John K. Modise v Botswana

Parties (including notable third parties)

John K. Modise (Complainant); Botswana (State)

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Summary of Facts

The Complainant’s father and mother were both born in the former protectorate of Bechuanaland (now Botswana). The Complainant’s father had the status of a protected person of the British Crown.

The Complainant was born in Cape Town in around 1943 where his father was an immigrant worker. At that time, Cape Town was part of the Union of South Africa (which became the Republic of South Africa in 1961).

The Complainant’s mother died when he was 3 months old. His father brought him to the then Bechuanaland protectorate (now Botswana) so that relatives could take care of him. The Complainant subsequently grew up in the protectorate and regularly travelled in and out of the protectorate.

The attainment of independence by Botswana on 30 September 1966 resulted in a new citizenship law that was incorporated into the new Constitution of Botswana.

In 1978, the Complainant was one of the founders and leaders of an opposition political party in Botswana called the Botswana National Front.

The Complainant was deported to South Africa four times, the first occasion being in October 1978. On each of these occasions he was rejected by South Africa. After the Complainant’s fourth deportation he was obliged to settle in Bophuthatswana. He lived there for seven years until the Government of Bophuthatswana issued a deportation order against him following which he remained for five weeks in the no-man’s land between Bophuthatswana and Botswana. The complainant was then admitted to Botswana on a humanitarian basis. He obtained a three month entry permit until June 1995.

The Complainant never held a South African passport or citizenship of Bophutatswana.

The Complainant claimed Botswana nationality by birth and by parentage. The Complainant alleged that he had been unjustly deprived of his real nationality and claimed violation of Articles 3(2) , 5, 7(1)(a), 12(1) and (2), 13(1), and (2), 14, 16 (1) and (2) and 18(1) of the African Charter.

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Legal Arguments

The main point of contention between the Complainant and the State was whether the Complainant was a citizen by birth. The dispute turned on Section 20(1)–(2) of the Constitution of Botswana 1966. Section 20(1) granted citizenship at independence to persons in Bechuanaland who were then British Protected Persons or Citizens of the United Kingdom and Colonies. Section 20(2) extended citizenship to those born outside Bechuanaland who held that status, provided they were not nationals of another country, and their fathers became (or would have become but for death) citizens under Section 20(1).

The State argued that the Complainant did not meet the conditions required for acquiring Botswana nationality under Section 20(2) of the Constitution because, having been born in South Africa, he automatically enjoyed the nationality of that country and was consequently disqualified from holding Botswana nationality under Section 20(2). The State also argued that the complainant could have regularised his status by applying for naturalisation under Section 23(1) before October 1968 but he failed to do so.

The Complainant argued that the South African authorities never accepted him as a national of South Africa. The Complainant argued that he satisfied the requirements in Section 20(2) of the Constitution of Botswana. He claimed that the combined operation of Sections 12(1) and (2) and Section 1 of the British Nationality Act meant that he was both a British subject and a citizen of the United Kingdom and Colonies on the day preceding 30 September 1966. As a result, he became a citizen of Botswana by descent on 30 September 1966. The Complainant’s claim also hinged on his father’s status as a British Protected Person born in Bechuanaland. Had the father been alive at independence, he would have automatically become a Botswana citizen under Section 20(1). Section 20(2) extended that status to his children “but for his death”.

Outcome

The Commission held that the Complainant acquired Botswana citizenship on 30 September 1966 by virtue of Section 20(2) of the Constitution of Botswana in force at the time. The Commission held that the denial of this right was in violation of Articles 3(2) and 5 of the Charter, which provides: ’Every individual shall be entitled to equal protection of the law’. Article 5 on the other hand provides: “Every individual shall have the right to the respect …to the recognition of his legal status.’

The Commission held that it should not be assumed that it is a universal principle that a person automatically acquires citizenship of the place of birth. The Commission noted evidence that the Complainant was never accepted in South Africa as a citizen.

The Commission found the Complainant’s deportations and constant threat of deportation and the resulting consequences constituted a violation of Article 5 of the Charter.

The Commission held that the deportations also deprived the Complainant of his family and therefore also constituted a violation of the Complainant's right to family life enshrined under Article 18(1) of the Charter.

The Commission held that the deportations also greatly jeopardised the Complainant's right to freedom of movement, as a citizen of Botswana, in contravention of his rights under Article 12(1) of the Charter. It also infringed upon his right to leave and to return to his country guaranteed by Article 12(2) of the Charter.

The Commission found that the government of Botswana violated the Complainant's right to property guaranteed under Article 14 of the Charter by confiscating his belongings and property.

The Commission considered that fact that the Complainant’s first deportation came soon after he founded an opposition political party. The Commission found that this timing suggests his deportation may have been designed to hamper his political participation. The Commission noted the ways in which citizenship by registration is inferior to citizenship by birth including that a citizen by registration cannot be elected to the highest political office in the country. The Commission held that granting the Complainant citizenship by registration ‘gravely deprived him of one of his most cherished fundamental rights, the right to freely participate in the government of his country, either directly or through elected representatives’. The Commission found it also constituted a denial of his right of equal access to the public service of his country guaranteed under Article 13(2) of the Charter.

The Commission urged the Government of Botswana to take measures to recognise the Complainant as a citizen of Botswana by descent and also to compensate him adequately for the violations of his rights occasioned.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	African Charter	Articles 3(2) , 5,7(1)(a), 12(1) and (2), 13(1), and (2), 14, 16 (1) and (2) and 18(1)
Domestic	Botswana Constitution	Sections 20(1) and (2), 23(1)
Domestic	British Nationality Act of 1948	Sections 12(1) and (2), 1

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Daniel Abebe, ‘Does International Human Rights Law in African Courts Make a Difference’ (2016) 56(3) Virginia Journal of International Law 527.

• The author comments that the Government of Botswana had not taken additional steps to comply with the ACommHPR’s recommendation that Mr Modise be granted citizenship by descent and be compensated.

Keshav Nagi, ‘Statelessness and Nationality: A Primitive Punishment for Invisible Population’ (2017) 2(1) Supremo Amicus 208.

• This article discusses Mr Modise in the context of arbitrary deprivation of nationality for the objective of deciphering the judicial trends and the approach towards statelessness, drawing on how:
  • The state had ‘abused Modise’s rights under the African Charter…by not recognising him as a resident of their state and by extraditing him from Botswana, and consequently made him live in vicious poverty’
  • The ‘registered citizenship granted by the state authority to Modise was insufficient on the grounds that it was not at par with the citizenship by birth in toto’

Gina Bekker, ‘The African Commission on Human and People’s Rights and Remedies for Human Rights Violations’ (2013) 13(3) Human Rights Law Review 499.

• This article aims to uncover the reason for why that the ‘jurisprudence of the African Commission on Human and Peoples’ Rights in relation to remedies centres on a largely deferential attitude towards the States, with an initial overemphasis on the attainment of amicable resolutions’ and that the greatest failure lies in the Commission’s ‘refusal to provide genuine redress to victims of human rights violations.
• It comments that, ‘by giving primacy to the pursuit of the attainment of an amicable resolution over the concern of victims, the Commission effectively failed to provide redress’.
• It also suggests that Mr Modise’s case is an example of ‘the underlying issue of deference to the State’ and ‘poses a serious impediment to the genuine redress of human rights violations’.

Chidi Anselm Odinkalu, ‘Back to the Future of Imperative of Prioritizing for the Protection of Human Rights in Africa’ (2003) 47(1) Journal of African Law 1.

• This article notes the role of the Commission in identifying that Mr Modise’s ‘troubles started after he formed an opposition party’, implying his statelessness may have come about as a form of punishment for dissent.