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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
1 See generally, Ditshwanelo, The Botswana Centre for Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, 68 th Session, Geneva, 3-6 March 2006 at p. 10.
2
? As above.
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. 3 Ni Aolain and McKeever,“Thinking globally. Acting locally. Enforcing socio-economic
rights in Northern Ireland” (2004) Eur.Hum. Rts L.Rev 20044 As above.
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
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 http://wwww.upr-info.org/IMG/pdf/Centre_for_Human_Rights_University_of_Pretoria_Botswana_E_2
record as regards ratification and reporting on international treaties and conventions,
unimpressive record as regards the domestication of ratified instruments7 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
008.pdf (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.412 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.1216 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.
privacy17 and protection from deprivation of property,18 freedom of conscience19 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
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.819 Ibid., s.5: See E.K. Quansah ( n 15 above) 486-504. 20 Ibid., s.521 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.
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
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 http://www.mmegi.bw/index.php?sid=1&aid=13&dir=2009/April/Friday17 (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.
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 200830 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
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.
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
ESCRs36 and is supplemented by thematic regional instruments such as the African
Women’s Protocol37 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 clauses44as they are unequivocally justiciable like all other rights enshrined
under the charter45 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
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).
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
48 Okeowo Ademola Olajamedi ‘ Economic, Social and Cultural Rights: rights or privileges’ available at <http://ssrn.com/abstract=1320204 > (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.
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
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.
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.
4.1 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 General62 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.
59 See generally, Ditshwanelo, The Botswana Centre for Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, 68 th 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, 68 th 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 http://www.chr.up.ac.za/images/files/news/humanrightsnews/ckgr_judgment.pdf (accessed 07 November 2010).
4.1.1 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 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.
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
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.
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.
4.1.2 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
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.
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
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.
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
instruments81 as well as several foreign decisions82 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
Act83, in particular sections 6 to 9 of the Act. The Applicants argued that the totality of
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 http://www.ilahq.org/pdf/Water%20Resources/Draft%20Rules9November2003.pdf; 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.
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
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. 5389 Mosetlhanyane & Others (n 63 above) 18, para. 48.
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.
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.
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
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. 92.97Mosetlhanyane & Others (n 63 above) 92, para. 92.98Mosetlhanyane & Others (n 63 above) 49, para. 102.
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
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”).
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.
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.
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
109 Sesana & Others (n 63 above) para. H1.2.110 Sesana & Others (n 63 above) para. 55.
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.
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).
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.
4.1.3 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.
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.
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
Bengal120 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 Delhi127 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 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.
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 & Others129 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
128 Ibid,529 B-F. 129 (2004) AHRLR 195 (LeCA 2004).
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
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.”
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 Leone133 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
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 177136 Shanti Star Builders v Narayan K Totame (1990) 1 SCC 249.
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
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’
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
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.
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 Coughlan142 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 141 Miamingi (n 108 above) 17.142 (2000) 2 WLR 622.
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 Viljoen143 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
generously144 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
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.
structural interdicts146 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.148Whilst 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
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 www.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.
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.
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.