This record is a partial extract of the original cable. The full text of the original cable is not available.

281305Z Feb 05

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FM AMEMBASSY GABORONE
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INFO SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
HQ USEUCOM VAIHINGEN GE
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UNCLAS  GABORONE 000294 
 
SIPDIS 
 
 
SENSITIVE 
 
AF/S FOR DIFFILY 
 
E.O. 12958: N/A 
TAGS: PHUM PGOV BC
SUBJECT: COURT RULES IN FAVOR OF CRITICAL ACADEMIC 
 
REF GABORONE 286 
 
¶1. (SBU) Summary:  On February 28, Botswana's High Court 
ruled in favor of embattled academic and critic of the GOB 
Prof. Kenneth Good by rejecting the Attorney General's 
arguments that the court had no authority to issue an 
interdict against the state.  Judge Sapire issued an order 
granting Good temporary relief by barring the Government 
from enforcing its deportation order and giving Good 
approximately four weeks to initiate proceedings for 
substantive relief (i.e. to file a case alleging that the 
deportation order was unlawful or unconstitutional).  This 
ruling underscores the independence of the judiciary in 
Botswana and opens the executive to the prospect of new 
limits on its far-reaching powers, thereby challenging a 
pillar of Botswana's political culture.  End Summary. 
 
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COURT TO HEAR GOOD'S CASE AGAINST GOB 
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¶2. (U) On February 28, Botswana's High Court ruled against 
the preliminary arguments of the Attorney General's Chamber 
that the court acted outside its authority by issuing on 
February 19 an interdict against the state's order of 
deportation against Professor Kenneth Good of February 18. 
Judge Sapire cited Section 18 of the Botswana Constitution, 
which enshrines the right of an individual to apply to the 
High Court if one's constitutional rights, including the 
freedom of expression, allegedly have been violated. 
Section 18 also grants the High Court the authority to make 
such orders at it deems appropriate in order to secure the 
enforcement of an individual's constitutional rights. 
Consequently, the Judge granted Good interim relief by 
barring the Government from deporting him while his order 
remained in effect to enable Good to remain in Botswana and 
challenge the deportation order. 
 
¶3. (U) According to Judge Sapire's order, Good's attorneys 
have until March 30 to initiate proceedings seeking 
substantive relief from the Government's deportation order 
(i.e. file a case alleging that the deportation order was 
unlawful or unconstitutional).  As required by law, Good's 
attorneys notified the Attorney General on February 21 of 
their intent to institute such proceedings.  If the Attorney 
General's Chamber waives the waiting period, Good's 
attorneys must institute proceedings within one week of the 
date of that waiver.  Failing this, the provisions of the 
court order will expire and the state will be free to deport 
Good. 
 
¶4. (SBU) Joao Salbany, a member of Good's legal team, told 
PolOff that he and his colleagues plan to utilize the full 
time allotted to them under the court order before 
instituting proceedings.  Salbany suspected that the 
Attorney General's Chamber might attempt to waive the 
waiting period in order to speed the case along.  Good's 
attorneys would challenge the Government's right to do this 
but would be prepared to commence early in any event, he 
said. 
 
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LARGE CROWD SUPPORTS GOOD 
------------------------- 
 
¶5. (U) A large crowd again turned out in support of 
Professor Good to hear the judge's ruling.  In addition to 
students and faculty from University of Botswana, local and 
some international press were present, including journalists 
from South Africa, the Netherlands and Australia.  A 
triumphant Good and his attorneys lingered outside the 
courtroom to express confidence in their case. 
 
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UNIVERSITY RESISTED PRESSURE TO FIRE GOOD? 
------------------------------------------ 
 
¶6. (SBU) According to a colleague of Prof. Good's from the 
University of Botswana's Department of Government and Public 
Administration, the GOB had pressured the university not to 
renew Good's contract when it was up for renewal last year. 
Our interlocutor said that the University had rebuffed this 
infringement on its independence and renewed Good's 
contract.  Even if this as yet uncorroborated accusation is 
not accurate, Good's unpopularity with the ruling party has 
been beyond doubt for years.  The University's decision to 
renew his contract in spite of this illustrates its 
independence from the Government. 
 
--------------------------------------------- --- 
RULING TO CHALLENGE BOTSWANA'S POLITICAL CULTURE 
--------------------------------------------- --- 
 
¶7. (SBU) A senior official of the ruling Botswana Democratic 
Party told PolOff and Pol Assistant on February 24 that many 
of his party colleagues feared that a ruling in Good's favor 
would have dangerous repercussions for governance in 
Botswana.  They were concerned, he said, that if the court 
could suspend the enforcement of a state order, the 
government would hesitate to make any decision worrying 
whether it would be overruled by the judiciary.  This 
comment demonstrates the degree to which the power of the 
executive has become entrenched in Botswana, so much so that 
the idea of accountability to the people and the 
constitution through the courts seems an alien notion. 
 
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COMMENT 
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¶8. (SBU) Today's ruling confirms that Botswana enjoys an 
independent judiciary capable of protecting an individual's 
constitutional and democratic rights.  Likewise, Good's 
continued employment by the University of Botswana despite 
his trenchant criticism of the Government signifies that the 
Government's powers are not unlimited.  Nonetheless, the 
executive enjoys considerable powers relative to its 
citizens and to the other branches of government.  Like the 
controversy surrounding the location of a second university, 
this legal dispute will advance public discussion of 
presidential powers.  It has the potential to rein in the 
disproportionate- to the other branches of government-- 
exercise of executive power. 
HUGGINS 
 
 
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