critical academic comments on matters of the political governance of a State are an essential element of, and not a threat to democracy and security. The Complainants add that even if the case did in fact raise national security issues, the Respondent State’s assertion that executive decisions about national security are outside the scope of domestic or regional judicial review lacks support in the African regional human rights system. They contend further that although legitimate security concerns ought to be taken into account in interpreting the Charter, it must not erode the essence of the rights protected by the Charter including Article 12.4. They further state that the jurisprudence of the Commission has been to the effect that the rights contained in the Charter are non-derogable, thus even threat of war, international or national, political instability or any other kind of emergency, cannot 26 be invoked to justify any derogation from the right to fair trial . 155. The Complainants submit that the State selectively and wrongly relies on decisions of the English Courts in support of its assertion that national security matters are not decisions for the courts, adding that subsequent decisions to those cited by the Respondent State, for example A(FC) & Others 27 28 v Secretary of State and Secretary of State for Home Department v JJ and FC and Others have found that the British Government’s response to national security issues, especially its response to terrorism amounted to a violation of human rights. They add that contrary to the conclusions drawn by the Respondent State that the judiciary must turn a blind eye to executive decisions on national security issues, these recent cases of the British House of Lords, emphasise the increased importance of the courts in such instances. They cite the decision of the Supreme Court of Canada in Charkaoui v 29 Canada where it was held that the principle of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process. Therefore, they assert that while domestic law and practice may vary from State to State, the Respondent State’s arguments as to the practice of national courts cannot withstand scrutiny. 156. With regards the Respondent State’s contention that the refusal to disclose the grounds relating to the desirability of a person’s presence on national security grounds is based on the public interest, the Complainants submit that were the present case based on genuine national security issues, there are several measures which could have been taken to guarantee the right to fair hearing without necessarily precluding all judicial oversight. The Complainants argue that less intrusive measures as private sessions, provisions of a “judicial peep”, redaction, limited access as a means of protecting sensitive information and evidence are often used, and could have been used by the Government of Botswana in the instant case. 157. By refusing to consider the basis of the President’s decision and invoking national security as a ground for non-disclosure of information, which led to the victim’s expulsion, the Complainants aver that the Government unlawfully divested the courts of any role in the judicial process. 158. The Complainants conclude by stating that national security may not be used to shield State action from the necessary scrutiny and accountability. Whilst conceding that extreme security measures may be necessary in extra ordinary circumstances, the test of determining whether such measures are warranted must be subject to meaningful judicial oversight to protect the fundamental right of due process of the individual concerned and the rule of law. The Commission’s decision on the merits 159. In this communication the African Commission is called upon to determine whether the expulsion of the victim by the Respondent State following the President’s invocation of the powers invested in him in a domestic legislation – the Botswana Immigration Act – is a violation of the victim’s rights guaranteed under the African Charter, in particular, the rights guaranteed under Articles 1, 2, 7(1)(a), 9, 12(4) and 18 as alleged by the Complainants. The Commission will accordingly proceed to analyse each of the articles of the Charter alleged by the Complainants to have been violated by the State. Alleged Violation of Article 7(1)(a) 160. The Complainants submit that the decision of the President to expel the victim from the country relying on Sections 7(f), 11(6) and 36(a) of the Botswana Immigration Act, and the decisions of both