THE JUDICIAL ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS …
ANCL-RADC ANNUAL CONFERENCE – ‘The Internationalisation of Constitutional Law’ Rabat, Morocco, 2011-01-20
WORKING PAPER
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THE JUDICIAL ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS IN BOTSWANA AND THE CASE OF BASARWA IN THE CENTRAL KALAHARI GAME RESERVE (CKGR)
BONOLO RAMADI DINOKOPILA
Doctoral Candidate, Centre for Human Rights, University of Pretoria, South Africa & Lecturer, Department of Law, University of Botswana, Gaborone.
Abstract
Although the government of Botswana officially considers all of the country’s ethnic groups to be equally “indigenous”, the earliest inhabitants of the country, the Basarwa, have from time immemorial proven that theirs was a special situation which needed special considerations and policies specifically tailored to meet their needs. Of all the vulnerable groups in Botswana, the Basarwa have been at most, economically and politically marginalised.[1] Their isolation, limited access to education, ignorance of civil rights and lack of political representation continue to hinder their progress.[2] The protection of their rights- in particular their socio-economic rights- remain elusive as the government’s policies and decisions are not cognisant of their special situation.
In is that context, this paper will discuss the institutional, legal and Constitutional framework of the promotion, protection and fulfilment of socio-economic rights in Botswana. The paper will highlight prospects and challenges for the judicial enforcement of socio-economic rights in Botswana and will tackle the issue of the judicial enforcement of socio-economic rights in the absence of Directive Principles of State Policy within the country’s constitution and in jurisdictions where such rights are not constitutionally protected.
1. Introduction
The judicial enforcement of economic, social and cultural rights (socio-economic rights) in Africa has been fraught to the largest extent with a web of complex issues and as a result the protection and enforcement of these rights remain elusive in many countries. This is due to a large number of factors, chief among them being the non-entrenchment of these rights in national constitutions. When one makes remarks about socio-economic rights in Africa, South Africa stands out as the most progressive country as regards the judicial enforcement of these rights. Perhaps this is due to their egalitarian and progressive constitution. However, the South African experience has also not been without challenges. Uganda follows suit with a number of socio-economic rights included in the 1995 Constitution. These are countries which have been described by Aolain and McKeever as a ‘substantive model of enforcement’ which affords direct and substantive protection of socio-economic rights.[3]
Other African states, like Malawi, Ghana Namibia and Nigeria have socio-economic rights expressed as directive principles of state policy which principles are supposed to guide the state in the adoption of policies and possibly the courts in the interpretation of the Government obligations in relation to those rights. Such an approach has been described by Aolain and McKeever as amounting to ‘minimal enforcement’ of socio-economic rights- another level of judicial enforcement of socio-economic rights.[4]
Then there are other African countries which have neither entrenched socio-economic rights in their constitutions nor expressed them as directive principles of state policy. Such an anomaly has made the judicial enforcement of socio-economic rights in those countries almost impossible. Botswana falls into this last category of countries as the 1966 Constitution contains an extensive list of civil and political rights with no mention of socio-economic rights.
Against the preceding background and after an analysis of the status of such rights in Botswana- also in the the context of Botswana’s obligations under international law- this paper will look at the manner in which the Botswana courts have and may deal with socio-economic rights. The paper then takes a look at the manner in which the Botswana High Court dealt with the issue of socio-economic rights when the opportunity presented itself in the Sesana case. This is followed by a reflection of the case viz the African Charter on Human and Peoples’ Rights. A case will then be made for the courts to interpret what has come to be known as cross cutting rights to include socio-economic rights as discernible from the approach taken by courts in other jurisdictions. At the close of the discussion will be a summation of what the role of the Botswana Courts could be in the judicial enforcement of socio-economic rights.
2. An overview of the legal and institutional protection of human rights in Botswana
It is worth noting that since Independence in 1966, Botswana has been hailed as a shining example of democracy in Africa where rights and freedoms of individuals relating to race, colour or creed, tribe, place of origin, national or ethnic identity, social origin, political opinion, sex, language, and religion are guaranteed under the Constitution, respected and fulfilled by the Government. It has been consistently alleged that Botswana has maintained a good human rights protection record,[5] a myth largely perpetuated by scholars from Botswana. This is despite the increasing dismissal of Botswana’s Constitution as offering insufficient human rights protection,[6] unimpressive record as regards ratification and reporting on international treaties and conventions, unimpressive record as regards the domestication of ratified instruments[7] as well as the absence of effective human rights protection monitoring bodies.[8]
Be that as it may, Botswana’s Constitution makes provision- under its Chapter II- for the protection of first generation rights. The more than 40 years old Constitution is largely influenced by the European Convention and perhaps remains the only Constitution that has retained its independence bill of rights. Sections 3- 15 of the Constitution therefore provides for most of the civil and political rights. Section 3 of the Constitution is the umbrella provision of the rights embodied in chapter II of the Constitution.[9] It provides that every person is entitled to the rights and freedoms under the Constitution without any discrimination on the grounds listed under the Constitution.[10] Specific rights are provided for under sections 4 to 15 of the Constitution. The rights under the chapter include the right to life,[11] the right to personal liberty,[12] protection from slavery and forced labour,[13] protection from torture and other cruel, inhuman, or degrading treatment or punishment,[14] freedom of expression,[15] protection from discrimination,[16] the right to privacy[17] and protection from deprivation of property,[18] freedom of conscience[19] as well as protection of the law.[20] The effective promotion, protection and fulfilment of these rights has been subjected to intense scrutiny over the years by scholars and courts alike, with scholarly works focusing on the judicial enforcement of these rights by the courts.
Botswana is party to several international and regional human rights instruments. These include the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the African Charter on Human and Peoples’ Rights (ACHPR). The constitution of Botswana is silent on the status of such international instruments. However, due to the fact that Botswana is a dualist state, treaty provisions does not become part of the laws of the Botswana unless specifically incorporated into the laws of Botswana through an Act of parliament.[21] As such treaties creating rights and obligations ratified by Botswana do not create rights and obligations enforceable by the courts immediately upon ratification. However, section 24 of the Interpretation Act provides that such treaties may only be used in the interpretation of the law where the wording of the statute is ambiguous.[22] Customary international law is applicable in Botswana in so far as it is not inconsistent with any piece of domestic legislation.[23]
The Botswana High Court is constitutionally mandated to protect the rights entrenched under the Constitution.[24] Hence, any person who alleges that any provision of sections 2 to 16 of the Constitution has been, is being or is likely to be contravened in relation to him may apply to the High Court for redress.[25] The High Court thus have original jurisdiction in respect of human rights matters brought under the section 18 of the Constitution.[26] It may make such orders, issue writs and give direction it considers necessary for the purpose of enforcing and securing the enforcement the fundamental rights under the Constitution.[27]
Botswana has not established an independent national human rights institution in terms of the Principles relating to the establishment of National human rights institutions (Paris Principles).[28] It has the office of the Ombudsman and the Directorate on Corruption and Economic Crime (DCEC).[29] The few NGOs that actually try to do work on human rights, understandably places more emphasis on the rights contained in the Constitution and more often that not are focused on issues relating HIV/AIDS. This is mainly due to the fact that Botswana is one the countries heavily affected by the pandemic. There is, as a result, less focus on socio-economic rights issues by the civil society in Botswana.
3. Socio-economic rights at the international and regional levels
Socio-economic rights have been given recognition under the 1948 Universal Declaration of Human Rights (UDHR). Though non-binding in nature, the declaration initiated the protection and promotion of socio-economic rights by listing a number of these rights. The UDHR was later followed by the International Covenant on Economic, Social and Cultural Rights (ICESCR). Socio-economic rights are also protected under a number of thematic international instruments, such as CEDAW, the Convention on the Rights of Persons Living with Disabilities (CPLWD) as well as the Convention on the Rights of the Child (CRC). They are also protected under various regional human rights treaties such as the African Charter, the African Charter on the Rights and Welfare of the Child (ACRWC) and the Protocol to the African Charter on the Rights of Women in Africa (African Women’s Protocol).
The principal body charged with the global implementation of ESCRs is the Committee on Economic, Social and Cultural Rights (the ESCRs Committee). It is primarily mandated to supervise the compliance- through state reporting in accordance with the reporting guidelines- by member states with their obligations under the ICSECR. At present the ESCRs Committee does not have a complaints procedure. The Optional protocol on the ICESCR which was unanimously adopted by the UN General Assembly on the 10 December 2008[30] is soon to be opened for signature and once it enters into force, it will form part of the international legal framework for the protection and promotion of socio-economic rights. The Optional Protocol envisions a system of individual and group complaints through which compliance of states parties with the provisions of the ICESCR will be monitored.[31] It has been hailed by some as having the potential effect of placing socio-economic rights at the same level with other international instruments and strengthening the promotion and protection of ESCRs worldwide in the process.[32] It has, nonetheless, equally received criticism from some quarters as being nothing more than an attempt to ‘mimic’ the structures of the ICCPR.[33]
The protection and promotion of ESCRs in Africa received tremendous support from the adoption of the African Charter. The African Charter makes no distinction as to the type of rights, makes no indication as to which of the rights is of lesser importance than the other and theoretically made no distinction as to their implementation.[34] Thus the African Charter did not create any hierarchy of rights explaining why the Charter is seen as a leap beyond ideological cleavages and disputes that lead to the subjugation of ESCRs as of lesser value to civil and political rights.[35] It protects a wide range of ESCRs[36] and is supplemented by thematic regional instruments such as the African Women’s Protocol[37] and the ACRWC.[38] ESCRs are protected under articles 15 to 24 of the African Charter. They include the right to health,[39] the right to education,[40] the right to self-determination,[41] and the right to economic social and cultural development,[42] as well as the right to a satisfactory and stable environment.[43] These rights are free of claw back clauses[44]as they are unequivocally justiciable like all other rights enshrined under the charter[45] and states are enjoined to give immediate implementation of these rights.[46] The normative content of ESCRs enshrined under the African Charter has been laid out in several decisions of the African Commission on Human and Peoples’ Rights (African Commission).[47]
The debate as to the justiciability of socio-economic rights continues. Many views- as regards their justiciability or non justiciability thereof- have been put forward by many scholars, with the debate dating back to the time when the two most prominent covenants on rights were adopted. The argument to a larger extent is centred on the whether socio-economic rights are rights ‘properly so called’ under international law or they are just mere privileges extended to individuals by the state subject to the availability of resources.[48] This, according to Olademeji, is attributable to the classification of these rights as ‘positive rights’ or ‘second generation rights’ requiring state action for their fulfilment and the classification of civil and political rights as ‘negative rights’ or ‘first generation rights’ requiring a state to avoid interfering with their enjoyment by the individual.[49] This classification, Olademeji rightly asserts, has only managed to send the wrong signals as regards the hierarchical nature of rights.[50]
According to Mbazira, the objection to the judicial enforcement of ESCRs has taken two dimensions, namely; the legitimacy dimension and the institutional competence dimension.[51] The legitimacy dimension, he asserts, ‘is deeply rooted on the traditional conception of the philosophical understanding of human rights, with the issue being whether or not it will be legitimate to confer constitutional protection on these rights.’[52] The institutional competence dimension, according to him, does not relate to the nature of ESCRs as rights but relates to which institutions are appropriate for the enforcement of these rights.[53] As a result there is a widely held view that ESCRs cannot be justiciable because they are, unlike civil and political rights, not suited to judicial enforcement because the judiciary lacks the democratic legitimacy to be involved in the allocation of social and economic resources.[54] Further, that their protection falls within the purview of the mandate of the Legislature and the executive arms of government and that affording them constitutional protection has the effect of transferring power from these two branches of government to the judiciary.[55] Proponents of justiciability of ESCRs have continuously held that a blanket dismissal of such rights as rights per se is totally misguided since socio-economic rights and civil and political rights are interdependent. Further that these rights, like civil and political rights, also engender negative and also that the implementation of civil and political rights like ESCRs requires resources.[56]
Understandably, the justiciability of ESCRs debate has received sufficient attention from scholars and as such does not merit detailed attention in this paper.[57] Suffice it to point out that there is growing acknowledgement of the indivisibility and interdependence of rights. This position dates back to the position adopted by the world leaders at the 1993 Second World Conference on Human Rights in Vienna whereat human rights were described as ‘universal, indivisible and interdependent and interrelated.’[58]
4. The status Socio- Economic rights in Botswana
As aforementioned, Botswana is party and signatory to several international instruments. Botswana is party or signatory to the ICCPR, the African Charter, CEDAW, CRC, the ACRWC as well as the CPLWD. Botswana is neither party nor signatory to the ICESCR. The Constitution of Botswana also does not make any reference to ESCRs and as such socio-economic rights are not given the same protection as civil and political rights under the Constitution. It should be noted further that, Botswana is a dualist state and treaty obligations do not form part of the laws of the state unless expressly incorporated through an Act of parliament.
Due to the dualist nature of Botswana’s legal system, it is difficult to enforce rights under various international instruments that Botswana is a party to. However, as aforementioned, the African Charter does not make any distinction between rights contained therein and as such Botswana is bound to immediately protect, promote and fulfil all rights provided for under the African Charter. The dualist/monist debate aside momentarily, Botswana is therefore under an obligation- under the African Charter- to provide its citizens with the basic amenities of life such as water, health facilities, education and shelter. This is regardless of the fact that ESCRs do not enjoy constitutional protection or are not stated as directive principles of state policy in the Constitution. By failing to give constitutional protection to ESCRs, Botswana is in violation of its obligations under the African Charter, in particular article 1 of the Charter, which enjoins member states to adopt legislative or other measures to give effect to the rights under the Charter.
Even though there has not been many cases brought before the Botswana courts to enforce ESCRs, the situation in Botswana is intriguing in at least two major respects.
The first being that Botswana does not have constitutionally protected socio-economic rights hence the rights on the face of it cannot be enforced under section 18 of the Constitution and they are not listed as Directive Principles of State Policy (DPSPs) as is the case in some jurisdictions. Secondly, Botswana has a progressive economy and as such has managed to provide her citizens with free education, health, welfare schemes as well as in some cases free housing. Several questions immediately arise after an acknowledgement of what appears to be a better situation as compared to other African states. Why is Botswana not inclined to amending its Constitution to include ESCRs despite its good economic background? Secondly, as regards the judicial enforcement of ESCRs, why should the Botswana Courts follow the Indian expansive interpretation of the right to life? These two issues- as well as the discussion on whether the exclusion of ESCRs as DPSPs in Botswana’s Constitution is of relevance to the judicial enforcement of socio-economic rights form the basis of the following discussion.
1. The judicial enforcement of Socio- Economic rights in Botswana and the case of Basarwa in the Central Kalahari Game Reserve (CKGR).
Minority ethnic groups such as the indigenous Basarwa continue to be marginalised by the current policies adopted by the Government. Although the government officially considers all of the country’s ethnic groups to be equally “indigenous”,[59] the earliest inhabitants of the country, the Basarwa, have from time immemorial proven that theirs was a special situation which needed special considerations and policies specifically tailored to meet their needs. Of all the vulnerable groups in Botswana, the Basarwa have been at most, economically and politically marginalised.[60] Their isolation, limited access to education, ignorance of civil rights and lack of political representation hinder their progress.[61] As will be shown later in this paper, the protection of their rights- in particular their socio-economic rights- remain elusive as the government’s policies and decisions are not cognisant of their special situation.
The severity of this detrimental situation is underscored by two decisions of the Botswana High Court in Sesana & Others v The Attorney General[62] and Matsipane Mosetlhanyane & Others v The Attorney General of Botswana.[63] As will be shown later in the paper, the two cases not only highlighted the challenges faced by the Basarwa but also clarified the position of ESCRs in Botswana.
1. Sesana & Others v The Attorney General Case: an overview
The case arose out of an application on notice of motion lodged on 19 February 2002 by Roy Sesana and Keiwa Setlhobogwa, on their own behalf and on behalf of 241 other applicants.[64] They sought several orders, among them an order to the effect that the termination by the government of the provision of certain basic and essential services in the Central Kalahari Game Reserve (CKGR) was unlawful and unconstitutional; and that the forcible removal of them from their settlements in the CKGR, after termination of the provision of the basic and essential services amounted to unlawful despoliation or dispossession of their land.[65] The Applicants having found no protection under the provisions of the Constitution argued that, they had a legitimate expectation that they would be consulted by the Government before the services were terminated.[66]
This anomaly in my opinion defeats the argument that since Botswana has gone out to provide most of the essential human needs such as basic health care and education, there is no need to provide for such rights in the Constitution. At present, those essential needs and basic services can be easily taken away by the Government as illustrated by the Sesana case. Further, their absence from the Constitution means that once a person or a community is marginalised and the government is not providing for them as it does to other communities then they cannot approach the Court to compel the government to roll out such services.
On the lawfulness of the termination of services and the stoppage of the issuance of special game licences, the defence by the Government was essentially that it was justified in terminating the services as it had taken a position a long time ago that they were temporary and had repeatedly consulted with the Applicants on their eventual termination. After years of ‘consultations’ the Government finally, in August 2001, communicated with the Applicants its decision to terminate services and gave them six months before it executed its decision.[67] The reasons given for the discontinuance of these services was that the services were too expensive to maintain on a long-term basis. Further that human residence within the CKGR posed a disturbance to the wildlife and was contradictory to the policy of total preservation of wildlife. The Government argued therefore that it was under no obligation, to restore the services as was requested by the Applicants.
The basic and essential services forming the crux of the request of the said order were the provision of drinking water on weekly basis, the maintenance of the supply of borehole water, the provision of rations to registered destitute, the provision of rations for registered orphans, the provision of transport for the Applicants’ children to and from school and the provision of healthcare to the Applicants through mobile clinics and ambulance services.
The decision of the High Court on the termination of services in the CKGR by the government was to the effect that the termination of such basic and essential services by the Government was neither unlawful nor unconstitutional. Hence, the government was under no obligation to restore the provision of such services.[68] The decision of the High Court was largely based on the principles of legitimate expectation under administrative law. On the contrary, Justice Unity Dow in her minority judgment concluded that services terminated were indeed basic and essential for the survival of the Applicants. Hence, the termination endangered life and was an infringement of the constitutionally guaranteed right to life.[69]
The majority decision has far reaching consequences as it is authority for the position in Botswana that indeed socio-economic rights are not protected under the Constitution and that the courts may not purposively interpret the constitution to accommodate them. Further that, even if the litigants in the Sesana were to go back to the CKGR – as eventually ordered by the Court as the Court came to the conclusion that they were forcibly removed from the CKGR- they are faced with starvation and thirst since the government is under no obligation to provide them with social amenities such as food, healthcare and water.
It is this decision of the High Court- which is in agreement with the Government’s position- that is at variance with Botswana’s international obligations. It matters little whether Botswana is not party to or signatory to the ICESCR. This is so because, as aforementioned the African Charter does not make any distinction between rights. Botswana as a member state party was therefore in violation of several provisions of the African Charter.
2. Matsipane Mosetlhanyane & Others v The Attorney General Case: the sequel
4.1.2.1 The Applicants’ case
This recent decision of the High Court is in a sense a sequel to the Sesana case. The Applicants in this case sought, among others, an order declaring that the refusal or failure by the Government to permit them to re-commission, at their own expense, the borehole in the CKGR was unlawful and unconstitutional.[70] Further that the refusal by the Government to confirm that on the payment of the specified fees it will issue permits under the Regulation of National Parks and Game Reserve Regulations 20009 allowing any reputable contractors appointed by the Applicants to enter the CKGR to re-commission the borehole for domestic use was unlawful and unconstitutional.[71] The Applicants also sought an order declaring that the refusal by the Government to confirm that the Applicants had the right to sink a borehole at their own expense and use water therefrom for domestic purposes in accordance with section 6 of the Water Act was unlawful and unconstitutional.[72]
His Lordship Justice Walia in Mosetlhanyane case highlighted that he aligned himself with the majority decision in the Sesana Case - in particular that the termination by the Government of basic and essential services within the CKGR- was neither unlawful nor unconstitutional and that the Government was under no obligation to restore the provision of such services to the Applicants in the CKGR.[73]
The gravamen of the litigation in the Mosetlhanyane case is that the applicants suffered a great deal of shortages of water during the dry season as the melons and other succulents do not provide sufficient water. Further that even in the rainy season, it did not rain that often in the Reserve. It was the Applicants argument that the alternative source of water was highly inconvenient as it was almost 40 kilometres from where the Applicants stayed. To that end, the Applicants contended that the trip to fetch water was exhausting for even though water can be transported into the Reserve from the outside, it could only be over “harsh, desolate, rugged and difficult terrain” likely to result in “frequent breakdowns”.[74] The Applicants also argued that that case was about the Applicants’ fundamental right to have access to water and the right to human dignity. The Applicants further argued that Access to a reliable source of water will enormously improve both the physical and mental state of the Applicants and particularly of the young, the elderly and the infirm – all of whom are citizens of Botswana whose well-being must be of concern to the Government.[75]
The Applicants further argued that the government’s refusal (tacit or express) to permit the Applicants to use the borehole indicate a pattern of behaviour in which the Government has shown itself ready to use any means at its disposal to prevent them from exercising their legal and constitutional right to live in the Reserve.[76] This was in the light of the fact that the Applicants were willing and able – without taxing Government resources – to recommission the borehole.[77] It was also argued that the Government’s refusal to permit the Applicants to use the existing Borehole violated their constitutional right not to be subjected to inhuman or degrading treatment.[78] With respect to this argument the Applicants relied on section 7 of the Constitution which provides that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment.” The Applicants argued that when melons are scarce they spend a lot of their time looking for roots from which to extract a few drops of water, and that their lack of water makes them prone to sickness. They can suffer from constipation, headaches or dizzy spells. They lack energy and spend many hours in their huts. They sleep badly. Mothers lack the milk to feed their children. Often they do not have water to clean themselves.[79] Perhaps in their attempt to show how inhuman and degrading the refusal by the government to allow them to sink the borehole was, the Applicants pointed out that;
“[t]he Government takes active steps to ensure that animals in the Reserve are given the water they require at the same time as [sic] it refuses to allow the Applicants to make their own arrangements to the same end. They are expected to grub for roots or beg from passing tourists while animals use watering holes. This is to lower in estimation or dishonour the Applicants, both in their own eyes and in the eyes or others. Their need for water is regarded as less deserving of respect than that of wild animals. This constitutes degrading treatment because the Applicants are thereby humiliated or debased. No respect is shown for their human dignity.[80]
To support this assertion reference was made by the Applicants to several international instruments[81] as well as several foreign decisions[82] that sought to elaborate on the normative content of this right.
It is worth noting that central to the Applicants’ case were the provisions of the Water Act[83], in particular sections 6 to 9 of the Act. The Applicants argued that the totality of the sections – with greater weight placed on section 6 of the Water Act - conferred upon them the unfettered right to sink one or more new boreholes in the CKGR. and to abstract and use water therefrom for domestic purposes without having to obtain water rights from the Water Apportionments Board (“the Board”)[84]
4.1.2.2 The Respondent’s case
The Respondent’s case was terse. The inconvenience caused by the distance between the settlements and the nearest water source outside the CKGR was caused by the Applicants’ choice “to live that kind of life since they have chosen to stay where there is no water...”[85] and that “...whatever hardships the applicants are likely to face in the exercise of their choice such hardships are of the applicants own making.”[86] The Respondent’s counsel further submitted that the Government is neither indifferent nor callous for in furtherance of its policies, made water, clinics, schools and other essential services available outside the park and that nothing prevented the Applicants from utilising theses facilities and services.[87] It was also argued that “that those resources are provided outside the CKGR enables the Government to meet both its obligations to respect the rights of its people, while still realising its conservation objectives.”[88]
All in all, the Respondent’s case remained that the Applicants have become victims of their own decisions by deciding to settle and inconveniently long distance from the services and facilities provided by the Government.[89]
The Respondent further contended – in their founding papers - that section 6 of the Water Act does not give the Applicants absolute right to be given water rights since the granting of water rights under section 6 is subject to the provisions of the Water Act itself and any other written law. However, during final submissions in Court, Counsel for the Respondent concurred with the Applicant’s Counsel that in terms of section 6 of the Water Act, any owner or occupier of land is entitled, without holding a water right, to sink boreholes or otherwise abstract water.[90]
4.1.2.1 The Court’s Response
After restating the arguments raised by the parties, his lordship Justice Walia came to the conclusion that it was indeed easy to resolve the applicants’ argument that the Government’s refusal to permit the applicants to use the existing borehole violates their constitutional right not to be subjected to inhuman or degrading treatment. His lordship came to this conclusion on the basis that the aforesaid argument did not form part of the case that the Respondent was required to meet. This was because – the learned judge highlighted - the orders sought in the notice of motion made no mention whatsoever of the Government being in violation of the applicant’s constitutional rights relating to the protection from inhuman treatment , enshrined in section 7 of the Constitution of Botswana. To that end the Respondent was not given a proper opportunity to respond to the issue of inhuman and degrading treatment. Citing an earlier decision by Masuku J,[91] he came to the conclusion that it was undesirable pleading practice to spring on one’s opponent in motion proceedings, at the stage of submissions, what was not properly canvassed in the notice of motion and founding affidavits. Hence, in the learned judge’s view, the issue of inhuman and degrading treatment was an afterthought and bound by their pleadings they may not seek to establish what has not been pleaded.
Further, it was pointed out by the Court that there was another compelling reason for the argument on inhuman and degrading treatment to fail. This - according to the Court - was because the applicants in their arguments ignored altogether, their unequivocal acknowledgement that the Government is under no obligation to provide any essential service to them.[92] Such an acknowledgement on the part of the Applicants meant – the Court held – that the Government has no obligation to provide an essential service, a fortiori, is under no obligation to facilitate any such service.
The Court pointed that it was indeed sympathetic to the Respondents’ argument that having chosen to settle at an uncomfortably long distant location, they have brought upon themselves. The learned judge went on to point out that since the Applicants enjoy the right to reside in the CKGR, their right to reside was not confined to a specified area. Hence, there was no reason why they cannot opt to reside in an area closer to where water and other services are available. The Court then proceeded to duly acknowledge the literature and authorities cited in support of the right to water but highlighted that sane would have had validity if there was an obligation on the part of the Government to provide water where the applicants chose to stay in the CKGR.[93] The learned judge concluded that the government is under no such obligation and that it has met its obligations as regards accessibility to water by providing adequate supplies outside the CKGR.[94] The inconvenience suffered by the applicants in accessing that supply cannot, in the Court’s view, be described as inhuman or degrading treatment. [95]
Having concluded as such on the issue of inhuman and degrading treatment, the learned judge then went on to discuss the issue of water rights in Botswana under the Water Act. After considering the various provisions of the Water Act, the Court came to the conclusion that the provisions of section 9 and 6 were clearly mutually contradictory.[96] According to the findings of the Court if section 6 of the Act is construed as contended by the Applicants, section 9 becomes superfluous.[97] According to the Court, the interpretation of section 6 by the Applicants was clearly inconsistent with the requirement of authorization provided for in section 9 of the same Act.[98] It is on that basis that the Court rejected both parties’ lawyers’ submissions that the Applicants had unfettered right to abstract water. The Court then resolved to apply the rules of interpretation to address the inconsistency between the two sections. In the end, the ‘obvious’ result was that section 9 prevailed. Hence, in the Court’s opinion, any person wishing to abstract water may do so only by authorization as provided for in section 9 as read with section 15 of the Water Act.[99]
4.3 Sesana & Mosetlhanyane cases: an opportunity missed?
As aforementioned, the High Court in the Sesana case outrightly held that the stoppage of essential services to the inhabitants of the CKGR by the government in 2002 was neither unlawful nor unconstitutional. This contention was – as highlighted above – endorsed by the decision of the High Court in Mosetlhanyane case. The Mosetlhanyane case is currently on appeal and all that can be said whilst awaiting the appeal decision is that the Court confirmed that the Government was under no obligation to provide essential services to Basarwa living within the CKGR. This decision – as will be highlighted below - highlights that ESCRs have not found favour with the Botswana Courts in so far their judicial enforcement is concerned.
In the Sesana case Justice Dibotelo highlighted that the thread running through the Applicants’ contentions that the termination of services was unlawful and unconstitutional was that they were not consulted before the decision to terminate the services provided to the inhabitants of the CKGR. Such a decision was made- the Applicants alleged- notwithstanding that they had a legitimate expectation that the government would consult them before making such a decision which was likely to adversely affect them or their interests or better still likely to prejudice them. The learned judge found as a matter of fact that the government consulted the Applicants before it made the decision to terminate the provision of services inside the CKGR. He therefore dismissed the Applicants’ argument- that the termination by the government of the provision of the basic and essential services to the Applicants was both unlawful and unconstitutional- as without merit. The learned Judge’s decision was based squarely on principles relating to legitimate expectation as this was the argument put forth by the Applicants in their founding papers.[100]
The decision by Justice Phumaphi was also based on principles of legitimate expectation.[101] The learned judge rightly held- after a discussion of the circumstances leading to the stoppage of services- that the simultaneous stoppage of the supply of food rations and the issuance of special game licenses (SGLS) is tantamount to condemning the remaining residents of the CKGR to death by starvation.[102] The learned Judge goes on to find that not only was the refusal to issue SGLs to the Applicants ultra vires the Wildlife Conservation and National Parks Act, but also violated the Applicants’ constitutional right to life.[103]
Despite that the Learned Judge’s discussion of the issues at one point made reference to the simultaneous stoppage of issuance of SGLs and supply of food rations to the inhabitants of the CKGR and the consequent impact of such a drastic step on the right to life, his concluding paragraph on the issue does not make any reference to the stoppage of such services as a violation of the right to life. Supporting the position adopted by Justice Dibotelo, the learned judge concluded that the Applicants neither established a case of legitimate expectation based on promise nor on practice,[104] hence the termination of services was not unlawful and unconstitutional.[105] Consequently, the Government was not obliged to restore the basic and essential services to the Applicants in the CKGR.[106]
In her dissenting judgement Justice Dow rightly held that the termination of services endangered life and was tantamount to a violation of the Applicants’ right to life. [107] Further that the government was under an obligation to restore basic and essential services to those residents who were in the reserve.[108] It is this dissenting opinion that was and remains a glimmer of hope for the judicial enforcement of ESCRs in Botswana. The learned Judge’s decision could have perhaps benefited more from the jurisprudence of other jurisdictions, in particular and as would be shown later in the paper, case law from the Indian Supreme Court. It nonetheless remains a bold and progressive interpretation of the Constitution. Justice Dow held that the issues in the case before the Justices were so connected that making a determination of the issues as stand alone issues would be too narrow and simplistic.[109] After holding that the termination of services was unlawful and unconstitutional, Justice Dow then proceeded to order the restoration of such services to the CKGR and made an award of damages to those Applicants who might have sustained such damages.
The approach adopted by Justice Dow was not only progressive but was also in conformity with international human rights standards, in particular, Botswana’s obligations under the African Charter. Justice Dow deliberately chose, it appears, to adopt a rights based approach and did not decide the case on the basis of legitimate expectation as the other two justices did.
Given the courts’ general reluctance on the adjudication of matters involving ESCRs, it is not all surprising that Justice Phumaphi, quoting Forsyth, opined that;
It seems to me that, if this Court were to decide that the services should be restored, in the face of admitted evidence to the effect that provision of services in the reserve is unsustainable on account of costs, the import of the Court’s decision would be to direct the Respondent to re-prioritise the allocation of national resources. In my view, the Court should be loathe to enter the arena of allocation of national resources unless, it can be shown that the Respondent has, in the course of its business transgressed against the Supreme Law of the land or some other law.[110]
Despite that the learned Judge expressed these sentiments in the context of legitimate expectation under administrative law, it is evidence of the erstwhile position by courts elsewhere that adjudication over matters concerning ESCRs essentially amounts to directing the executive to reprioritise. A position rejected by the South African Constitutional Court [111] and the British Courts.[112] The opinion by the learned judge might be interpreted as endorsing the position held by courts in other jurisdictions that courts are not competent to adjudicate over issues pertaining to ESCRs even where the Government minimum core obligations are in issue. The reasons being that there are policy considerations involved, that renders the Courts incapable of making pronouncements over such matters.[113]
The South African Constitutional Court has shown that the courts can make decisions pertaining to ESCRs without dwelling too much in the budgetary allocation details by the state.[114] It is acknowledged that the role of the courts in that regard is indeed slippery and should be treaded on very carefully considering that it involves issues of the ability of the courts to pass enforceable judgements as well as the institutional legitimacy of the courts. However, that should not be a bar to the courts playing a critical role in the enforcement of ESCRs.
In the main, the Sesana Case presented a window of opportunity to the High Court to have established precedent as pertaining to the judicial enforcement of ESCRs in Botswana. The decision- even though it is considered by some as a valiant attempt to adopt an expansive and purposive interpretation of the right to life- remains unquestionable evidence of the Court’s failure to adopt a purposive interpretation of the Constitution in the wake of globalisation and an era of human rights culture. This to a large extent have been cemented by the Mosetlhanyane case in so far as the issue of the Government’s obligations to provide essential services to the Basarwa residing in the CKGR is concerned.
This approach is worrisome but there is need to acknowledge that the court was not directly confronted by the question of socio-economic rights such that, it cannot be said as a matter of fact that the court refused to enforce those rights. However, the decision remains unsettling evidence of how the court might approach the issue of judicial enforcement ESCRs in Botswana. Below is a discussion of how the Botswana High Court should treat ESCRs in the light of decisions from other jurisdictions, in particular decisions from the Indian Supreme Court.
3. The Indian experience as a practical response to the question of judicial enforcement of ESCRs in Botswana
The Indian experience has shown that it is possible that civil and political rights could be used to imply ESCRs entitlements. This approach has shown that the argument that ESCRs are not capable of judicial protection because they are difficult to define is fallacious.[115] As it has been rightly pointed out, there are a number of civil and political rights that could be interpreted to cover ESCRs.
However, this practice has been rejected by some commentators on the ground that doing so undermines the status ESCRs and is likely to have a negative impact on the court institutional legitimacy.[116] As aforementioned, Botswana falls under a category of states with no constitutionally guaranteed ESCRs. The practice in other jurisdictions without constitutionally guaranteed ESCRs has been to use civil and political rights to achieve judicial enforcement or protection of socio-economic rights. Rights such as the ‘the right to life, dignity as well as the right to non- discrimination have been used to imply ESCRs.[117] The position in such countries is thus similar to the one adopted by Justice Dow in her dissenting opinion in the Sesana case.
The Indian Supreme Court has over the years come to adopt a broad interpretation of the right to life guaranteed by Article 21 of the Indian Constitution.[118] The right has been interpreted as including, ‘the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head.’[119] In the case of Paschim Banga khet Mazdoor Samity v State of Bengal[120] the Indian Supreme Court held that failure on the government hospitals to provide timely treatment to a person in need of such treatment was a violation of the right to life.[121] Further, that providing medical facilities for the people is an essential obligation of the state and that the obligation could not be avoided by pleading financial constraints.[122] This order came after an agricultural labourer who, when taken to as many as seven government hospitals in Calcutta as a result of suffering severe head injuries, was turned away simply because there were no empty beds to admit him.
In Unni Kkrishnan J.P v State of Andrha Pradesh,[123] the court held that the right to education is part of the right to life enshrined under the Indian Constitution and on that basis a child was entitled to free education up to the age 14 years.[124] The Indian Supreme Court has also interpreted the right to life as protecting environmental rights.[125] This expansive interpretation of the right to life has helped the Indian courts to overcome the justiciability debate and the legitimacy of the courts in adjudicating over ESCRs.[126] The Indian Supreme Court in the case of Francis Coralie Mullin v The Administrator, Union Territory of Delhi[127] whilst adopting an expansive interpretation of the right to life, has held that the extent of the right will largely depend on the extent of the economic development of the country but must nonetheless include the bare necessities of life.[128] This is evidence of the fact that the Indian approach is cognizant of the underlying financial implications of enforcing ESCRs and accordingly acknowledged that the extent of any right will be limited by such.
The Botswana High Court is not the first to actually fail to adopt the Indian approach of a purposive interpretation of the right to life. Perhaps, it was largely because the litigants in the Basarwa case chose not to pursue their quest for the restoration of essential services through the right to life argument. In the case of Baitsokoli & Another v Maseru City Council & Others[129] an attempt by an association of traders and an individual to evoke the right to life was unsuccessful. The litigant had a stall in the Centre of Maseru and was removed by the City Council to a market some 200m away or to the new market known as the Old Local Government premises. The challenge to the relocation was squarely founded on the right to life guaranteed under section 5 the Constitution of Lesotho. The litigants essentially argued that their right to livelihood was being put under risk by their removal to a new market. They relied most on the Indian jurisprudence and urged the court to hold that the right to life encompassed the right to livelihood. The court a quo held that the right to life guaranteed under section 5 of the Constitution could not be defined and interpreted even most expansively and purposively [emphasis mine] to include the right to livelihood.
The matter was accordingly taken on appeal. After an attempt to distinguish the facts of the case before it from the Indian cases, the Court of Appeal of Lesotho upheld the court a quo decision and held that the right to life did not encompass a right to livelihood. According to the Court, this was on the basis that the right to livelihood formed the subject matter of a specific and separate provision, being section 29 of the Constitution of Lesotho. Further that, since the right to livelihood was included as a DPSP under section 29 it could not be enforced within the ambit of the right to life. The learned Judge sought support from the reasoning of Chasklson P in Soobramoney v Minister of Health (KwaZulu Natal) when rejecting an attempt by the litigants to invoke an expansive interpretation of the right to life viz the right to medical treatment in South Africa. Chasklson had then held in his judgment that;
In our Constitution the right to medical treatment does not have to be inferred from the nature of the State established by the Constitution or from the right to life which it guarantees. It is dealt with directly in section 27. If section 27(3) were to be construed in accordance with the appellant’s contention it would make it substantially more difficult for the State to fulfill its primary obligations under sections 27(1) and (2) to provide health care services to “everyone” within its available resources… In my view much clearer language than that used in section 27(3) would be required to justify such a conclusion.[130]
Certainly the learned judge’s position was not that since the right to life is wide in nature, it is not advisable that it be interpreted to include the right to medical treatment. Again, it becomes necessary to point out that the right to medical treatment is included under section 27 South African Constitution as a separate and specific right not as a directive principle of state policy. On the other hand, the right to livelihood in Lesotho is provided for in section 29 of the Constitution as a DPSP and not as a right. The argument by the Lesotho Court of Appeal- that, since the Constitution envisages the right to livelihood as a DPSP, the court is barred from inferring the right to livelihood from the right to life- is therefore erroneous.[131] This is mainly because the proposition does not take into account the fact that the directive principles of state policy are non-justiciable or are not enforceable before the courts of law. They are usually used for interpreting the provisions of the constitution. It has been pointed out that DPSPs ‘relate to policy or goals or directions rather than to the existence or extent of legal rights vested in any individual or group normally subject to the jurisdiction of courts of law’[132] The effect of the decision in Baotsokoli case has the effect of elevating DPSPs to a position whereat DPSPs are justiciable.
The question that follows therefore is whether it matters or not that the Constitution of Botswana does not have DPSPs. Essentially, whether the Indian position is rendered irrelevant in Botswana because the Constitution does not have ESCRs embodied in the Constitution as DPSPs.
The right to life is often described as a cross cutting right and has been described by the African Commission in the case of Forum of Conscience v Sierra Leone[133] as the fulcrum of all other rights and as the fountain through which other rights flow, with any violation of the right amounting to deprivation of life.[134] It follows therefore that, since the right to life is a self-standing right there is no need for the Constitution of Botswana to have DPSPs before the Courts could adopt a purposive and expansive interpretation of the right to life. Further, unlike other socio-economic rights for example, the right to shelter finds no corresponding expression as a DSP within the Indian Constitution.[135] That notwithstanding, the right has been interpreted as forming part of the right to life enshrined under article 21 of the Indian Constitution.[136] The decision of the Lesotho Court of Appeal in Baitsokoli & Another could be viewed as an indication that the absence of DPSP in the Botswana Constitution leaves enough room for an easier use of civil and political rights to secure the judicial enforcement of ESCRs.
It is therefore submitted that the expansive and purposive interpretation of the right to life by the Indian Supreme Court is very relevant to Botswana and other countries in a similar position. As shown above, it matters little whether the Constitution does or does not have DPSP. It is within the Courts’ discretion therefore to adopt a purposive and expansive interpretation of the right to life entrenched in their constitutions to include a variety of ESCRs.
5. The role of the courts and the judicial enforcement of socio- economic rights: lessons for Botswana
Having said all the above, the question that remains therefore is what should be the role of the Botswana Courts in the judicial enforcement of socio-economic rights considering their noticeable absence from the Constitution.
It is submitted that it is incumbent upon the courts to ensure that there is sufficient judicial protection of ESCRs within a particular state. To that end it can be argued that the Indian courts have shown that it is possible to adjudicate over socio-economic rights despite their non-existence from the Constitution as fully fledged rights or rights properly so called. The jurisprudence of the South African Constitutional Court has also shown that the courts may be in a position to adjudicate over issues pertaining to the protection and fulfilment of socio-economic rights. The South African Constitutional Court has since come to the conclusion that a reasonable government policy must cater for different groups and their needs in society.[137] To that end there is enough evidence to suggest that socio-economic rights can be legally enforced in national systems.[138]
The courts are certainly not in an envious position when it comes to the judicial enforcement of socio-economic rights and their position becomes even less enviable if socio-economic rights are not constitutionally protected. Unenviable as it may seem, the Botswana courts are under an obligation to protect the rights of Batswana be they civil and political or economic, social and cultural. One may be tempted to argue that the task of the Botswana Courts is less daunting because of the absence of ESCRs in the Constitution and that, the absence of such, this means that there should not be any talk about the judicial enforcement of ESCRs in Botswana. Such a view will be too narrow and a show of a lackadaisical approach to matters of rights and in particular socio-economic rights. In fact it has been suggested by Dixon that;
..in enforcing rights, courts have a much greater capacity, even a responsibility, to play an active role in countering “ blind spots ” and “ burdens of inertia ” in the political process... In the enforcement of socioeconomic rights, courts should not discount the value of a strong approach to the definition of states ’ obligations, or the use of strong remedies; rather, they should weigh the benefits of weakened rights versus remedies according to the circumstances of a particular country and case.[139]
What the role of the courts ought to be can be said to be summarized by the above quote. The Botswana courts are as a matter of fact mandated to protect and enforce rights enshrined under the constitution and in carrying out such mandate they should take heed of the above quoted words of Dixion. The judiciary is tasked with upholding the constitution and assuming the role of a watchdog so as to ensure that the other branches of the government acts within their constitutionally imposed limitations.[140]
It is submitted that the High Court have several options as regards their role in the judicial enforcement of socio-economic rights in Botswana. Firstly, the courts can adopt what has now come to be known as the implied rights doctrine where certain civil and political rights are used as a means of enforcing socio-economic rights. A discussion of the Indian Supreme Court jurisprudence above shows that such is possible provided that the courts are able to adopt a purposive interpretation of civil and political rights.
Miamingi disagrees with the approach of recasting social rights claims violations of classic civil and political rights and argues that the approach attracts the risk of oversimplifying the complexities that arises from social rights litigation. He argues further that the approach is likely to undermine the status of ESCRs and is a threat to the legitimacy of the judiciary especially if they are seen to be adjudicating over non-existent rights. Beyond cautioning that the use of civil and political rights to enforce social rights claims has its own risks, Miamingi’s argument is not persuasive in at least two major respects. In the first instance, his rejection of the ‘re-casting social rights’ or implied rights doctrine approach does not take into account the difficulties involved with the litigation on ESCRs when they are not constitutionally protected. It does not take into account also issues relating to locus standi and the impossibility of public interest litigation and the usually archaic civil procedure rules rigidly enforced by the courts. Practically, how else would one enforce such rights- apart from recasting them as civil and political rights claim- when they are not only non-justiciable but are also not included in the country’s constitution such as Botswana. Are socio-economic rights litigation advocates supposed to wait until such time that ESCRs are constitutionally protected? The question that Miamingi asks, that is, whether “the implied rights doctrine is a practical response to juticiaphobia”[141] should be answered with a resounding ‘yes’. Secondly, the jurisprudence of the Indian Supreme Court has shown that the implied rights doctrine can be used effectively to protect socio-economic rights. This is so particularly that most of the socio-economic rights have been included in the Indian Constitution as DPSPs.
Apart from using the implied rights doctrine, the principle of legitimate expectation under administrative law may also be used to enforce socio-economic rights. In R v North and East Devon Health Authority ex parte Coughlan[142] the decision of the local authority to close down an old persons’ home was reversed using standard judicial review grounds of legitimate expectation. This can be used to make decisions that are taken with the aim of ensuring that the decisions taken by the government are not adverse to the interests of the citizenry. The problem with this approach is that it does not take into account the human rights implications of the decision taken by the government. As evidenced by the Sesana case, where there are no grounds for setting aside an administrative act of government the court is likely to find in favour of the government. This is despite that there are ensuing human rights violations as a result of such a decision. To that end a litigant would have to be confident of the grounds upon which they are praying for judicial review to avoid the pitfalls that comes with approaching the court using standard judicial review.
As Viljoen[143] rightly points out, the role of the courts is more pronounced when it comes to applying the constitution. The courts are the custodians of the constitution and as such should not be seen to be siding with one section of the society. It is thus incumbent upon the Botswana High Court to interpret the Constitution purposively and generously[144] to advance the judicial protection of socio-economic rights in Botswana. The oftcited words of Aguda JA in the Dow case are instructive in this regard when he pointed out that the constitution should not be allowed to be a lifeless museum and that;
…the primary duty of the judges is to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever-developing society which is part of the wider and larger human society governed by some acceptable concepts of human dignity.[145]
Within that ambit the High Court can craft the test with which to decide upon such matters. The South African Constitutional has used the reasonableness test to determine whether the acts of government are cognizant of the dignity of an individual whilst the African Commission it appears has adopted the minimum core obligation approach. Granted, this would not be an easy task but it is a task that the High Court has to undertake so as to ensure that all are protected. It is also clear that the Court will have to make orders and judging from the South African experience that is bound to be a daunting task. For example, the South African courts have had to make use of structural interdicts[146] to enforce ESCRs and as Mbazira rightly points out this “has enabled the judges to discard their positions as mere umpires and to assume positions which make them active participants in the dispute”[147] The use of structural interdicts in South Africa has been controversial to say the least.[148]Whilst the High Court has embraced the use of interdicts the Constitutional Court has emphasized the need for the courts to desist from getting embroiled in what it considers to be policy issues.[149]
The Botswana High Court should not be reluctant to infuse some sense of judicial activism in their decision making process.[150] This is particularly so that the laws and rules leave enough room for them to maneuver and come up with decisions that are alive to the needs of the society. Such judicial activism is indeed necessary in relation to the judicial enforcement of socio-economic rights because it might be needed to ‘provoke or spur the political system into addressing questions of social exclusion.”[151] Further, the judges should be made aware, endeavor to recognize and apply international norms and standards in the protection of human socio-economic rights in Botswana. The High Court should not be stifled by over adherence to judicial precedent but should act assertively in order to ensure that ECSRs in Botswana are sufficiently protected. This is important not only for the protection of such rights in Botswana but also for the legitimacy of the courts for as it has been rightly pointed out ,a judicial pronouncement will command more respect if it is in line with international norms accepted by many jurisdictions.[152] In the end, such an approach will strengthen Botswana’ s democracy for “ [r]eal democracy means much more than the right to vote or to be voted for, especially as these rights do not always deliver the recognition, representation and entitlements that individuals and groups seek in any given context”[153]
6. Conclusion
Quite understandably, it has been argued that a focus on the role of the courts in the enforcement of socio-economic rights may as a matter of fact obscure the reality that the problems inherent in the enjoyment of socio-economic rights are mostly political. However, in countries where ESCRs are neither included in the constitution as substantive rights or included as DSPs, to reject the application of the implied rights doctrine is bound to deny the marginalised groups sufficient protection. An interpretation of cross cutting rights to protect ESCRs in the Botswana Constitution is- until a constitutional amendment that will see the inclusion of socio-economic rights -[154] the solution to the problems that might impede the judicial enforcement of such rights in Botswana. The robust approach taken by the Indian Courts and to some extent, the Irish Courts allows Botswana to draw some experiences from the manner in which they have judiciously and effectively used cross cutting rights to protect ESCRs. The fact that the Botswana Constitution does not protect ESCRs clearly does not mean that such rights cannot be effectively protected by the courts. The approach taken by Justice Dow in the Basarwa case should be nurtured and followed by the rest of the judges in their application and protection of rights enshrined in the Constitution.
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[1] See generally, Ditshwanelo, The Botswana Centre for Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, 68th Session, Geneva, 3-6 March 2006 at p. 10.
[2] As above.
[3] Ni Aolain and McKeever,“Thinking globally. Acting locally. Enforcing socio-economic rights in Northern Ireland” (2004) Eur.Hum. Rts L.Rev 2004
[4] As above.
[5] RA Kumar ‘Constitutional rights and judicial activism: Bridging the gaps in Botswana’ in E. Quansah & W Binchy (eds) The judicial protection of human rights in Botswana (2009) 119-131, 121.
[6] Stakeholders’ Information on Botswana, Submitted by the Centre for Human Rights, University of Pretoria, South Africa,13June 2008 available at (accessed on the 15 April 2009)
[7] Ibid. 7.
[8] Id.
[9] E.K. Quansah, “Law, Religion and human rights in Botswana”, 8 (2) African Human Rights Journal (2008) 486, 491.
[10] Id. See a purposive interpretation of the Constitution in the Dow v Attorney General where the Court interpreted the Constitution to have prohibited discrimination on the basis of sex despite the same not being included in the grounds of discrimination under the Constitution.
[11] Constitution of Botswana, s.4
[12] Ibid., s.5
[13] Ibid., s.6
[14] Ibid., s.7; See Petrus & Another v The State [1984] BLR 14, addressing the issue of corporal punishment and holding that corporal punishment was inhuman and degrading treatment contrary to internationally acceptable standards.
[15] Ibid., s.12
[16] Ibid., s.15; See Generally C.M. Fombad, “The Constitutional Protection against Discrimination in Botswana,” 53 The International and Comparative Law Quarterly (2004), pp. 139-170.
[17] Ibid., s.9; See Kanane v The State [2003] 2 BLR 67 wherein the Court of Appeal was of the view that gay men do not represent a group or class which required protection. Refusing to decriminalize same sex relations or declaring such sections of the penal code as constitutional, the Court held further that the time had not arrived for the adoption of progressive trends taking place elsewhere.
See further E.K. Quansah, “Same-sex Relationships in Botswana: Current perspectives and future prospects”, 4(2) African Human Rights Law Journal (2004) 201; K.N Bojosi, “ An opportunity missed for gay rights in Botswana: Utjiwa Kanane v The State” 20 South African Journal on Human Rights (2004) pp. 466-481; M.M. Chilisa “Two steps back for human rights: A critique of the Kanane case” 1 The Botswana Review of Ethics, Law & HIV/Aids” (2007) pp. 45-52.
[18] Ibid., s.8
[19] Ibid., s.5: See E.K. Quansah ( n 15 above) 486-504.
[20] Ibid., s.5
[21] Attorney General v. Dow, [1992] BLR 119; Kenneth Good v. The Attorney General, [2005] 1
BLR 462.
[22] As above.
[23] Amadou Oury Bah v Lybian Embassy 2006 (1) BLR 22 (IC) 25.
[24] Constitution of Botswana, s.18.
[25] As above.
[26] As above., s.18(2).
[27] As above.
[28] E. Keoreng ‘Ombudsman calls for human rights Commission for Botswana,’ Mmegi Newspaper, available online at (visited 9 January 2010).
[29] See generally C.M. Fombad “The enhancement of Good Governance in Botswana: A critical assessment of the Ombudsman Act, 1995” 27(1) Journal of Southern African Studies (2001) pp. 57-77.
[30] GA Resolution A/RES/63/117
[31] L. Chenwi ‘ Correcting the historical asymmetry between rights: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2009) 9 African Human Rights Law Journal 23.
[32] Chenwi ( n 29 above) 50.
[33] M.J Dennis & D.P Stewart ‘Justiciability of economic, social, and cultural rights: should there be an international complaints mechanism to adjudicate the right to food, water, housing, and health?’ (2004) 98 American Journal of international Law 462-515.
[34] See the African Commission decision in Purohit and Another v The Gambia wherein the African Commission in acknowledgement of the lack of resources in Africa read into the right to health the qualification of availability of resources; F Viljoen International human rights law in Africa (2007) 240.
[35] C Mbazira ‘ Enforcing the economic, social and cultural rights in the African Charter on Human and Peoples’ Rights: Twenty years redundancy, progression and significant strides’ African Human Rights Law Journal Volume 6 No. 2 ( 2006) 338.
[36] Mbazira (n 33 above) 340.
[37] African Women’s Protocol, arts 12-18;
[38] ACRWC, arts 11, 12,14,18.
[39] African Charter, art. 16.
[40] Ibid., art. 17.
[41] Ibid., art. 20.
[42] Ibid., art. 22.
[43] Ibid., art. 24.
[44] S.Ibe Beyond Justiciability: Realising the promise of socio-economic rights in Nigeria’ (2007) 7 African Human Rights Law Journal 229.
[45] Viljoen (n 32 above) 237.
[46] Mbazira (n 33 above)
[47] Social and Economic Rights Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001); Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998); Free Legal Assistance Group and Another v Zaire (2000) AHRLR 74 (ACHPR 1995); Purohit and Another v The Gambia (2003) AHLR 96 (ACHPR 2003); Union Interafricaine des Droits de l’Homme and Others v Angola (2000) AHRLR 18 (ACHPR 1997); International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998); Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000).
[48] Okeowo Ademola Olajamedi ‘ Economic, Social and Cultural Rights: rights or privileges’ available at (accessed on the 24 April 2009).
[49] As above, p. 1-2.
[50] As above, p.10.
[51] C. Mbazira ‘ Public Interest Litigation and Judicial Activism in Uganda: improving the enforcement of Economic, Social and Cultural Rights’ HURIPEC Working Paper NO.24, February 2009, 4.
[52] As above..
[53] Mbazira (n 49 above) 5.
[54] K Mclean Constitutional Deference, Courts and Socio-economic Rights in South Africa (2009) 111.
[55] Mbazira (n 49 above) 5.
[56] C Mbazira ‘ Enforcing the economic, social and cultural rights in the African Charter on Human and Peoples’ Rights: Twenty years redundancy, progression and significant strides’ African Human Rights Law Journal Volume 6 No. 2 ( 2006) 340.
[57] C Mbazira (n 54 above) 338; O.C Odinkalu ‘Implementing economic, social and cultural Rights under the African Charter on Human and Peoples’ Rights’ in M. Evans & R Murray The African Charter on Human and Peoples’ Rights : The system in practice, 1986- 2000 (2002) 181.
[58] Vienna Declaration and Programme of Action, U.N GABOR, World Conf. On Hum. Rts. , 40th Sess., 2nd plen. Mtg., part 1, 5 U.N . Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M 1661 (1993); HJ. Steiner, P.Alston & Goodman “International Human Rights In context:Law, Politics, Morals” (2008) 263; S Harris-Short ‘International Human Rights Law: Imperialist, Inept and ineffective? Cultural Relativism and the UN Convention on the Rights of the Child’ (2003) Human Rights Quarterly 130-181, 131.
[59] See generally, Ditshwanelo, The Botswana Centre for Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, 68th Session, Geneva, 3-6 March 2006 at p. 10.
[60] See generally, Ditshwanelo, The Botswana Centre for Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, 68th Session, Geneva, 3-6 March 2006 at p. 10.
[61] As above.
[62] Roy Sesana & Others v The Attorney General, MISCA No. 52 of 2002 reported as Sesana and Others v The Attorney General 2002 1 BLR 452 (HC). For the purpose of the present paper, reference will be made to the original judgment.
[63] Matsipane Mosetlhanyane & Others v The Attorney General of Botswana, High Court Decision MAHLB – 000393-09 (Unreported).
available at (accessed 07 November 2010).
[64] As above; C Ng’ong’ola ‘Sneaking the aboriginal title into Botswana legal system through a side door: Review of Sesana and Others v The Attorney General’ (2007) 6 University of Botswana Law Journal 108.
[65] Ng’ong’ola ( n 64 above) 108.
[66] Ng’ong’ola (n 64 above) 112.
[67] Sesana & Others (n 63 above) 134.
[68] Sesana & Others (n 63 above) 121; with Justice Unity Dow dissenting.
[69] Sesana & Others (n 63 above) para. 137-8.
[70] Mosetlhanyane & Others (n 63 above) 1, para 1.
[71] Mosetlhanyane & Others (n 63 above) 5, para 2.
[72] Mosetlhanyane & Others (n 63 above) 5, para 3.
[73] Mosetlhanyane & Others (n 63 above) 5, para 9-10
[74] Sesana & Others (n 63 above) 761.
[75] Para. 12 of the Applicants’ written submissions ( on file with the author).
[76] Mosetlhanyane & Others (n 63 above) 12, para 30.
[77] Mosetlhanyane & Others (n 63 above) 13, para. 31.
[78] Mosetlhanyane & Others (n 63 above) 24, para. 63.
[79] Para. 80 of the Applicants’ written submissions ( on file with the author).
[80] Para. 83 – 84 of the Applicants’ written submissions ( on file with the author).
[81] UN General Assembly Resolution 54/175; General Comment 15 of the United Nations Committee on Economic, Social and Cultural Rights on the International Covenant on Economic, Social and Cultural Rights (ICESCR); UN Covenant on the Rights of the Child (CRC), article 24(2); International Law Association: Rules on the Equitable and Sustainable Use of Waters, Ninth Draft, art 9, at ; UN Covenant on the Elimination of All Forms of Discrimination against Women (CEDAW), article 14(2)(h); UN Covenant on International Civil and Political Rights (ICCPR) article 1(2).
[82] V v United Kingdom [1999] 30 E.H.R.R. 121 at 175; Tyrer v United Kingdom [1979-80] 2 E.H.R.R. 1 at 11; McNab and Others v Minister of Home Affairs [2007] NAHC 50; The City of Johannesburg and two others v Lindiwe Mazibuko and four others, SCA 489 of 2008;
[83] Cap: 34:01.
[84] Mosetlhanyane & Others (n 63 above) 13, para. 32; Para. 22—38 of the Applicants’ written submissions ( on file with the author).
[85] Mosetlhanyane & Others (n 63 above) 13, para. 34.
[86] Mosetlhanyane & Others (n 63 above) 13, para. 34.
[87] Mosetlhanyane & Others (n 63 above) 18, para. 47.
[88] Mosetlhanyane & Others (n 63 above) 20, para. 53
[89] Mosetlhanyane & Others (n 63 above) 18, para. 48.
[90] Mosetlhanyane & Others (n 63 above) 19, para. 49.
[91] Ikgopoleng Shabane & 25 Others v Kereng Solly Mogami & The Attorney General 2005 (1) BLR 343 at p.345.
[92] Mosetlhanyane & Others (n 63 above) 19, para. 49.
[93] Mosetlhanyane & Others (n 63 above) 29, para. 77.
[94] Ibid.
[95] Mosetlhanyane & Others (n 63 above) 19,
[96] Mosetlhanyane & Others (n 63 above) 33, para. 92.
[97]Mosetlhanyane & Others (n 63 above) 92, para. 92.
[98]Mosetlhanyane & Others (n 63 above) 49, para. 102.
[99] Mosetlhanyane & Others (n 63 above) 37, para. 104.
[100] The applicants contended that the termination of services was both unlawful and unconstitutional on two grounds, that is ;(i) that the Applicants enjoyed a legitimate expectation that they would be consulted before their services were terminated, but they were not consulted and (ii) that the termination was in breach of the National Parks and Game Reserve Regulations 2000 (“the 2000 Regulations”).
[101] C Forsyth ‘The protection of legitimate expectations: The pitfalls for Botswana to avoid ‘ (2006) 3 University of Botswana Law Journal 5-16.
[102] Sesana & Others (n 63 above) para. 137.
[103] Sesana & Others (n 63 above) para. 138.
[104] Sesana & Others (n 63 above) para. 48.
[105] Sesana & Others (n 63 above) para. 49.
[106] Sesana & Others (n 63 above) para. 57.
[107] Sesana & Others (n 63 above) para. H13 .
[108] Sesana & Others (n 63 above) para. H16.
[109] Sesana & Others (n 63 above) para. H1.2.
[110] Sesana & Others (n 63 above) para. 55.
[111] Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (Grootboom); Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (TAC).
[112] R v East Sussex Ex parte Tandy [1998] AC 714, [1998] 2 All ER 769; Gosselin v. Quebec (Attorney General [2002] 4 S.C.R. 429, 2002 SCC 84.
[113] T Eisenberg & S Yeazell ‘The ordinary and the extraordinary in institutional litigation’ (1980) 93 Harvard Law Review 465.
[114] Minister of Health and Others v Treatment Action Campaign and Others 2 (2002) 5 SA 721 (CC).
[115] A P James ‘The forgotten rights- the case for the legal enforcement of socio-economic rights in The UK national law’
[116] Unpublished: P Miamingi ‘Inclusion by exclusion? As assessment of the justiciability of socio-economic rights under the 2005 Interim Constitution of the Sudan’ unpublished LLM thesis, University of Pretoria, 2008, 17.
[117] Miamingi (n 105 above) 17.
[118] Lord Lester of Herne Hill QC & C O’Cinneide ( n 58 above) 19.
[119] Francis Coralie Mullin v Union Territory of Dehli AIR (1981) SC 746.
[120] (1996) 4 SCC 37.
[121] Ibid, 38.
[122] Ibid, 16.
[123] (1993) 1 SCC 645, at 730.
[124] Ibid, 735.
[125] M.C Mehta v Union of India (1987) 4 SCC 463; Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647.
[126] S. Muralidhar ‘Economic, Social & Cultural Rights: an Indian response to the justiciability debate’ in Y Ghai & J Cottrell Economic, Social & Cultural Rights in Practice: The role of judges in implementing Economic, Social &Cultural Rights (2004) 23-32, 25.
[127] (1981) SC R 516.
[128] Ibid,529 B-F.
[129] (2004) AHRLR 195 (LeCA 2004).
[130] Para 19, (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997)
[131] See a detailed discussion of this case in F Viljoen International human rights law in Africa (2007) 577-580 wherein he highlights, among other things, that “By suggesting that its approach is a superior or ‘logically correct’, the Lesotho Court of Appeal displays an arrogant lack of insight into the contingency of its own finding.”
[132] B. Obinna Okere,’Objectives and Directive Principles of state policy under the Nigerian Constitution ‘ 1983 (32) The international and Comparative Law Quarterly 214- 228, 221.
[133] (2000) AHRLR 293 (ACHPR 2000) para. 19.
[134] As above.
[135] Shanti Star Builders v. Narayan K. Totame (1990) 1 SCC 520. In Bandhua Mukti Morcha v. Union of India (1991) 4 SCC 177
[136] Shanti Star Builders v Narayan K Totame (1990) 1 SCC 249.
[137] S. Liebenberg ‘ The value of human dignity in interpreting socio-economic rights’ (2005) 21 South African Journal of Human Rights (SAHJR) 16.
[138] Asha P James ‘The forgotten rights- the case for the legal enforcement of socio-economic rights in The UK national law’
[139] R Dixon ‘Creating dialogue about socio-economic rights: strong form versus weak –form judicial review revisited‘ International Constitutional Journal (2007) 5
[140] C Mbazira Litigating socio economic rights in South Africa: A choice between corrective and distributive justice (2009) 35.
[141] Miamingi (n 108 above) 17.
[142] (2000) 2 WLR 622.
[143] F Viljoen ‘The justiciability of Socio-economic and Cultural Rights: Experience and problems’ in Y Donders & V Volodin (eds) Human Rights in Education, Science and Culture: Legal Developments and Challenges (2007) 53-110, 100.
[144] See generally Attorney- General v Dow [1992] BLR 119, 131; Sejammitlwa & Others v Attorney- General & Others [2002] 2 BLR 75, 82.
[145] [1992] BLR 119, at 166; Kumar (n 3 above) 127. Some commentators however have argued that supporters of judicial activism "are characterised by a deep distrust of the democratic political process, and by an authoritarian tinge" see generally J Hardiman "The Role of the Supreme Court in our Democracy" in Mulholland (ed.), Political Choice and Democratic Freedom in Ireland: Forty Leading Irish Thinkers (2004) 42.
[146] The interdict is an order instructing a person to do that they have been asked to do or desist from doing a particular thing. As such the interdict may be used as both relief for persons whose rights have been violated and as a deterrence for future similar human rights violations; see generally Mbazira ( n 132 above) 166.
[147] Mbazira ( n 132 above) 165.
[148] As above.
[149] As above.
[150] Kumar (n 3 above) 119-131; See B Obinna Okere Judicial Activism or passivity in interpreting the Nigerian Constitution’ (1987) 36 The International and comparative Law Quarterly 788- 816.
[151] G Whyte ‘Socio-Economic Rights in Ireland: Judicial and Non-Judicial Enforcement’ Draft paper by Gerry Whyte, Law School, Trinity College Dublin, presented at the IHRC Conference on Economic, Social and Cultural Rights, 9 December 2005 available at ihrc.ie/download/doc/ecrgerardfwhyte.doc (accessed 6 January 2010)
[152] AR Gubbay ‘The protection and enforcement of fundamental human rights: The Zimbabwean experience ‘1997 21 Human Rights Quarterly 227-257, 254.
[153] Francis B. Nyamjoh ‘ Chieftaincy and the Negotiation of Might and Right in Botswana Democracy’ 12 J. CONTEMP. AFR. STUD. 233 (2003) quoted in A. Cook & J. Sarkin ‘IS Botswana the Miracle of Africa? Democracy, the Rule of Law, and Human Rights versus Economic Development’ 19 Transnational Law & Contemporary Problems (2010) 458 – 488, 466.
[154] The fact that socio-economic rights are not constitutionally protected is one of the compelling reasons why Botswana needs a constitutional review. It is beyond doubt than inclusive constitutional review will ensure maximum protection of rights in Botswana.
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