97/93_14AR : John K. Modise / Botswana
Summary of Facts
1. The Complainant claims citizenship of Botswana under the following circumstances: His father was
a citizen of Botswana who went to work in South Africa. While in South Africa, he married and the
Complainant was an issue of that marriage. The Complainant’s mother died shortly after his birth and
the Complainant was sent to Botswana, where he grew up. The Complainant therefore claims
Botswana nationality by descent.
2. The Complainant alleges that in 1978, he was one of the founders and leaders of an opposition
party called Botswana National Front. He is of the view that it is because of his political activities that
he was declared an “undesirable immigrant” in Botswana by the government.
3. On 17th October 1978, he was arrested and handed over to the South African police without being
brought before a tribunal. He already had a judicial action pending before a Botswana court, regarding
a temporary work permit, but with his deportation, he was unable to follow the case.
4. When he returned to Botswana, he was once again arrested and deported without trial. After his
third attempt at returning, he was charged, convicted of illegal entry and declared an undesirable
immigrant. He was serving a ten-month prison term and had filed an appeal when he was deported for
the fourth time to South Africa, before the case was concluded.
5. Since the Complainant did not have South African nationality, he was obliged to settle in the
homeland of Bophutatswana. He lived there for seven years until the government of Bophutatswana
issued a deportation order against him and he found himself in the no-man’s land between
Bophutatswana and Botswana, where he remained for five weeks, when he was admitted into
Botswana on a humanitarian basis. He obtained a three-month entry permit, renewable at the entire
discretion of the competent ministry, until June 1995.
6. The Complainant does not and has never held a South African passport or citizenship of
Bophutatswana.
7. He claims to have suffered heavy financial losses, since the government of Botswana confiscated
his belongings and property. He cannot work, since he does not have the relevant permit, and he is
constantly under threat of deportation. He has gone to great lengths to try to prove his Botswana
nationality, and the appeal against his prison sentence is still pending. He presently has no funds to
prosecute his claims in court.
8. He is asking the Government of Botswana to recognise him as a citizen by birth.
Complaint
9. The Complainant alleges that he has been unjustly deprived of his real nationality and claims
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.
Procedure
10. The communication was presented by John K. Modise on 3rd March 1993.
11. The Commission was seized of the communication at its 13th Session, held in March 1993.
12. The government was notified of the communication on 12th April 1993. It submitted no reply to
the same.
13. On 13th May 1993, a letter was addressed to Mr John K. Modise informing him that the
communication had been examined at the 13th Session, and that the Commission required some
clarifications from him regarding the exhaustion of local remedies.
14. A second notification was addressed to the government on 12th August 1993. There was still no
response from the government.
15. On 7th September 1993, the Complainant replied to the Secretariat’s letter dated 13th May 1993,
emphasising that he had exhausted the available local remedies. He added that he could no longer
pursue his case before the national jurisdictions due to lack of financial resources.
16. Another notification was sent to the government on 29th January 1994, with a copy to the
Complainant.
17. On 30th January 1994, the Secretary to the Commission received correspondence from the
spouse of the Complainant, stressing that Mr John K. Modise had no more money to pursue the case
brought before the national jurisdiction, since he had been forced into exile and that he had suffered
heavy financial losses due to the confiscation of his belongings by the Botswana Police.
18. On 22nd February 1994, the Complainant acknowledged receipt of the copy of the notification
addressed by the Secretariat to the government on 29th January 1994. He also called on the
Commission to consider his case, as he believed that he had exhausted all the available local
remedies. A short chronicle of the case was attached to the said correspondence.
19. The Complainant wrote again on 24th October 1994 in reply to the Secretariat’s correspondence
dated 8th August 1994, to confirm having exhausted local remedies.
20. At its 16th Session held in October 1994, the Commission re-examined the communication and
decided to defer its decision until it received information on the manner in which other human rights
bodies handle cases involving Complainants that lack financial means.
21. At the 17th Session, the communication was declared admissible. It was considered appropriate
to assign the case to the Commissioner covering Botswana to deal with under his human rights
promotion activities. Consequently, responsibility was assigned to Commissioner Janneh. However,
no concrete measures were taken.
22. On 20th April 1995, a correspondence was dispatched to the Complainant to inform him of the
decision regarding the admissibility of the communication.
23. On 18th May 1995, a letter was received from the European Commission on Human Rights in
reply to the Secretariat’s request regarding the issue of financial difficulties.
24. On 26th May 1995, a correspondence was sent to the Botswana government to inform it of the
decision on admissibility taken by the Commission and to request it to consider an amicable
settlement of the case. There was no response from the Government of Botswana.
25. On 23rd September 1995, the Commission received a correspondence dated 15th May 1995
from the non-governmental organisation, INTERIGHTS informing it that it had been designated by Mr
Modise to represent him at the next session of the Commission. In this regard, Mr Modise’s letter to
INTERIGHTS dated 2nd December 1994 was annexed to the said correspondence.
26. The same envelope contained a second letter from INTERIGHTS dated 15th May, stating that the
NGO had just been informed of the decision on admissibility taken by the Commission at its 17th
Session and requesting, therefore, that a formal notification of the said admissibility be addressed to it.
INTERIGHTS also enclosed an explanatory note on the case and the demands of the Complainant,
and indicated its intention to be present at Praia, at the 18th Session, to argue the case.
27. At the 18th Session held in October 1995, the Commission heard the counsel of the
Complainant, Mr Odinkalu. It was decided to defer the decision on the merits in order to allow some
time for the efforts at arranging an amicable settlement and, if necessary, the case would be reexamined at the 19th Session.
28. On 19th October 1995, the Secretariat received by fax a Note Verbale from the Ministry of
Foreign Affairs of Botswana with the information that the Head of State had granted Botswana
nationality to Mr Modise, and that his certificate of nationality had been sent to him by post on 26th
June 1995.
29. On 30th November 1995, a copy of this Note Verbale was dispatched to Mr Odinkalu with a letter
informing him that if the Commission did not receive any contrary information before its next session,
the granting of nationality would be considered an amicable settlement.
30. On 14th December 1995, the Secretariat received a letter from Mr Odinkalu, counsel to the
Complainant, indicating that he did not consider the granting of nationality as an amicable settlement
and asking the Commission to continue the examination of the case.
31. On 28th December 1995, the Secretariat received correspondence from Commissioner Dankwa
asking for copies of all documentation relevant to the case for his use during a mission to Botswana.
32. On 25th January 1996, the Secretariat received faxed correspondence from Mr Odinkalu
indicating his intention to send some supplementary information to the Commission.
33. On 13th February 1996, the Secretariat received a letter from Commissioner Dankwa asking for
copies of certain pages of Mr Modise’s passport. The Secretariat forwarded them to him by fax.
34. On 23rd February 1996, the Secretariat sent a fax message to Commissioner Dankwa inquiring
about the results of his mission to Botswana.
35. On 28th February 1996, Mr Odinkalu, counsel for the Complainant, presented an additional note
describing the special conditions of the nationality by naturalisation granted to Mr Modise.
36. On 1st March 1996, the Secretariat received a fax message from Commissioner Dankwa
informing it that he had not been able to carry out his mission to Botswana before the 19th Session.
37. During the 19th Session, the communication was not examined.
38. On 8th May 1996, a letter was sent to the Botswana government, acknowledging receipt of its
Note Verbale of 19th October 1995, and informing it that the communication had not been examined
at the 19th Session, but that it would be done at the 20th Session slated for October 1996.
39. On 8th May 1996, a letter was sent to the Complainant giving him the same information as
above. A copy of the Note Verbale addressed to the Commission by the government on 19th October
1995 was attached to the letter.
40. On 9th October 1996, the Secretariat of the Commission received a fax message from
INTERIGHTS, mainly to transmit a copy of Mr Modise’s letter stating that all domestic remedies had
been exhausted, and that even though the Government of Botswana had promised Commissioner
Dankwa that Mr Modise would be issued with a passport, his application had still not been approved
by the competent authorities.
41. On 10th October 1996, the Secretariat acknowledged receipt of INTERIGHTS’ correspondence.
42. At its 20th Session, held in Grand Bay, Mauritius, in October 1996, the Commission heard a
presentation made by INTERIGHTS. Following the hearing, it decided to defer a decision on the merits
to its next session in order to give more time to explore the avenue of an amicable settlement.
43. On 12th December 1996, the Secretariat addressed a Note Verbale to that effect to the
government.
44. On 12th December 1996, the Secretariat addressed a letter to that effect to INTERIGHTS.
45. At its 21st Session in April 1997, the Commission decided to close the case, by considering that
Mr Modise’s naturalisation constituted an amicable settlement of the matter.
46. On 11th June 1997, the Secretariat notified the Complainant, the State Party and the
Complainant’s counsel, respectively.
47. On 16th June 1997, the Secretariat received a fax message from INTERIGHTS, indicating that it
was not satisfied with the Commission’s decision and that it was consequently calling for the matter to
be reopened.
48. On 19th June 1997, the Secretariat acknowledged receipt of INTERIGHTS’ letter of 16th June
1997, while also explaining the decision taken by the Commission.
49. On 26th June 1997, a letter was written to Mr Modise on the subject, with a copy to
INTERIGHTS.
50. On 18th July 1997, the Secretariat received a letter from INTERIGHTS subtitled “Reopening of
Communication 97/93”, together with a nine-page explanatory note.
51. On 29th July 1997, the Secretariat wrote a letter to Commissioner Dankwa, with INTERIGHTS’
explanatory note attached, calling for his opinion as Rapporteur on the communication.
52. At its 22nd Session, held from 2nd to 11th November 1997, the Commission decided to accede
to INTERIGHTS’ request to reopen the case and therefore to re-examine the reasons that led its
previous decision, which considered that the communication had been closed on the basis of an
amicable settlement. The Commission further requested Botswana to provide it with information on the
terms of the settlement reached between the two parties, the directives regarding its implementation,
as well as the type of citizenship granted to Mr Modise.
53. On 18th November 1997, the Secretariat wrote to the parties to inform them of the Commission’s
decision.
54. On 11th February 1998, the Secretariat addressed a reminder Note Verbale to Botswana’s
Ministry of Foreign Affairs.
55. By the 23rd Session, the government of Botswana had not yet reacted to the above-mentioned
request. The Commission consequently requested the Secretariat to remind the government about the
request.
56. On 10th August 1998, the Respondent State responded to the request.
57. At its 24th Ordinary Session held from 22nd to 31st October 1998, the Commission heard Mr
Botsweletse Kingsley Sebele, Secretary General of the Botswana Ministry of Labour and Home
Affairs. He stated that the laws of his country could not give Mr Modise any status other than that
which he has already been granted, adding that Mr Modise had obstinately refused to co-operate with
the government of Botswana. The Commission thereafter deferred a decision on the merits to its 25th
Session.
58. On 10th November 1998, the Secretariat wrote to the parties concerned informing them of the
Commission’s decision.
59. By two Notes Verbale dated 6th October 1998 and 9th December 1998, the Government of
Botswana reiterated its position contained in its earlier Note Verbale of 27th May 1998.
60. On 16th April 1999, INTERIGHTS wrote to the Commission requesting a deferral of the hearing
of the case to the 26th Ordinary Session due to Mr Odinkalu’s illness.
61. At the 25th Ordinary Session of the Commission held in Bujumbura, Burundi, the Commission
deferred hearing of the communication to its 26th Ordinary Session.
62. On 6th July 1999, the Secretariat of the Commission wrote letters to the parties informing them of
the Commission’s decision.
63. On 29th September 1999, the Government of Botswana replied through fax confirming its
position contained in its Note Verbale of 9th December 1998, and requesting that the information
therein be brought to the attention of the Commissioners and the Legal representatives of the
Complainant.
64. On 1st October 1999, the Secretariat of the Commission replied to the said Note Verbale. A copy
of the government's response was forwarded to INTERIGHTS for information and necessary action.
65. On 20th October 1999, INTERIGHTS sent to the Secretariat of the Commission its written
response to the observations of the Government of Botswana.
66. At its 26th Ordinary Session held in Kigali, Rwanda, the Commission reviewed the case and
noted that the Government of Botswana had indicated that if it did not hear anything contrary to its
position, it would consider the case closed. Since INTERIGHTS had submitted a brief to the contrary,
the Commission, therefore, decided to bring it to the attention of the Government of Botswana. A final
decision on the merits was deferred to the next ordinary session.
67. The above decision was conveyed to parties on 18th January 2000. A copy of INTERIGHTS' brief
was attached to the letter sent to the Government of Botswana. No response has been received from
the competent authorities of Botswana.
68. At the 27th Ordinary Session of the Commission held in Algeria from 27th April to 11th May 2000,
the Commission examined the case and deferred its further consideration to the next session.
69. The parties were informed of the said decision on 12th July 2000.
Law
Admissibility
70. This communication has a long history before the Commission. It was declared admissible at the
17th Ordinary Session of the Commission on grounds that local remedies were unduly prolonged and
the legal process wilfully obstructed by the government through repeated deportations of the
Complainant. The case was later closed because the Commission considered that the Complainant's
naturalisation constituted an amicable settlement of the matter. It was however re-opened upon the
application of INTERIGHTS on behalf of the Complainant.
Merits
The State Party's Response
71. The Respondent State later responded to the Commission's request on the terms of the
settlement reached with the Complainant. It submitted, among others, that Mr Modise had been
naturalised as a Botswana citizen on 28th February 1995. By virtue of that, he enjoyed all the rights
inherent to his status as provided in chapter II of the country’s constitution. Furthermore, a document
attached to the note from the Respondent State contained the relevant constitutional provisions
regarding Botswana citizenship as at the time of the country’s independence. The document provides
explanatory details on the birth and parentage of the Complainant, who was born in the territory of
what was then the Union of South Africa (which became the Republic of South Africa in 1961), of a
father who had the status of a protected person of the British crown, though originating from the
protectorate of Bechuanaland (present day Botswana). The Respondent State points out that Mr
Modise and his counsel had probably innocently misunderstood and misinterpreted Section 20(2) of
the Botswana Constitution. The Respondent State avers that the place of birth of an individual
immediately confers its nationality on that person. This nationality by birth may later be rejected or
given up by that person, his parents or legal custodian. To avoid a child being born stateless, the law
operates in such a way that the place of birth confers its nationality to an individual. It is not necessary
to take any legal steps to guarantee that nationality. Section 20(2) of the Constitution concerns those
individuals born outside the protectorate of Bechuanaland and who were at the time of their birth either
subjects of Her Majesty or crown protected persons and whose fathers had acquired Botswana
citizenship in compliance with the provisions of Section 20(1). John K. Modise could have benefited
from the provisions of Section 20(1) of the Constitution if his father, born in the protectorate territory
and having the status of a crown protected person were alive at the time of Botswana’s independence.
John K. Modise does not meet the conditions of Section 20(2) because, having been born in South
Africa, he is by that fact a South African citizen by simple application of the law and without him having
to take any legal steps to prove his nationality. Hence, in 1966, he was not a subject of Her Britannic
Majesty and of her colonies, nor a protected person of the English crown. South Africa was not, in
1966, a British colony. Consequently, he did not meet the conditions required for acquiring Botswana
nationality under Section 20(2).
72. Section 23(1) concerns the case of those individuals who found themselves in a similar situation
to that of Mr Modise: in the sense that it provided the possibility of acquiring Botswana nationality to
those persons whose fathers had acquired that nationality in compliance with Section 20(1); but even
the children of such persons were excluded in the light of the provisions of Section 20(2). Since Mr
Modise, by virtue of the legal provisions, could not lay claim to the nationality of the new state of
Botswana either by birth or by parentage [Section 20(2)], the law gave him the possibility of choosing
that nationality by naturalisation[ Section 23(1)]. This text provides that all those who had reached the
age of majority should apply for their naturalisation before 1st October 1968. It seems that Mr Modise
who was 33 years old as of that date had not taken advantage of that possibility which was open to
him for a period of two years. This explains his present difficulties, for since he had not taken the steps
necessary for his naturalisation, in the eyes of the law he was considered as not being interested.
73. The argument of Mr Modise and his counsel that he was a Botswana citizen by birth and by
parentage does indeed seem tenuous. In terms of the legal provisions in force in September 1966, he
could not lay claim to the said nationality. He was born in South Africa and not in the protectorate of
Bechuanaland. He could not claim Botswana nationality by parentage because he was explicitly
excluded there from by Section 20(2). The proposition that he has never claimed any other nationality
is entirely immaterial – for he did not have any reason to do so. Having been born in South Africa, he
automatically enjoyed the nationality of that country. That automatically disqualified him from holding
Botswana nationality in compliance with Section 20(2). He could, however, by virtue of the provisions
of Section 23(1), have opted for the said nationality, but did not do so. The State of Botswana has
offered all and sundry the possibility of making a conscious choice between keeping their nationality
by birth and naturalisation as a citizen of the new State of Botswana. Mr John Modise could not, in this
regard, hide behind the excuse of ignorance, because no one is expected to be ignorant of the law.
74. In reaction to the above claims by the Respondent State, the Complainant's legal representative
submitted that such claims contained several adverse claims of facts, law, and of mixed facts and law
that were untrue, self-contradictory and contested.
75. He contested the claim that when Mr Modise was deported to South Africa, the authorities there
accepted him as a citizen. He pointed out that Mr Modise was first deported to South Africa from
Botswana on 17th October 1978, pursuant to a directive issued on 16th October 1978 by the
Permanent Secretary in the Office of the President of the Respondent State. Upon returning to
Botswana four days later on 21st October 1978, he was arrested and charged with re-entering
Botswana, while being a prohibited immigrant.
76. The question as to whether or not South Africa accepted Mr Modise as a national was directly
addressed in the decision of Hayfron-Benjamin (Chief Justice) in the appeal of Mr Modise against his
conviction in the case of John K. Modise v The State, decided by the High Court of the Republic of
Botswana on 20th September 1979. The relevant part of the said decision reads:
The acceptance warrant, Exhibit P2, was issued at the Kopfontein Border Post and was dated 18th
December 1978, i.e. two months after the Immigration Officer says he handed the accused over to the
South African authorities. Cross-examination of the witness (the Immigration Officer, testifying for the
Prosecution) disclosed that he was mistaken as to which document the South African authorities had
signed that day.
He said: "the document P2, the acceptance warrant, is not the one which was signed by the
Immigration Post in South Africa at the time I handed the accused to the border post…"
The prosecution, therefore, closed its case without clearing up a matter, which apart from any other
considerations, would be a factor in the assessment of the sentence to be imposed. If the South
African authorities were only prepared to accept the appellant in December, the indications are that he
was bundled out of the country before the necessary preparation for his acceptance had been
completed and before the accused, who had been in the country (Botswana) from infancy had settled
his affairs here.
77. From the above therefore, he claims that this decision, which is still uncontested, shows that the
Government of Botswana has never shown and was unable to show that the South African authorities
had accepted Mr Modise as a national of South Africa. On the contrary, he submits that South Africa
did not accept Mr Modise, but that Mr Modise was then banished to the defunct South African
Homeland of Bophuthatswana, whose (then) government by a letter to Mr Modise (Ref. No.
4/6/2/8/818/78), of 6th October 1986, wrote that:
Modise does not appear in the population register of the Citizens of Bophuthatswana. The subject of
citizenship is a matter between you (Mr Modise) and the Botswana government.
To validate their point, in the same year, the then government of the defunct Homeland of
Bophuthatswana deported Mr Modise back to Botswana.
78. Regarding the claim that there is no citizenship that can be offered or granted to Mr Modise, he
averred that such is contradicted by the other claim in the letter to the Commission by Mr B. K. Sebele,
Permanent Secretary, Ministry of Foreign Affairs dated 9th December 1998 that: Mr Modise registered
as a citizen under special circumstances at the direction of the President of the Republic of Botswana,
although he failed to indicate the date on which Mr Modise was so registered. He submits that it is
impossible to reconcile the claim that the Complainant registered as a citizen under special
circumstances at the direction of the President of Botswana with the claim by Mr B. K. Sebele in his
letter aforesaid that "There is no citizenship that can be offered or granted to Mr Modise". He attested
that Mr Modise had reported that sometimes in 1998, immigration officials in Lobatse, Botswana
visited him and invited him to sign a document to facilitate the renewal of his residence permit in
Botswana that had expired. When he tried to verify the document, he was warned that he risked
immediate and prompt deportation unless he signed the document, whereupon he promptly signed.
Although he is physically in Botswana, he has not received any documentation or indication on his
current nationality status from the Respondent State.
79. He disputes as factually untrue the claim that Mr Modise is responsible for his failure to enjoy his
rights as a citizen of Botswana, by refusing to produce the necessary documents as proof of his
citizenship. In any case, he points out that their production would not remedy the violations asserted
by him in this case.
80. On the issue that Mr Modise could not and did not become a citizen by descent under the
repealed Section 20(2) of the Constitution of Botswana, because he was neither a British Protected
Person nor a citizen of the United Kingdom and colonies on 29th September 1966, counsel submits as
follows: The repealed Section 20 of the Constitution of Botswana referred to in the letter of Mr B. K.
Sebele provides:
(1) Every person who, having been in the former Protectorate of Bechuanaland, is on 29th September,
1966, a citizen of the United Kingdom and Colonies or a British Protected Person, shall become a
citizen of Botswana on 30th September 1966.
(2) Every person who having been born outside the former Protectorate of Bechuanaland, is, on 29th
September, 1966, a citizen of the United Kingdom and Colonies or a British protected person, and is
not a citizen of any other country, shall, if his father becomes, or would, but for his death have become
a citizen of Botswana in accordance with the provisions of sub-section (1) of this section, become a
citizen of Botswana on 30th September, 1966.
81. Counsel submits that since it is common ground that Mr Modise was born in South Africa of
parents from Botswana, Section 20(1) is inapplicable to him. Section 20(2) is therefore the applicable
provision. However, a determination of whether or not Mr Modise was a citizen of the United Kingdom
and Colonies or a British Protected Person on 29th September 1966 can only be made in terms of
the British Nationality Act of 1948. The provision of that Act which applies to Mr Modise is Section
12(2), which provided that:
A person who was a British subject immediately before the date of the commencement of this Act
shall, on that date become a citizen of the United Kingdom and Colonies and possessed any of the
qualification [sic]specified in the last foregoing subsection
The last foregoing subsection referred to in this provision is sub-section1 of Section 12 of the same
Act that provides:
A person who was a British subject immediately before the date of the commencement of this Act shall
on that date become a citizen of the United Kingdom and Colonies if he possesses any of the
following qualifications, that is to say:
(a) That he was born within the territories comprised at the commencement of this Act in the United
Kingdom and Colonies, and would have been such a citizen if Section four of this Act had been in
force at the time of his birth;
(b) That he is a person naturalised in the United Kingdom and Colonies;
(c) That he became a British subject by reason of the annexation of any territory included at the
commencement of this Act in the United Kingdom and Colonies;
82. Counsel submits further that it is not in dispute that Mr John Modise's father, Samuel Remaphoi
Modise and his mother, Elizabeth Ikaneng Modise, were both born in Goo-Modultwa ward in Kanye of
the Bangwaketse in the former Protectorate of Bechuanaland (now Botswana). John Modise, their son
and Complainant in this case, was born in Cape Town where his father, Samuel Remaphoi Modise
was an immigrant worker, about 1943. Had he (Mr Samuel Remaphoi Modise) been alive on 30th
September 1966, Samuel Remaphoi Modise who was born in 1912 would have fulfilled the
requirement of Section 12(1)(a) of the British Nationality Act of 1948 and, thereby been a national of
the United Kingdom and the Colonies. Thus, by the combined operation of Section 12(1) and (2) and
Section 1 of the British Nationality Act, John Modise, his son, was both a British subject and a citizen
of the United Kingdom and Colonies on the day preceding 30th September 1966. As a result, he
became a citizen of Botswana by descent on 30th September 1966. The relevant provision of Section
1 of the British Nationality Act provides:
(1) Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any
enactment for the time being in force in any country mentioned in subsection (3) of this section is a
citizen of that country, shall, by virtue of that citizenship have the status of a British subject…
(2) The following are the countries herein before referred to, that is to say, Canada, Australia, New
Zealand, The Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia (now
Zimbabwe) and Ceylon (now Sri Lanka)
83. On the claim by the Respondent State that there are no classes of citizenship in Botswana for
purposes of enjoying rights and privileges, the Complainant's counsel asserts that apart from the
concession by Mr B. K. Sebele, Permanent Secretary, Ministry of Foreign Affairs, that 'as a registered
or naturalised citizen, one is not eligible for election as a President', there remain, in addition, in
Botswana three more serious consequences of citizenship by registration. The consequences are:
(a) Citizenship by descent arises by operation of law and by biological facts over which the claimant
has no control. Citizenship by registration on the other hand arises by the interposition of an
administrative act facilitated by acts and facts supplied by the beneficiary.
(b) Citizenship by descent can be transmitted down the line to the children; but citizenship by
registration can only be transmitted to children born after it has been acquired. This is particularly
relevant in this case as all the children of the complainant are now adults (above 21 years) and would
therefore remain stateless even if their father were granted citizenship by registration.
(c) The manner in which different classes of citizenship may be lost differs. It takes a voluntary act of
renunciation to lose citizenship by descent. Citizenship by registration or naturalisation can however
be withdrawn by a directive issued by a minister of the ruling party or government.
84. While the decision as to who is permitted to remain in a country is a function of the competent
authorities of that country, this decision should always be made according to careful and just legal
procedures, and with due regard to the acceptable international norms and standards. In order for the
Commission to determine whether there have been violations of the Charter as alleged by the
Complainant, it is incumbent on it to assess the nationality of the Complainant based on the facts
presented before it. The current circumstances of the Complainant are a result of a policy decision
taken by the Botswana government.
85. The Complainant argues that he has been unjustly deprived of Botswana citizenship. In the brief
submitted by his counsel, it is claimed that the Complainant was born in South Africa of Samuel
Remaphoi Modise (father) and Elizabeth Ikaneng Modise (mother) from Goo-Modultwa ward in Kanye
of the Bangwaketse in the former Protectorate of Bechuanaland (now Botswana). His father went to
work in South Africa as a migrant worker. These facts are not contested by the Respondent State (see
a copy of a document outlining Botswana Citizenship Law attached to the Note Verbale of 27th May
1998). In fact, paragraph 3(a) and (b) of the said document emphatically asserts concerning John
Modise's father thus: "He was therefore a British protected person…At all times he remained a British
Protected person" (see also paragraph 6 of the said document). Paragraph 3(d) and (e) of the said
document assert that John Modise's mother died when he was three months old and his father
brought him to the then Bechuanaland Protectorate (Botswana) to ensure that relatives take care of
him; while his boyhood days are outlined in paragraph 3(e) to the effect that John subsequently grew
up in the Protectorate and regularly travelled in and out of the Protectorate. The attainment of
independence by Botswana on 30th September 1966 changed things and a new citizenship law was
incorporated into the new Constitution. The State Party reproduced some of the relevant provisions of
the said Constitution. They are sections 20(1) and (2) and 23(1).
86. The main point of contention of the Respondent State is that Mr Modise could not and did not
become a citizen by descent under the repealed Section 20(2) of the Constitution of Botswana
because he was neither a British protected person nor a citizen of the United Kingdom and Colonies
on 29th September 1966, being a person who was born outside the former Protectorate of
Bechuanaland (now Botswana). Granted that John Modise's father was at all times a British Protected
person, the question for determination is what then was his son's (John Modise's) nationality? To
successfully do this, it is necessary to look at the relevant provision of the Botswana Constitution. The
government has cited three provisions, to wit: Sections 20(1) and (2) and 23(1) of the Constitution.
Section 20(1) provides:
(1) Every person who, having been born in the former Protectorate of Bechuanaland, is on 29th
September 1966, a citizen of the United Kingdom and Colonies or a British Protected Person, shall
become a citizen of Botswana on 30th September 1966.
(2) Every person who having been born outside the former Protectorate of Bechuanaland, is, on 29th
September 1966, a citizen of the United Kingdom and Colonies or a British protected person, and is
not a citizen of any of other country, shall, if his father becomes, or would, but for his death have
become a citizen of Botswana in accordance with the provisions of sub-section (1) of this Section,
become a citizen of Botswana on 30th September 1966.
87. Section 20(1) of the said Constitution is not applicable to this case, for the simple reason that Mr
John Modise was not born in the former Protectorate of Bechuanaland. Section 20(2) of the
Constitution is the applicable law in this regard, since Mr John Modise was born outside the former
Protectorate of Bechuanaland of a British Protected person (his father). Had Mr Samuel Remaphoi
Modise lived on 30th September 1966, he would, of course, have been a citizen of Botswana by virtue
of the provision of sub-section (1) of this section. The Respondent State does not dispute this fact.
Following the clear wordings of the sub-section, Mr John Modise having been born outside the former
Protectorate of Bechuanaland of a British Protected person, would have become a citizen of Botswana
but for his father's death. Mr John Modise would therefore have become a citizen of Botswana by birth
by the operation of this sub-section. The government's position, stated in its brief accompanying its
Note Verbale of 27th May 1998, and Mr B. K. Sebele's statement contained in his letter of 9th
December 1998 (Ref: CHA 4/19X (88) PS), that Mr John Modise is not covered by Section 20(2) of the
Constitution of Botswana are neither convincing nor satisfactory. The respondent state's Note Verbale
referred to above assigns South African citizenship to Modise as at 30th September 1966 without
proof. Nothing is produced about South African law that confers citizenship on Modise. It should not be
assumed that it is a universal principle that a person automatically acquires citizenship of the place of
birth. It is not Botswana law that determines South African law.
88. In any event, evidence abounds that the Complainant, Mr John Modise, is not and has never
been accepted in South Africa as a citizen. If that had happened, Mr Modise would not have suffered
the fate of being deported four times. The refusal of South Africa to accept him as its citizen forced Mr
Modise to live for eight years in the "homeland" of Bophuthatswana, and then for another seven years
in "No Man's Land", a border strip between the former South African Homeland of Bophuthatswana
and Botswana. The then government of the defunct Homeland of Bophuthatswana deported Mr
Modise back to Botswana (see paragraph 75 and 76 above).
89. John Modise's father was a Tswana at the time of independence, 30th September 1966 and his
son, the Complainant not having been shown to have any other citizenship, acquired Botswana
citizenship by virtue of Section 20(2) of the Constitution of Botswana in force at the time. The denial of
this right is 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”. Having arrived at this, it is
therefore not necessary to consider the other provisions of the Constitution cited by the State Party.
90. The Commission takes notice of the fact that the Complainant, Mr John Modise, as indicated in
the above judgement, had lived in the Republic of Botswana from his infancy. Mr John Modise had
also worked in Botswana and until 1978, without being subjected to the rigours of obtaining the
necessary nationality documents applicable to a citizen by registration that the government claims he
is. The Commission also takes notice that the Government of Botswana, without acknowledging any
responsibility did take some steps to remedy the complainant's situation by granting him a certificate of
citizenship in June 1995, under Section 9(2) of the Citizenship Act of Botswana.
91. Deportation or expulsion has serious implications on other fundamental rights of the victim, and in
some instances, the relatives. Having decided on the issue of Modise's citizenship, the Commission
would now advert [sic] its mind to the other claims made by the Complainant, in order to determine
whether his rights guaranteed under the Charter have been violated.
92. The Complainant contends that his incessant deportation, constant threats of deportation and the
accompanying disastrous consequences constitute a violation of Article 5 of the Charter. The facts of
this case reveal that the Complainant was deported four times to South Africa, and on all these
occasions, he was rejected. He was forced to live for eight years in the "homeland" of
Bophuthatswana, and then for another seven years in "No Man's Land", a border strip between the
former South African Homeland of Bophuthatswana, and Botswana. These acts exposed him to
personal suffering and indignity in violation of the right to freedom from cruel, inhuman or degrading
treatment guaranteed under Article 5 of the Charter. Article 5of the Charter provides:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the
recognition of his legal status. All forms of exploitation and degradation of man particularly…torture,
cruel, inhuman and degrading punishment and treatment shall be prohibited.
93. The deportation also deprived him of his family, and his family, of his support. The Commission
finds this in violation of the Complainant's right to family life enshrined under Article 18(1) of the
Charter. Article 18(1) provides:
The family shall be the natural unit and basis of society. It shall be protected by the State which shall
take care of its physical health and moral.
94. The Complainant alleges, and the State has not contested that he had been deported four times
from Botswana. The Complainant also detailed his plights as a result of these acts. In this
circumstance, the Commission finds that the said deportations had 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. Articles 12 (1) and (2) provide:
(1) Every individual shall have the right to freedom of movement and residence within the borders of a
State provided he abides by the law.
(2) Every individual shall have the right to leave any country, including his own, and to return to his
country. This right may only be subject to restrictions, provided for by law for the protection of national
security, law and order, public health or morality.
95. The Complainant also claimed to have suffered heavy financial loses, since the Government of
Botswana confiscated his belongings and property. The Government of Botswana has not refuted this
allegation. It is trite law that where facts go uncontested by a party, in this case, the respondent state,
such would be taken as given. The Commission therefore finds the above action of the Government of
Botswana an encroachment of the Complainant's right to property guaranteed underArticle 14 of the
Charter. Article 14 reads:
The right to property shall be guaranteed. It may only be encroached upon in the interest of public
need or in the general interest of the community and in accordance with the provisions of appropriate
laws.
96. The Complainant alleges that in 1978, he was one of the founders and leaders of an opposition
party, the Botswana National Front. He alleges further that it was as a result of his political activities
that he was declared an "undesirable immigrant" in Botswana by the government. He contends that
citizenship by registration, which the respondent government granted to him is in several ways inferior
to citizenship by birth, which he deserves as of right. One of such consequences is that he cannot vie
for the highest elected political office in the country, that is, the presidency of the Republic of
Botswana. This fact has been admitted by B. K. Sebele, Permanent Secretary, Ministry of Labour and
Home Affairs of the respondent state to the effect that: "Except for being barred to be elected or
becoming President of Botswana, he enjoyed all other rights enjoyed by a citizen of Botswana." (See
paragraph 2, page 3 of Mr Sebele's letter of 9th December 1998).
97. While this may not seriously affect most individuals, it is apparent that for Mr Modise, such a legal
disability of grave consequence. Considering the fact that his first deportation came soon after he
founded an opposition political party, it suggests a pattern of action designed to hamper his political
participation. When taken together with the above action, granting the Complainant citizenship by
registration has therefore 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. It also constitutes a denial of his right of equal access to the public service of his
country guaranteed under Article 13(2) of the Charter. Article 13 of the Charter provides:
(1) Every citizen shall have the right to participate freely in the government of his country, either
directly or through freely chosen representatives in accordance with the provisions of the law
(2) Every person shall have the right of equal access to the public service of his country.
Holding
For the above reasons, the Commission
Holds a violation of Articles 3(2), 5 , 12(1) and (2), 13 (1), and (2), 14 , 18(1) of the African Charter.
Urges the Government of Botswana to take appropriate measures to recognise Mr John Modise as a
citizen of Botswana by descent and also to compensate him adequately for the violations of his rights
occasioned.
Cotonou, Benin, 23rd October to 6th November 2000.