A 2001 case in which Botswana failed to comply with the African Union Commission’s resolutions taken to fully compensate a local citizen who was wrongfully deported has come back to haunt the country. The revelation, which surfaced this week comes at a crucial time and could potentially cost Minister of International Affairs and Cooperation Pelonomi Venson Moitoi the AU Chairpersonship.
Venson-Moitoi is vying for the position for the second time, and it appears the odds are stacked against her, especially after failing to win the post with an outright majority obligation earlier this year.
Weekend Post has established that the citizen, John Kealeboga Modise was first unlawfully deported from his own country Botswana in 1978 and additionally removed on four separate occasions thereafter – under unclear explanations.
The deportation was believed to be politically motivated as the citizen was a staunch opposition Botswana National Front (BNF) activist.
Documents seen by Weekend Post suggest that Modise, who after the case dragged for long later passed on in 2013, was made to live unprotected in a foreign country (South Africa) not of his own choosing.He also stayed briefly in a no-man’s island between Botswana and the South African border.
The deportation separated him from his family and by extension affected and traumatised his four minor children Tsholofelo Modise, Elisabeth Modise, Gladys Modise and Winston Modise.
The development culminated in Modise roping in esteemed human rights attorney Duma Boko and an international legal human rights organisation based in London, Interights, which made submission to the African Commission to consider his case for violations of his rights under the African Charter on Human and Peoples’ Rights (the charter) and seek compensation.
The African Heads of State and government thereafter met in Lusaka, Zambia in July 2001, and, found multiple violations of Modise’s rights by the Republic of Botswana and requested that government take steps to remedy the violations and that it should implement the decision of the Commission.
These resolutions included confirmation and documentation of the nationality status of Modise’s children, Gladys and Elisabeth, and the issuance of nationality documents to them. The children were also said to be ‘stateless’ as a consequence of the ‘deportation’ of their father.
In addition the Commission resolved that the family be provided with “compensation of loss arising from or incidental to the violations suffered by Modise”. He claimed compensation of 5 billion pula plus 10% annual interest from the date of the Commission findings to date for pecuniary and non-pecuniary damages.
According to Modise’s lawyers at Interights, the objective in asking for compensation is not to quantify the unquantifiable. “Rather we aim hereby to propose a framework by which the state may acknowledge wrongdoing and provide a material basis to enable the victims, in this case Modise and family, to heal and, in some way, reconstruct and carry on with the remainder of their lives.”
This publication has gathered that other than granting him citizenship by descent, Botswana did not fully comply with the Commission’s decision. This is despite the principle of compensation for human rights violations being very well established in the comparative law of African countries as well as in international law.
“The Commission found the Republic of Botswana in violation of articles 3(2), 5, 12(1) and (2), 13(1) and (2), 14 and 18(1) of the African Charter on Human and Peoples’ Rights (the ‘charter’),” stated a lawyer at the Africa Programme at Interights, Judith Oder, in her communication to the Secretary of African commission on Human and Peoples’ Rights based at Gambia.
Weekend Post has established that the Commission specifically found that the denial of Modise’s right to citizenship while he rightfully deserved it was in violation of articles 3 (2), 5 and the deportation infringed his right to movement and his right to leave and return to his country contrary to article 12(1) and (2).
“The Commission also held that granting him citizenship by registration deprive him of the freedom to participate in the government of his country and constituted a denial of his right to equal access to the public services of his country contrary to article 13 (1) and (2),” the Order insisted.
It found out that, as a consequence of his deportation, the loss of his property and belongings resulted in heavy financial losses in violation of article 14 and the deportation deprived him of his family, and his family of his support in violation of article 18(1) of the African Charter.
It is understood that since the Commission’s finding, Modise and his representative have made attempts to engage with the government of Botswana to progress the implementation of the Commission’s decision.
“However these attempts have been futile. More recently, the attempt to follow up the implementation of the Commission’s decision.”
According to a family representative, who is also the late Modise’s daughter Winston Matshidiso Modise, after 20 years of all the sufferings, when they approached the Master of Court they were told that since they turned down their compensation of P100 000 from government, the case has since been closed.
“We are very disappointed by government’s clear flouting of AUC resolutions and we will determine the next course of action including meeting President Khama and seeing if we can reach an amicable solution,” the family representative/daughter, Winston Matshidiso Modise, told Weekend Post this week.
Narrating the events, she emphasised that they felt insulted by government’s gesture to suggest to compensate them with a meagre P 100 000 after all they suffered the irreparable damage for the wrongful deportation.
If meeting with the president fails, she said, other options remain open including dragging the government to court if they see fit.
This publication has gathered that in response to Modise’s previous letters a Botswana government representative, Augustine Makgonatsotlhe the then Permanent Secretary to the president and now Ombudsman, stated that the allegation that Mr.Modise’s children are stateless “is without merit and that the offer to the family of P100 000 compensation made to Mr.Modise was done on a purely ex gratia basis and that offer has now lapsed”.
He then concluded by stating that “the recommendations of the African Union Commission are not binding on the government of Botswana and that the government is not obliged to accept and implement them.”
In his letter to President Lt. Gen. Dr. Seretse Khama Ian Khama on 28 November 2008, Mr Modise had contended that his children Elisabeth and Gladys were stateless. He felt that the state’s proposal of P100 000 was not done in good faith as his representatives who were in contact with the state were not informed of this development.
At the time Modise was summoned to the office of the then Attorney General Ian Kirby (now Judge of the Court of Appeal) where the offer was made. He then rejected the offer of P100 000 as being inadequate and not proportionate to the losses and violations he suffered.
This publication’s efforts to contact Senior Private Secretary to the President at the Office of the President Brigadier George Tlhalerwa, who was said to be handling the case, drew blanks as he was said to be outside the country on official business.
On his part, government spokesperson Jeff Ramsay confirmed knowledge of the case. He however was quick to point out that “last time I heard about the case was 10 years ago and Modise’s family was in talks with the government and I am not sure whether they reached a conclusion on the matter.”
Meanwhile, it is understood that currently six candidates have put forward their names for consideration for the commanding and influential position in which the elections are scheduled at the organization's next summit in January 2017.
Botswana, with signature rooftop diplomacy, still faces resistance from other African counterparts of her bold positions on various matters in the international sphere.
According to information from the UK based Interights “the government of Botswana’s disregard of the Commission’s decision, and its consequence failure to address the violations against Modise, conflict with Botswana’s obligations under international human rights law.”
The London based human rights NGO continues: “The government of Botswana ratified the African Charter without reservations. It is therefore obliged to adopt measures to give effect to the rights provided in the treaty and to appropriately address any violations that have occurred by providing victims of such violations with sufficient redress.”
Botswana Police Service (BPS) has indicated concern about the ongoing trend where the general public falls victim to criminals purporting to be police officers.
According to BPS Assistant Commissioner, Dipheko Motube, the criminals target individuals at shopping malls and Automated Teller Machines (ATMs) where upon approaching the unsuspecting individual the criminals would pretend to have picked a substantial amount of money and they would make a proposal to the victims that the money is counted and shared in an isolated place.
“On the way, as they stop at the isolated place, they would start to count and sharing of the money, a criminal syndicate claiming to be Criminal Investigation Department (CID) officer investigating a case of stolen money will approach them,” said Motube in a statement.
The Commissioner indicated that the fake police officers would instruct the victims to hand over all the cash they have in their possession, including bank cards and Personal Identification Number (PIN), the perpetrators would then proceed to withdraw money from the victim’s bank account.
Motube also revealed that they are also investigating a case in which a 69 year old Motswana woman from Molepolole- who is a victim of the scam- lost over P62 000 last week Friday to the said perpetrators.
“The Criminal syndicate introduced themselves as CID officers investigating a case of robbery where a man accompanying the woman was the suspect.’’
They subsequently went to the woman’s place and took cash amounting to over P12 000 and further swindled amount of P50 000 from the woman’s bank account under the pretext of the further investigations.
In addition, Motube said they are currently investigating the matter and therefore warned the public to be vigilant of such characters and further reminds the public that no police officer would ask for bank cards and PINs during the investigations.
Botswana Congress Party (BCP) leadership walked out of Umbrella for Democratic Change (UDC) National Executive Committee (NEC) meeting this week on account of being targeted by other cooperating partners.
UDC meet for the first time since 2020 after previous futile attempts, but the meeting turned into a circus after other members of the executive pushed for BCP to explain its role in media statements that disparate either UDC and/or contracting parties.
The Director General of the Directorate on Corruption and Economic Crimes (DCEC), Tymon Katlholo’s spirited fight against the contentious transfers of his management team has forced the Office of the President to rescind the controversial decision. However, some insiders suggest that the reversal of the transfers may have left some interested parties with bruised egos and nursing red wounds.
The transfers were seen by observers as a badly calculated move to emasculate the DCEC which is seen as defiant against certain objectionable objectives by certain law enforcement agencies – who are proven decisionists with very little regard for the law and principle.