128. By reiterating Botswana’s obligation to protect the family, the Complainants argue that any
interference with the right to family can only be justified by a complete absence of any real pressing
social need to expel the victim from Botswana, and the Respondent State has not shown that the
victim’s expulsion could be justified by a pressing need to protect public order or national security.
129. The Complainants recall that the victim had been a law abiding resident for 15 years and had
played an important role in bringing up his daughter. Despite this fact, there is no indication that the
impact of the expulsion order on him or his daughter and their family life was in any way taken into
account, still less minimised, by authorities when they deported him. On the contrary, the Respondent
State denied him an opportunity to finalise arrangements for his daughter before being expelled, as he
was arrested immediately after the High Court’s decision and expelled later that day. The hasty way of
his deportation, in the circumstances of the case, according to the Complainant, amounted to a
gratuitous interference with his right to family life.
Alleged Violation of Article 2
130. The Complainants claim that the crux of the case lies in the fact that the victim held and
expressed political views that were critical of the political establishment in the Respondent State, and
specifically of presidential succession. They submit that had it not been for the nature of his political
opinions, his rights under the Charter would not have been violated, adding that his political views
singled him out for discriminatory treatment at the hands of the authorities.
131. They aver that the victim did not hold a position where he had access to sensitive material of
potentially damaging nature to national security and he was not required to adopt a politically neutral
position as, perhaps a civil servant may have been, and even in such cases, it has been held that
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such differential treatment is generally not acceptable .
132. The Complainants in conclusion urge the Commission to adopt strict scrutiny of discrimination
on the grounds of political opinion, given that pluralism and diversity are fundamental ingredients of
any democratic society. They further urge the Commission to demand very weighty reasons to be
given to justify different treatment on the basis of political opinion, by taking into consideration that no
reasons have been provided by the Respondent State in this matter.
133. The Commission notes that the arguments raised in the amicus curiae brief submitted by the
Centre for Human Rights of the University of Pretoria are already reflected in the submissions of the
Complainants.
Respondent State’s Submissions on the Merits
134. The Respondent State submits that the victim at no stage during the proceedings at the High
Court of Botswana or before the African Commission alleged bad faith on the part of the Government
of Botswana, but merely attacks the process by which he was declared a prohibited immigrant.
135. The State contends that the essence of the Complainants’ argument is the failure of the
Government of Botswana to abide by its treaty obligations, which taken to its logical end, implies bad
faith on the part of the government. Though not disputing the commitment of the Charter to human
rights, the Respondent State contends that this does not imply a blanket application of the principle
of pacta sunt servanda under international law as provided in Article 26 of the Vienna Convention of
the Law of Treaties which provides that
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith”.
136. According to the Respondent State, the exception to this principle is that no automatic duty
attaches to parties, more specifically Botswana, to carry out all the provisions of the Charter. They
aver that when States concluding an agreement do not have in mind the creation of legal obligations,
but aim only to declare some common intent, the principle of pacta sunt servanda does not apply.
137. In support of its argument, the Respondent State submits that a close scrutiny of
paragraphs 3 , 4 and 10 of the preamble to the African Charter reveal that parties did not intend
creating legal obligations in drawing up the Charter.
138. The Respondent State further states that Botswana is a sovereign State guided by principles of
democracy and has since independence striven to protect, maintain and promote human rights values,