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.”
Government is currently sitting on 4 400 vacant posts that remain unfilled in the civil service. This is notwithstanding the high unemployment rate in Botswana which has been exacerbated by the recent outbreak of the deadly COVID-19 pandemic.
Just before the burst of COVID-19, official data released by Statistics Botswana in January 2020, indicate that unemployment in Botswana has increased from 17.6 percent three years ago to 20.7 percent. “Unemployment rate went up by 3.1 percentage between the two periods, from 17.6 to 20.7 percent,” statistics point out.
Leading commercial bank, First National Bank Botswana (FNBB), expects the central bank to sharpen its monetary policy knife and cut the Bank Rate twice in the last quarter of 2020.
The bank expects a 25 basis point (bps) in the beginning of the last quarter, which is next month, and another shed by the same bps in December, making a total of 50 bps cut in the last quarter. According to the bank’s researchers, the central bank is now holding on to 4.25 percent for the time being pending for more informed data on the economic climate.
An audit of the accounts and records for the supply of food rations to the institutions in the Northern Region for the financial year-ended 31 March 2019 was carried out. According to Auditor General’s report and observations, there are weaknesses and shortcomings that were somehow addressed to the Accounting Officer for comments.
Auditor General, Pulane Letebele indicated on the report that, across all depots in the region that there had been instances where food items were short for periods ranging from 1 to 7 months in the institutions for a variety of reasons, including absence of regular contracts and supplier failures. The success of this programme is dependent on regular and reliable availability of the supplies to achieve its objective, the report said.
There would be instances where food items were returned from the feeding centers to the depots for reasons of spoilage or any other cause. In these cases, instances had been noted where these returns were not supported by any documentation, which could lead to these items being lost without trace.
The report further stressed that large quantities of various food items valued at over P772 thousand from different depots were damaged by rodents, and written off.Included in the write off were 13 538 (340ml) cartons of milk valued at P75 745. In this connection, the Auditor General says it is important that the warehouses be maintained to a standard where they would not be infested by rodents and other pests.
Still in the Northern region, the report noted that there is an outstanding matter relating to the supply of stewed steak (283×3.1kg cans) to the Maun depot which was allegedly defective. The steak had been supplied by Botswana Meat Commission to the depot in November 2016.
In March 2017 part of the consignment was reported to the supplier as defective, and was to be replaced. Even as there was no agreement reached between the parties regarding replacement, in 51 October 2018 the items in question were disposed of by destruction. This disposal represented a loss as the whole consignment had been paid for, according to the report.
“In my view, the loss resulted directly from failure by the depot managers to deal with the matter immediately upon receipt of the consignment and detection of the defects. Audit inspections during visits to Selibe Phikwe, Maun, Shakawe, Ghanzi and Francistown depots had raised a number of observations on points of detail related to the maintenance of records, reconciliations of stocks and related matters, which I drew to the attention of the Accounting Officer for comments,” Letebele said in her report.
In the Southern region, a scrutiny of the records for the control of stocks of food items in the Southern Region had indicated intermittent shortages of the various items, principally Tsabana, Malutu, Sunflower Oil and Milk which was mainly due to absence of subsisting contracts for the supply of these items.
“The contract for the supply of Tsabana to all depots expired in September 2018 and was not replaced by a substantive contract. The supplier contracts for these stocks should be so managed that the expiry of one contract is immediately followed by the commencement of the next.”
Suppliers who had been contracted to supply foodstuffs had failed to do so and no timely action had been taken to redress the situation to ensure continuity of supply of the food items, the report noted.
In one case, the report highlighted that the supplier was to manufacture and supply 1 136 metric tonnes of Malutu for a 4-months period from March 2019 to June 2019, but had been unable to honour the obligation. The situation was relieved by inter-depot transfers, at additional cost in transportation and subsistence expenses.
In another case, the contract was for the supply of Sunflower Oil to Mabutsane, where the supplier had also failed to deliver. Examination of the Molepolole depot Food Issues Register had indicated a number of instances where food items consigned to the various feeding centres had been returned for a variety of reasons, including food item available; no storage space; and in other cases the whole consignments were returned, and reasons not stated.
This is an indication of lack of proper management and monitoring of the affairs of the depot, which could result in losses from frequent movements of the food items concerned.The maintenance of accounting records in the region, typically in Letlhakeng, Tsabong, and Mabutsane was less than satisfactory, according to Auditor General’s report.
In these depots a number of instances had been noted where receipts and issues had not been recorded over long periods, resulting in incorrect balances reflected in the accounting records. This is a serious weakness which could lead to or result in losses without trace or detection, and is a contravention of Supplies Regulations and Procedures, Letebele said.
Similarly, consignments of a total of 892 bags of Malutu and 3 bags of beans from Tsabong depot to different feeding centres had not been received in those centres, and are considered lost. These are also not reflected in the Statement of Losses in the Annual Statements of Accounts for the same periods.