ANCL-RADC ANNUAL CONFERENCE – ‘The Internationalisation of Constitutional Law’ Rabat, Morocco, 2011-01-20

WORKING PAPER

Please do not use this paper without contacting the author on: dinoksbr@yahoo.com

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.