitted in a territory of a State party to
the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the
law.’
86
Kenneth Good (African Commission on Human and Peoples’ Rights) (n 83) 102.
The Commission’s position is consistent with the view taken by Lord Coulsfield.
The Commission also took the view that the complainant’s right to have recourse
to the national courts was illusory or nugatory in that, whereas he was permitted to
file papers challenging his deportation, in effect this was only a smokescreen which
had no real prospect of redress. The Commission said:
In the present Communication, after the order from the President to expel the victim, the
latter challenged the said order in the High Court and Court of Appeal. Both Courts
declined to examine the merits of the case citing Sections 11(6) and 36(a) of the Botswana
Immigration Act which prohibits them from doing so. The refusal of the Courts to review the
President’s decision foreclosed any avenue available to the victim to seek remedy. Thus, while the victim was
able to access judicial organs to have his case heard, the ouster of the jurisdiction of the organs made that
access illusory as the organs have been prevented by law from entertaining the victim’s grievance. It there-
fore means that as far as the victim’s case is concerned, there is no competent national
judicial organ within the Respondent State, as a tribunal which is competent in law to
hear a case that has been given the power by law and has jurisdiction over the subject
matter and the person. In the present case, the High Court and the Court of Appeal have not been
given the power and consequently do not have jurisdiction over the subject matter.
The Commission is of the view that Sections 11(6) and 36(a) of the Botswana Immigration
Act which prohibit a review of the President’s decision absolves all judicial organs of
competence in the matter thus depriving victims whose rights are threatened or actually
violated by the President’s decision from being heard by judicial organs to protect their
rights. This kind of arrangement does not only violate Article 7(1)(a) of the African
Charter but also threatens the independence of the judicial guaranteed under Article 26.87
G DOW AND GOOD: A COMPARISON
The discussion herein may appear incomplete without an attempt to find the simi-
larities and differences in the Dow and Good cases. In both cases, the Court was
called upon to determine the compatibility of primary legislation with the Consti-
tution. The differences seem to lie in the fact that in Dow, the Court also had to
interpret two sections of the Constitution, sections 3 and 15 as against one
another. The Court in Dow actually took the position that the ‘difficulty’ in
interpretation arose not from the Citizenship Act but from the Constitution
itself. The Court did not say that the provisions of the Constitution were ambig-
uous as to warrant resort to treaty rules of international law. It preferred the word
‘difficult’.88 This arose from the fact that whereas section 3 contained the word
87
ibid 96 (emphasis added). ACHPR (n 51) art 7(1)(a) provides, ‘Every individual shall have the right to
have his cause heard. This comprises: (a) the right to an appeal to competent national organs against
acts violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations,
and customs in force.’
88
Dow (n 8) 152 (Amissah P).
‘sex’, the word was missing from section 15. It does not seem that the inclusion of
one word in one section of an instrument, and the omission of that word in another
necessarily makes the meaning ambiguous or unclear. However, given that serious
implications would ensue as a consequence of that omission, the Court harmo-
nised the two provisions in such a way as to advance the international norms.
Rules of international law in treaties came in to resolve an issue in circumstances
where some could say there was no ambiguity and the language of the provisions
in issue was clear. This derived much utility from international law rules.
In Good the Court did not seem to accommodate rules of international law as it
had in Dow. This was ostensibly on the basis that the issue concerned the interpret-
ation of a statute, which is different from constitutional interpretation. While this is

correct, the statute under consideration, and the particular provisions impugned,
were provisions that conferred a human right ie the right of an alien to remain in
the territory of the receiving state. In the construction of statutes, sections confer-
ring fundamental human rights are to be given a broad and generous interpret-
ation, while those derogating from those rights are to be narrowly construed.89
This being the case, there was a sufficient basis for the Court to have had
regard to rules of international law.
All the international law compatibility arguments and positions taken by the
Court in Dow were either ignored or downright disregarded in Good, with
the Judge-President electing to exclude them on the basis either that views of the
Human Rights Committee of the ICCPR,90 although instructive, were in no way
binding on the Court as they are in essence advisory in nature or that the other auth-
orities cited dealt with statutory or constitutional provisions that had no equivalent
in Botswana.91 In fact the attitude of the Court towards international law was one of
‘avoidance’ rather than accommodation as it had been in Dow.
If a court could embrace principles embodied in international and regional trea-
ties to which the state is a party and has ratified in one case, and the same court,
albeit differently constituted, enters a disclaimer in respect of those very principles,
and in fact proceeds to pronounce on their non-application, then the court
demonstrates the highest level of dissonance and incongruity in the exercise of
its judicial function. It therefore fails in one of its primary responsibilities, which
is to provide guidance to all lower courts through clear and unambiguous judg-
ments that provide certainty to the law.
It seems though that there is now a wave in international opinion that requires
the observance on the domestic scene of international human rights norms embo-
died in international treaties even if they may not have been transformed into
89
See Patson v Attorney General [2008] 2 BLR 66 (BHC) 71 (Kirby J).
90
For example in Eric Hammel v Madagascar Communication 155/1983 (3 April 1987), UN Doc Supp
No 40 (A/42/40) 130. This was cited by Counsel.
91
For example, reference to the case of Patel v Minister of Home Affairs [2000] 4 All SA 256 (Durban and
Coast Legal Division) which pronounced on a provision of the South African Constitution.
national law by legislation.92 Although this ‘international opinion’ usually defers to

local laws which are clear and unambiguous, it is submitted that the act of state, by
ratifying a treaty, signifies the importance it places on the norms which it proclaims
its intention to be bound by. For this reason, and to the extent that the state would
usually be aware of the content of its domestic law before ratifying a treaty, non-
compliance with treaty obligations should not generally be excused on the basis of
non-domestication of the treaty, as an obligation exists in any event on state parties
to take all necessary measures, on the domestic scene, to comply with treaty
requirements, an obligation which all states would have been familiar with at
the time of ratification. The words of Martin Horwitz Ag J in Dow93 are apposite.
In the result, Good is the only case in which a decision was made which clearly con-
flicts with the country’s international obligations.
The other developments to be discussed relate to what will be referred to as the
‘CKGR’ cases94 and the labour cases.
1 The Roy Sesana Case95

Towards the end of the mid 80’s, the Government of the Republic of Botswana
determined that the Basarwa living in the Central Kalahari Game Reserve (here-
inafter ‘CKGR’) should be relocated outside the reserve. The reasons for this, and
the justifications put forward, were contested by the Basarwa. The Government
said that it was necessary to extend the benefit of services to all its citizens including
the Basarwa, who, as the Government put it, were disadvantaged by living in an
area in which only minimal services were provided, and at great cost to the tax-
payer.96 The Government then created new settlements outside the reserve,
which were provided with water, schools, medical clinics and other essential ser-
vices. Those who agreed to relocate were compensated for vacating their old
settlements and were given land to grow vegetables and rear small stock which
they were given as part of the compensation package. Some however, plainly
refused to relocate, saying they could not sever links with their ancestral land.
On 31 January 2002, the Government terminated the provision of basic and
essential services to those who refused to relocate to the new settlements. The
Basarwa who remained in the reserve then applied to the High Court for several
orders, inter alia, that the termination by the Government of the provision of
basic and essential services, such as provision of water to the applicants, the
92
For example Developing Human Rights Jurisprudence (n 70); Kenneth Good (African Commission on Human
and Peoples’ Rights) (n 83).
93
Dow (n 45).
94
The cases arose from activities occurring in the Central Kalahari Game Reserve (CKGR) in
Botswana.
95
Sesana v Attorney General [2006] 2 BLR 633 (BHC).
96
ibid 746 (Phumaphi J).
provision of food rations to registered destitutes and orphans, provision of health-

care through mobile clinics and ambulance services and provision of transport for
children attending school outside the reserve, was unlawful and unconstitutional
and that the Government was obliged to restore such basic and essential services;
that those individuals forcibly removed by the Government from the CKGR had
unlawfully been despoiled of their possession of land and that such possession
should immediately be restored; and that the refusal to issue the Basarwa with
special game licenses or allow them access to the reserve without a permit was
unlawful and unconstitutional.97 The Court decided that the termination by
Government of the supply of basic and essential services to the residents of the
CKGR was not unconstitutional and unlawful and that the Government
was not obliged to restore those services. The services included the provision of
water.
Apart from the brief reference to Botswana’s membership to the Convention on
the Elimination of All Forms of Racial Discrimination by Dow J, the case did not
raise issues about the application of international law by domestic courts. Its rel-
evance here is as a prelude to the Mosetlhanyane case discussed below.
2 The Mosetlhanyane Case98

This case was a sequel to the Sesana case in which the High Court had decided, inter
alia, that the termination by the Government of the supply of basic and essential
services, including water, to the residents of the CKGR was not unconstitutional
and unlawful and that the Government was not obliged to restore those services.
The appellants in the Mosetlhanyane were some of the applicants in the Sesana case.
In 2009, they applied to the Government for permission to re-commission, at
their own cost, a borehole at Mothomelo in the CKGR that had been de-commis-
sioned in 2002 as part of Government’s action in terminating the supply of water to
the CKGR residents. They also requested permission, at their own expense, to sink
additional boreholes, within the CKGR, all for the purpose of abstracting water for
domestic use. The Government did not respond to their requests, whereupon they
applied to the Court. The reliefs sought included, inter alia, a declaration that the
refusal or failure by the Government to permit them to re-commission, at their own
expense, the borehole at Mothomelo in the CKGR, that formerly used to provide
them with water so that they could abstract and use water therefrom for domestic
purposes, was unlawful and unconstitutional.
It is critical to point out that there was no specific relief sought in terms that such
refusal amounted to inhuman and degrading treatment, nor that it constituted a
violation of the right to life under the Constitution. The Court of Appeal
97
The comprehensive summation of all the reliefs that the Applicants sought from the court appear in
the judgment in Sesana (n 95) 636–37 (Dibotelo J, as he then was).
98
Mosetlhanyane v The Attorney General [2011] 1 BLR 152 (BCA).
approached the matter ‘on the basis of the fundamental principle that whether a
person has been subjected to inhuman or degrading treatment involves a value
judgment.’99 The Court went further to say that ‘in the exercise of a value judg-
ment, the Court is entitled to have regard to the international consensus on the impor-
tance of access to water.’100 It then referred to two important documents viz, the
2003 United Nations Committee Report on Substantive Issues arising in the
Implementation of the International Covenant on Economic, Social and Cultural
Rights101 and the United Nations General Assembly recognition of the right to
safe and drinking water as a human right,102 which it considered sufficient to
establish such ‘consensus’. The Court concluded by holding that ‘there is a consti-
tutional requirement, based on international consensus ( … ) for Government to

refrain from inflicting degrading treatment’,103 and that in the circumstances it
had not. In the event the Court allowed the appeal.
There are two interesting findings of the Court in this case. For convenience,
those are described herein as (a) the constitutional imperative and (b) the inter-
national imperative. As regards the first, the Court found liability to refrain
from inflicting degrading treatment on the strength of a ‘constitutional require-
ment’, the basis of which is an ‘international consensus’. In the circumstances of
the case the Court appeared to be accepting that certain international values
can be used to determine whether or not fundamental rights have been violated.
It has been said by the courts that the Constitution is the only source of fundamen-
tal rights, and any violations of the Constitution must be founded on the Consti-
tution itself.104 Does this mean that ‘international consensus’ on fundamental
rights supplements provisions of the Constitution or is ‘international consensus’
an aid to construction as undomesticated treaties are? This was not determined.
To the extent that the parameters of the court’s reliance on an international con-
sensus were not spelt out, it does seem that the court’s position was significantly
influenced by international norms not apparent on the specific text of the Consti-
tution. That is the manner in which the value of treaty rules of international law is
felt on the domestic scene.
As regards to the second, the Court found international consensus on the basis
of two international instruments, neither of which is a treaty, and whose prescrip-
tions it then applied, without expressly saying so, to find violations against the
appellants. The instruments the Court relied upon fall squarely within the
99
ibid 158 (Ramodibedi JA).
100
ibid 159 (emphasis added).
101
ECOSOC Committee on Economic, Social and Cultural Rights (29th Session), ‘Substantive Issues
Arising in the Implementation of the International Covenant on Economic, Social and Cultural
Rights’ (20 January 2003) General Comment No 15 E/C 12 (2002) 11.
102
The Human Right to Water and Sanitation, UNGA Res 64/292 (28 July 2010) (adopted by 122
votes to none; 41 abstentions).
103
Mosetlhanyane (n 98) 161.
104
Kamanakao I (n 14).
definition of ‘soft law’.105 By its nature, soft law does not establish concrete legal
obligations but regard may be had to it in locating rights and responsibilities.
This is not consistent with the strict dualist position adopted in Good.
The case could thus be seen as the watershed that breaks traditional boundaries
between the binding nature of international law as against domestic law and
tending to fuse the two systems closer together. To this extent it is submitted
that this is a welcome development, especially in the field of human rights.
H WHY THE DISSONANCE?

A question that naturally arises is why the highest court in the land would see-
mingly elect to rely on international norms in one instance and not in another
in such a way as to lead to uncertainty in the law, given that one of its roles is
to provide guidance to all lower courts and all other institutions and the general
public. These matters involve Botswana’s treaty obligations and general human
rights law. It is not claimed here that answers to this important question will
easily be found. What is said here is a matter of pure conjecture which may be
contested. The pattern emerging is that, of the three cases discussed, all involved
a challenge against possible infringement of one or more provisions of the Bill of
Rights. In Dow the challenge was based on the violation of anti-discrimination
clauses as well as the right of movement. In Good, it was against infringement of
the right of movement as well as equal protection of the law, while in Mosetlhanyane
the infringement was of the protection from inhuman and degrading treatment.
From the results in these cases, it emerges that there is a consistency between
the Dow and Mosetlhanyane cases while Good stands on its own and differently
from the other two. Why the difference?
It is submitted that in principle there is no logical justification for the disparate
treatment accorded to the cases. On the facts, the pattern emerging is that while
Dow and Mosetlhanyane involved challenges by citizens of Botswana, Good involved
litigation instigated by a non-citizen. It is not too clear whether this factor would
have influenced the decision in Good. However, the Court in that case did empha-
sise the state’s right to expel an alien, at the expense of the state’s constitutional
and treaty obligations to protect the alien’s stay in the host state.106 The alien’s
right of stay in his host state, probably, and it is submitted did, influence the direc-
tion of the decision. This factor was not available for interrogation in Dow and
105
For a fuller description of the normative basis of soft law see Christine Chinkin, ‘The Challenge of
Soft Law: Development and Change in International law’ (1989) 38 International and Comparative
Law Quarterly 850; Pierre-Marie Dupuy, ‘Soft Law and the International Law of the Environment’
(1990–91) 12 Michigan Journal of International Law 420.
106
Good (n 8) 353–57 (Tebbutt JP).
Mosetlhanyane, and hence the Court had to look for norms beyond the individual’s
mere choice to be in a country other than his own for residence or other purposes.
Moving further, the issues in Dow and Mosetlhanyane concerned the constitution-
ality of the Citizenship Act and constitutionality of ‘administrative action’ by the
Director of Wildlife and National Parks respectively, while in Good the cause of
action arose from action taken by the President himself. While it has to be
stated that the focus in Dow was the Citizenship Act, a product of a process in
which the President was involved,107 seldom does the public understand such a
challenge to be against the President himself. There are numerous cases in
which the courts have struck down legislation, both primary and subordinate,
for being in conflict with the Constitution.108 It does not put the President in
the spotlight. It would thus have been easy to find against the Government in
such a case. The same goes for Mosetlhanyane as even there, an official of Govern-
ment was in the spotlight. But this was not the case in Good as it directly impugned
the wisdom of the President in the exercise of his powers. In Botswana’s consti-
tutional set up, the presidency is the most powerful institution on the land, enjoy-
ing full and untrammelled executive powers. The President has powers of
appointment of virtually all the important offices, including judges of all courts.
This was probably an overarching consideration in the final decision handed
down. This may then invite questions as to the independence of the judiciary in
Botswana, a subject which is outside the scope of this article.
I APPLICATION OF INTERNATIONAL LAW IN THE DOMESTIC SCENE POST THE DOW,

GOOD AND MOSETLHANYANE CASES
Since the enactment of the Public Service Act109 in 2008 there have been many
developments in the area of collective bargaining in the country. The Act,
without specific reference to it, incorporates several provisions embodied in
several conventions of the International Labour Organization which Botswana
has ratified, in particular the Freedom of Association and Protection of the
Right to Organize Convention (No 87)110 as well as the Right to Organize and
Collective Bargaining Convention (No 98).111 The Act allows for the first time,
107
In terms of the Constitution of the Republic of Botswana 1966, s 87(5), a law comes into existence
when the President has assented to a Bill passed by the National Assembly.
108
Examples include Petrus (n 3), Desai (n 14), and Kamanakao I (n 14) in which primary legislation was
struck down. See also Students’ Representative Council of Molepolole College of Education v The Attorney General
[1995] BLR 178 (BCA), [1995] 3 LRC 447 in which subordinate legislation was struck down as
being in conflict with the Constitution.
109
The Public Service Act 2008 (Botswana).
110
ILO Convention No 87 Concerning Freedom of Association and Protection of the Right to Organ-
ise (adopted 9 July 1948, entered into force 4 July 1950) 68 UNTS 17.
111
ILO Convention No 98 Concerning the Application of the Principles of the Right to Organise and
to Bargain Collectively (adopted 1 July 1949, entered into force 18 July 1951) 96 UNTS 257.
unionization by public servants. After the Act came into force in 2010 the
country witnessed for the first time, what was to be termed the biggest
strike ever in 2011, all at the instance of several public service unions. The
Government was not impressed with this development and dismissed several
workers in the essential services cadre, and began a process to limit the inci-
dence of a recurring strike with the same magnitude. The first move was to
attempt to widen the cadre of essential services workers through a statutory
instrument purportedly made in terms of the Trade Disputes Act. The
unions challenged the legality of the statutory instrument in the High Court
on several bases, one of them being that it was contrary to the conventions
of the ILO to which Botswana is a party. In Botswana Public Employees Union

v Minister of Labour and Home Affairs112 the High Court, in accepting that
rules embodied in unincorporated treaties were to be taken into account in
determining the legality of the statutory instrument, went beyond their mere
use as aids in interpretation and for the first time accepted their application
on the basis of a legitimate expectation. Drawing inspiration from the
Australian decision in Minister for Immigration and Ethnic Affairs v Teoh,113 the
Court said:
Applying the principles and logic found in the Teoh case, I hold that ratification or signing
of a convention is a positive statement by the executive Government of Botswana to the
world and to the people of Botswana that the executive Government and its agencies
would act in accordance with the convention it signed. I hold that the signing of a
treaty, by the executive arm of the State, on its own, constitutes sufficient foundation
for a legitimate expectation.
Consequently, I hold that the applicants had a legitimate expectation that the position of
the law, existing before the SI 57 was promulgated, would not have been changed to their
disadvantage, in the sense of taking away their members’ rights to strike, without being
afforded an opportunity to be heard.114
This did not receive any comment by the Court of Appeal in Minister of Labour
and Home Affairs v Botswana Public Employees Union.115 The Court instead pro-
nounced that the views of the ILO Committee of Experts are not binding on min-
isters in the execution of their duties and that they do not necessarily create a
legitimate expectation that they will always be followed. What was however inter-
esting in the case on appeal is the following statement:
In December 1997 Botswana ratified the two key freedom of association instruments of
the International Labour Organisation (‘the ILO’), namely Convention 87 (Freedom of
Association and Protection of the Right to Organize) and Convention 98 (The Right to
112
Botswana Public Employees Union (n 27).
113
[1995] HCA 20 (High Court of Australia).
114
ibid [273]–[274] (Dingake J).
115
Civ App No CACGB-083-12 (9 August 2012) (BCH).
Organize and Collective Bargaining). This prompted the gradual incorporation into our legislation
of some of their principles.116
This statement is quite remarkable for it seems to suggest firstly, that ratification
of a treaty has the effect of its incorporation into the domestic scene; secondly, that
ratification automatically domesticates the provisions of the treaty and makes them
applicable as if they were national legislation. This would be a radical develop-
ment if this was intended to be the effect conveyed by the statement. However,
given the context of the judgment, and the attitude taken throughout the judg-
ment, and the convictions of the particular judge on these matters117 it would
appear that the statement was made per incuriam or inadvertently. To the extent
that it was said, perhaps there is a new chapter developing regarding the value
of treaties in domestic law.
The Botswana Public Employees Union case is significant for yet another reason. It
demonstrates the importance of the parties’ submissions before the Court. This
was the first time that a party had resorted to an unincorporated treaty on the
basis of a legitimate expectation. This then offered an opportunity for the Court
to consider bases other than as a mere aid to interpretation, upon which to
apply treaty rules. It would seem therefore, at the risk of stating the obvious,
that a case is partly as good as the counsel!
A trend is developing in the Commonwealth to recognise the application of an
unincorporated treaty on the basis that it creates a legitimate expectation on the
individuals that the state would not act contrary to its obligations under the
treaty.118 In this sense the doctrine of legitimate expectations potentially confers
not only procedural rights but substantive benefits as well.119 It is a window
that the courts seem eager to use to bring home the values embodied in treaties
which have not been domesticated by legislation. The strict dualist approach is
therefore waning.
J CONCLUSION
As long as states continue to conclude treaties, the application of international law

on the domestic scene will continue to occupy the courts. As long as signatories to
an international treaty fail to incorporate it within their domestic laws, the utility of
116
ibid [26] (Kirby JP) (emphasis added).
117
IS Kirby was the Government Counsel in both Dow and Good. He was the judge in the Springbok and
Patson cases. Even in the particular case, his remarks on the Views of the ILO Committee of Experts
are revealing!
118
Cases emanating from some of the highest courts in the Commonwealth now accept the application
of this principle. See for example Teoh (n 113); Higgs v Minister of National Security [2000] 2 WLR 1368
(PC) 1375; Abacha (n 39); other authorities cited by Oppong (n 23) and the literature discussed
therein.
119
See Oppong (n 23) 316.
the values embodied in the international instruments will continue to be a question

domestic courts grapple with. In Botswana this has happened in a not so consistent
fashion, with the courts seemingly taking the classic dualist approach on the one
hand, and on the other, seemingly moving towards a more monist stance. The
views of Kirby JP in the Minister of Labour and Home Affairs case (if well intended)
do show a gradual shift. In the Mosetlhanyane case the Court found a violation of
a fundamental right, which it located on an ‘international consensus’. Extrapolat-
ing from this, and regarding treaty rules as reflecting an international consensus,
the court has now opened a window for the direct application of treaty rules in the
domestic sphere. This is welcome, for no state that has signed and or ratified a
treaty should complain when those become directly applicable in its sphere of
influence. This is certainly in line with the very purpose of becoming a member
to a treaty — a representation that the state welcomes the values protected in
the treaty and undertakes to uphold them. The best place to implement this rep-
resentation and commitment is the domestic sphere. It is in the same vein that the
window created by the legitimate expectation argument in the Botswana Public
Service Union case is laudable. States should not be allowed to hoodwink the inter-
national community through signing, ratifying and acceding to treaties, yet refuse
to accord those rights to people within their territorial confines. Treaties were
meant for a real purpose and not simply to embellish a state’s international
credentials.

Giving Effect To International Human Rights in Botswana

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Giving Effect To International Human Rights in Botswana

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This article was downloaded by: [University of Botswana Library]

On: 01 August 2015, At: 05:47

To link to this article: http://dx.doi.org/10.1080/14729342.2015.1047654

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GIVING EFFECT TO INTERNATIONAL HUMAN RIGHTS

© 2015 Faculty of Law, Oxford University

In Botswana however, it may not entirely be appropriate to say that Britain

may be party.9 The position in Britain is captured in Maclaine Watson v Depart-

Thus in Britain the doctrine of parliamentary supremacy obtains whereas the

had to conform to the overarching demands of European law as enforced by the

B THE BOTSWANA LEGAL SYSTEM

The legal system in Botswana is characterised by a ranked system of laws, all of

C TREATY MAKING POWERS

the Vienna Convention on the Law of Treaties (‘VCLT’).22 The legislature

ments have now whittled down the classical dualist approach.

D THE EXTENT OF DOMESTICATION OF TREATIES IN BOTSWANA

effect to the 1973 Convention on International Trade in Endangered Species of Wild

E APPLICATION OF INTERNATIONAL LAW IN BOTSWANA

F THE CONSTITUTIONAL IMPERATIVES OF LAW MAKING IN BOTSWANA

1 Attorney General v Dow40

The discriminatory effect of the Citizenship Act as contended by the respondent

the submission ran, because Botswana is a patrilineal and male orientated

ing structures which include enactments of the legislature, actions, pronounce-

national standards of constitutional signiﬁcance. It has been recognised by the

2 Good v Attorney General58

This statement is equally true for Botswana, as will be demonstrated below, as it

Court in Dow said:

and to indicate the extent to which international treaties inﬂuenced the

G DOW AND GOOD: A COMPARISON

ation of a statute, which is different from constitutional interpretation. While this is

national law by legislation.92 Although this ‘international opinion’ usually defers to

1 The Roy Sesana Case95

provision of food rations to registered destitutes and orphans, provision of health-

2 The Mosetlhanyane Case98

tutional requirement, based on international consensus ( … ) for Government to

H WHY THE DISSONANCE?

I APPLICATION OF INTERNATIONAL LAW IN THE DOMESTIC SCENE POST THE DOW,

of the ILO to which Botswana is a party. In Botswana Public Employees Union

As long as states continue to conclude treaties, the application of international law

the values embodied in the international instruments will continue to be a question

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