Introduction The globalization of the world economy as well as the disparity in the standard of living and the level

of human security in different parts of the world have also been identified as factors contributing to international migration.[1] This migration is has brought along the notion of an alien which is generally understood to be a natural person who is not a national of the State in which he or she is present[2]. It is for this paper set out what the law is in regard to the rights and matters concerning aliens in foreign nations. Firstly the paper will provide how international law shapes the existence of the rights of states in relations to aliens. Secondly the limitations available to the exercise of rights possessed by states so far as aliens are concerned. Thirdly the paper will look at the position and practice in Botswana of the how aliens are treated their rights thereof against that of the state. Finally the paper will provide what model Botswana should follow in the wake of developments regarding rights of aliens.

The right to admit and expel aliens It is settled that the questions of the nationality of an individual depend upon the relevant rules of municipal law as well as international law[3]. This is a right possessed by States which is an essential element of its sovereignty[4]. An alien will usually not have the same rights and obligations as nationals. Unless prevented by its treaty obligations, a state is free to treat aliens less favorably than its own nationals[5]. On this point reference can be made to of the Convention on the Rights and Duties of States signed at Montevideo[6], which provides that nationals and foreigners are under the same protection of the law and the national authorities, and foreigners may not claim rights other than or more extensive than those of nationals[7].An alien admitted and within the territory of another State in accordance with its national law is considered to be lawfully present[8]. The general requirements for lawful presence may include the following: a valid passport or traveling document, compliance with the conditions for entry, and compliance with the conditions for continued presence[9].States are at liberty to exercise the right to require an alien to leave territory when his or her continuing presence is contrary to the interests of the territorial State. This execution of expulsion normally entails deportation, i.e. the coercive conveying of the alien out of the territory of the expelling State[10]. The states power to expel aliens rests upon the sovereignty of the state, its right of self-preservation, and its public interests. [11]. The Supreme Court of the United States in that respect held that: It is an accepted maxim of international law that every sovereign nation has the powers, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.[12]Confirmation of the existence of such a right to expel is further found in international treaties contain provisions regulating the expulsion of aliens. Article 13 of the International Covenant on Civil and Political Rights by its terms governs the procedural but not the substantive requirements for a lawful expulsion. The Human Rights Committee in its General Comment No. 15[13] interpreted the provision as a prohibition of arbitrary expulsions. Article 12.4 of the African Charter provides that a non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law which is understood as domestic laws of states Parties to the African Charter[14]. The African Commission on Human and Peoples Rights when addressing the specific situation of illegal immigrants from the perspective of their possible expulsion as provided that it does not question the right of any State to take legal action against illegal immigrants and deport them to their countries of origin, if the competent courts so decide[15]

Limitations

The entry, the presence, the treatment and the expulsion of aliens of an alien by a State must be in accordance with any relevant treaty obligations[16]and also national law and practice. This right or power is usually made in the form of a decision or order issued by the appropriate judicial or administrative body in accordance with its national law[17]. States do possess a considerable degree of discretion in exercising their right of expulsion [18] The Iran-United States Claims Tribunal pointed out that States, while respecting certain substantive and procedural limitations, enjoy wide discretion in exercising their right to expel an alien which is not absolute. It is the prevailing view that a State has wide discretion in expelling foreigners. Certain procedural and substantive minimum standards, however, are guaranteed under international law[19]. In South Africa Hiemstra CJ in Maluleke v Minister of Internal Affairs[20] held that: 'The admission of aliens into a country is a matter of prerogative vested in the sovereign power and the courts have no jurisdiction to overrule the exercise of the prerogative. Once prerogatives are embodied in legislation, the courts will take cognisance of such legislation. When interpreting such legislation the courts are entitled to take treaties into account, but only as a guide on doubtful points. Though the right to expel aliens is discretionary, it must be exercised in good faith. It must not be arbitrary, nor accompanied by unnecessary indignity or hardship. [21] Arbitrariness here is understood as willful disregard of due process of law, an act which shocks, or at least surprises, a sense of juridical propriety[22]. The Iran-United States Claims Tribunal has held that the claimant has the burden of proving the wrongfulness of the expulsion and it was in the Rankin vs. The Islamic Republic of Iran case, where the Tribunal stated as follows: A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling States action, in other words that it was arbitrary, discriminatory, or in breach of the expelling States treaty obligations. It is prudent to mention that the latter has elevated to a practice among most states.

The expulsion of aliens should be carried out in conformity with international human rights law. Various human rights may affected by the expulsion of aliens, such as the rights of the family, freedom of expression, and property rights[23]. International human rights jurisprudence on family unity is most fully developed thus far in the context of expulsion, that an individual can assert the right to family unity as a defense against deportation[24]. The right to family unity requires balancing the states interest in deporting the family member with the familys interest in remaining intact.[25]The expulsion of aliens should be carried out in conformity with international human rights law concerning freedom of expression[26]. In the Case of Piermont v. France,[27] the European Court of Human Rights considered that the expulsion of the applicant from French Polynesia had been a violation of her freedom of expression guaranteed by article 10 of the European convention on Human Rights and the Court reached the conclusion that a fair balance is necessary between, public interest and freedom of expression.

Treatment of aliens has gave rise to the notion of what constitutes the international minimum standard for the treatment of aliens. There exists a general consensus that states should not treat aliens in a grossly unfair manner violating basic human rights. In 1926, the United States-Mexico Claims Commission provided that the treatment of an alien, constituting an international delinquency, amounts to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency .[28] What is expected is to allow aliens to enjoy a minimum standard of rights under the general law of nations. This standard consists of certain fundamental rights, which are the recognition of juridical personality, standards of humane treatment, law-abiding procedures in cases of detention, the right of unobstructed access to court, the protection of life and liberty against criminal actions, the prohibition of confiscation[29]. Further in this regard it is provided International human rights norms and standards require states to provide non-nationals with the necessary forum to exercise their right to be heard before deporting them[30]. It has been suggested that the indeterminate content of the standard makes it difficult to apply in practice.[31] In contrast, the view has been expressed that the standard must be vague in order to apply to states having much room for interpretation because the variety of

administrative and governmental organization necessitates certain vagueness.[32]

It has been provided that the requirement of a valid ground for the expulsion of an alien may be viewed as a specific substantive requirement for the lawfulness of such an expulsion[33]. In the Lacoste Case[34], the need for a valid ground was stressed with respect to a situation involving foreign invasion. The duty may arise from international treaties[35]. It has been suggested that all valid grounds for expulsion are merely a reflection of some aspect of the public interest of the State[36]. Among others which states have recognized as valid grounds for the expulsion of aliens in treaty law, international jurisprudence, practice as well as literature is the presence of an alien which is contrary to the public order or welfare national security or public safety, illegal entry, breach of conditions for admission, public health[37].

Botswanas Practice

The Constitution of Botswana sets out rights to be enjoyed by persons in Botswana. The Constitution provides for freedom of persons within Botswana to move freely, enter and reside, as well as immunity from expulsion from Botswana[38]. It is observed that domestic law of Botswana, is held not to be inconsistent or in nonconformity with the provisions to the Constitution where they make provision for the imposition of restrictions of freedom of movement on persons not citizens of Botswana[39]. The Botswana Immigration Act is the embodiment providing for the entry, the presence, the treatment and the expulsion of aliens. The act prescribes the conditions and procedure for the entry of persons into Botswana and also their departure at Section 4 and 5. It then provides that persons who are prohibited immigrants shall not enter or remain in Botswana and who is a prohibited immigrant[40]. Among the provisions in section 7 is the subsection F worth note, which provides that any person who, in consequence of information received from any source deemed by the President to be reliable, is declared by the President to be an undesirable inhabitant of or visitor to Botswana is a prohibited immigrant. It is provided that there is no right to be heard before or after a decision is made by the President under the Act that no court shall question the adequacy of the grounds for any such declaration by the President[41]. There is also no right to demand any information as to the grounds of such decision nor shall any such information be disclosed in any court. It is thus deemed to be a valid ground to declare an individual a prohibited immigrant, if done by the President of Botswana. The President may make an order requiring any alien to leave Botswana if the President deems it to be conducive to the public good to make a deportation order in respect of that alien[42]. The powers exercised by the President under the act are discretional[43].

The above sections were put to test in two cases by the cases CHIAMONWU v THE ATTORNEY-GENERAL[44] and GOOD v THE ATTORNEY-GENERAL[45]. In the latter a declaration by the president was issued against the appellant Kenneth Good an Australian national and a former University of Botswana declaring him an undesirable inhabitant of or visitor to Botswana and the president in issuing or making the declaration was acting under the powers vested in him by of the Immigration Act[46]. The appellant's application to the High Court to have the decision of the president set aside was dismissed and he appealed to the Court of Appeal. It was argued on appeal on his behalf that the president failed to apply his mind properly to all the facts and the law and had acted irrationally in making his decision to declare the appellant a prohibited immigrant. It was further argued that ss 11(6) and 36 of the Act were ultra vires the constitution for curtailing the right to protection of the law under section 3 of the constitution. The Court of Appeal held in that case, inter alia, that in not giving the appellant a hearing before making the decision the president had acted within the provisions of the act and

that the appellant had no right to demand any information as to the grounds or reasons for the president's decision to deport him; and further that his right to be heard in regard to the decision made by the president, which no doubt affected him adversely, had been ousted by s 36(1) of the Act. It was further held that the president had been entrusted by parliament to make the necessary decision required by s 7(f) of the Act; and by implication that it was only parliament and not the courts which could take away or modify that power[47]. TEBBUTT JP when acknowledging that the provisions of the act are wide, made mention that they relate to the public good or to the peace and security of the country and are obviously aimed at the preservation thereof and they preclude a person in relation to whom such a Presidential decision has been made having a right to be heard before that decision was made. It was further stated that reliance on treaties and conventions regarding the rights of aliens do not confer enforceable rights on persons within the state until parliament has legislated their relevant provisions into the law of the land[48]. TEBBUTT JP held as follows The decisions of the President in making such declarations as he is empowered to make under the Act must obviously relate to what he considers to be in the best interests of Botswana. Parliament has decreed that the information and grounds on which he made his decisions are not subject to disclosure and I cannot find that it acted ultra vires the Constitution in doing so[49]. It was held that the protection of the law in s 3[50] is subject to such limitations as were contained in the domestic laws of Botswana which are necessary in the public interest. The court further noted that public interest in that regard would include the peace, and stability of the country, the well-being of the people and national security. In contrast LORD COULSFIELD JA suggested that some consideration ought to be given to the repeal or amendment of s 36(2) of the Immigration Act. His Lordship held that s 36(2), as so interpreted, amounts to an undue interference with the 'protection of the law'[51]. His Lordship provided that the effect is that a person subjected to deportation as an undesirable inhabitant may be denied the opportunity to know why he is being deported, even when the disclosure of the reasons could do no harm to the public interest. His Lordship went further to provide that giving reasons may help to protect the maker of the decision from speculative and unfounded criticism. The Good case then went before the African Commission which made recommendations that Botswana should takes steps to ensure that Sections 7(f), 11(6) and 36 of the Botswana Immigration Act and its practices conform to international human rights standards, in particular, the African Charter. The commission made salient observations when reaching it decision and it thus held that there is a right to receive information and reasons, especially where that information is relevant in a trial for the vindication of a right. Such right forms part of the right to a fair trial. The Commission pointed out that withholding such information could compromise court proceedings and put at risk the right of fair trial of the victim. A conclusion was reached that the arrangements voiced by section 36 1 do threaten the independence of the judiciary. We find that the Commission conceded that it makes a mockery of justice and the rule of law for a person legally admitted to a country to all of a sudden be told to leave against his will and he/she is not given reasons for the expulsion. It was further held that the refusal of the Courts to review the Presidents decision foreclosed any avenue available to the victim to seek remedy since there is no competent national judicial organ in Botswana, to hear a case that has been given that power by law and has jurisdiction over the subject matter and the person. As rightly observed by the Commission, both the High Court and the Court of Appeal have not been given that power on grounds that they do not have jurisdiction over the subject matter[52]. The commission further referred to one of its decision of Constitutional Rights Project v Nigeria[53], where it then stated that it is dangerous for the protection of human rights for the executive branch of the government to operate without such checks as the judiciary can usually perform.

In the case of Chiamonwo the High Court also had occasion to apply its mind to the question of the legal effect of section 7(f) and 36 (1) of the Immigration Act. Dibotelo J following the Court Of Appeal in Good case held the applicant has no right to be heard as he has been declared a prohibited immigrant by the president in terms of s 7(f) of the Act and he cannot therefore institute

any proceedings to review and set aside the decision that has been made by the president. Analysis of the Good and Chiamonwo cases bring the conclusion that the court in Botswana are not ready to balance individual rights against the states interest, in a way which will protect fundamental rights inscribed in the Constitution. It is unfortunate that Botswana courts are essentially powerless when regard is made to provisions of the Immigrations Act which ousts their substantive jurisdiction. Both judgments show that courts are reluctant to hold that the right to fair trail is indeed curtailed by the act and the judgments further reflect a blind eye towards encouraging checks and balances necessary to curb any form of anomalies of abuse of power and injustice by the President[54].

CONCLUSION When one considers the position adopted in the African Commission[55] it becomes inevitable to invoke the impeccable reasoning employed by the Commission that the practice and law in Botswana so far as deporting aliens is concerned is calamitous. There is violation not only the right to fair trial by withholding of information also undermining judicial independence in Botswana which courts strive to nature as observed by Nganunu C J as he then was in State v Maunge[56], where he maintained that judicial independence concept was meant to uphold the idea of democracy. Botswana as a democratic state needs to uphold the rule of law which is in touch with and has at its center natural justice. Human rights violations on aliens should be a thing of the past considering the global era we exist in where peace, respect and cooperation is a value shared between states for the betterment of their respective nationals .

SELECTED BIBLOGRAHY CASES Attorney-General for Canada v Cain 1906 AC 542

African Commission on Human and Peoples Rights, Communication No. 159/96

Communication 313/05, Kenneth Good v Republic of Botswana, 28th Activity Emeka vs Minister of Home Affairs and 2 Others 2571/2011 [2012] SZ HC 3

Elettronica Sicula S.p.A. (ELSI) (United States v. Italy), Judgment, I.C.J. Report 1989

Fonng Yue Ting v United States 149 US 905

Lacoste v. Mexico (Mexican Commission), Award of 4 September 1875,

Neer (U.S.A) v. United Mexican States, General Claims Commission, Award of 15 October 16,

Maluleke v Minister of Internal Affairs 1981 (1) SA 707 (B)

Piermont v. France, Judgment (Merits and Just Satisfaction), 27 April 1995

Rankin vs. The Islamic Republic of Iran

Yeager v. The Islamic Republic of Iran, Iran-United States Claims Tribunal, Award of 2 November 1987, Iran-United States Claims Tribunal Reports, vol. 17

NATIONAL CASES

Attorney-General v. Dow [1992] B.L.R. 119 C.A.

Chiamonwu v The Attorney- General 2007 (1) BLR 731 (HC)

Good v The Attorney-General (2) 2005 (2) BLR 337 (CA.

State v Maunge 1972 (1) BLR 6 (HC)

TABLE OF INTERNATIONAL CONVENTIONS International Covenant on Civil and Political Rights Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights Convention on the Rights of the Child African Charter of Human and Peoples Rights

STATUTES

The Constitution of Botswana Immigration Act of Botswana BIBLOGRAPHY

Amsterdam, 1992 Encyclopedia of Public International Law , vol. 1, Elsevier Science Publishers

Andreas Hans Roth, 1949 The Minimum Standard of International Law Applied to Aliens, Thse, Universit de Genve/Institut universitaire de hautes tudes internationales, La Haye, A. W. Sihthoffs Uitgeversmaatschappij N.V

Anthony Aust 2005, Handbook of International Law, London School of Economics and Kendall Freeman Solicitors,Cambridge University Press

Atle Grahl-Madsen, The Status of Refugees in International Law; Asylum, Entry and Sojourn, vol. II, Leiden, A. W. Sijthoff, 1972

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Cambridge, Grotius Publications Limited, 1987

Edwin M. Borchard, Minimum Standard of The Treatment Of Aliens, 38 Michigan Law Review 445 (1940)

Edwin M. Borchard, 1915, The Diplomatic Protection of Citizens Abroad or the Law of International Claims, New York, The Banks Law Publishing Co

General Comment No. 15: The Position of Aliens under the Covenant, 11 April 1986.

Guy S. Goodwin-Gill, 1978, International Law and the Movement of Persons between States, Oxford, Clarendon Press

Hon Justice O.B.K Dingake, Separation Of Powers In Botswana, 2009 (unpublished)

Report of the Global Commission on International Migration, October 2005, Migration in an interconnected world: New directions for action synopsis

Memorandum by the Secretariat of International Law Commission Expulsion of aliens,2006 A/CN.4/565 Paul Weis, 1979 Nationality and Statelessness in International Law,2nd ed., Alphen aan den Rijn, Sijthoff & Noordhoff,

R.C. Chhangani, Notes and Comments. Expulsion of Uganda Asians and International Law, vol. 12, 1972

3rd report by Maurice Kamto, Special Rapporteur 2007, THE EXPULSION OF ALIENS,,, A/CN.4/581

The Hague, 2003 Migration and International Legal Norms, T.M.C. Asser Press,

[1] Migration in an interconnected world: New directions for action, Report of the Global Commission on International Migration, October 2005, synopsis, p. 1, paras. 1 and 2. [2] Andreas Hans Roth, The Minimum Standard of International Law Applied to Aliens, Thse, Universit de Genve/Institut universitaire de hautes tudes internationales, La Haye, A. W. Sihthoffs Uitgeversmaatschappij N.V., 1949 [3] Memorandum by the Secretariat of International Law Commission Expulsion of aliens,2006 A/CN.4/565 SEE ALSO THE EXPULSION OF ALIENS,, 3rd report by Maurice Kamto, Special Rapporteur 2007, A/CN.4/581 [4] Paul Weis,Nationality and Statelessness in International Law,2nd ed., Alphen aan den Rijn, Sijthoff & Noordhoff, 1979, p.65. [5] Anthony Aust 2005, Handbook of International Law, London School of Economics and Kendall Freeman Solicitors,Cambridge University Press [6] Article 9 [7] EDWIN M. BORCHARD, Minimum Standard Of The Treatment Of Aliens, 38 Michigan Law Review 445 (1940) [8] Memorandum by the Secretariat of International Law Commission Expulsion of aliens,2006 A/CN.4/565 SEE ALSO THE EXPULSION OF ALIENS,, 3rd report by Maurice Kamto, Special Rapporteur 2007, A/CN.4/581 [9] Atle Grahl-Madsen, The Status of Refugees in International Law; Asylum, Entry and Sojourn, vol. II, Leiden, A. W. Sijthoff, 1972, pp. 347-348. [10] Encyclopedia of PublicInternational Law,Amsterdam, Elsevier Science Publishers, vol. 1,

1992 [11] Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims, New York, The Banks Law Publishing Co., 1915, p. 48 see further Attorney-General for Canada v Cain 1906 AC 542 [12] Fonng Yue Ting v United States 149 US 905 [13] General Comment No. 15: The Position of Aliens under the Covenant, 11 April 1986. [14] Communication 313/05, Kenneth Good v Republic of Botswana, 28th Activity Report para 193.b [15] African Commission on Human and Peoples Rights, Communication No. 159/96, [16] Guy S. Goodwin-Gill, International Law and the Movement of Persons between States, Oxford, Clarendon Press, 1978, p. 310 SEE further Article 13 of the International Covenant on Civil and Political Rights An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law . [17] Memorandum by the Secretariat of International Law Commission Expulsion of aliens,2006 A/CN.4/565 [18] As above [19] Yeager v. The Islamic Republic of Iran, Iran-United States Claims Tribunal, Award of 2 November 1987, Iran-United States Claims Tribunal Reports, vol. 17, pp. 92-113. [20] 1981 (1) SA 707 (B) [21] Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Cambridge, Grotius Publications Limited, 1987, p. 36 [22] Elettronica Sicula S.p.A. (ELSI) (United States v. Italy), Judgment, I.C.J. Report 1989 [23] Memorandum by the Secretariat of International Law Commission Expulsion of aliens,2006 A/CN.4/565 [24] The principle of family unity has been recognized in a number of international and regional instruments, including the 1948 Universal Declaration of Human Rights Article 16(3); the International Covenant on Civil and Political Rights Article 23; the International Covenant on Economic, Social and Cultural Rights Article 10; the Convention on the Rights of the Child Article 9; the African Charter of Human and Peoples Rights Article 18 [25] Migration and International Legal Norms, The Hague, T.M.C. Asser Press, 2003, pp. 185201, at p. 191 [26] the International Covenant on Civil and Political Rights Article 19; the African Charter of Human and Peoples Rights Article 9 [27] European Court of Human Rights, Case of Piermont v. France, Judgment (Merits and Just Satisfaction), 27 April 1995 [28] Neer (U.S.A) v. United Mexican States, General Claims Commission, Award of 15 October 16, [29] Rainer Arnold, Aliens, in Rudolf Bernhardt (dir.), Encyclopedia of Public International Law ,

Amsterdam, Elsevier Science Publishers, vol. 1, 1992, pp. 102-107, at p. 105. [30] Communication 313/05, Kenneth Good v Republic of Botswana, 28th Activity Report para 193.b [31] R.C. Chhangani, Notes and Comments. Expulsion of Uganda Asians and International Law, vol. 12, 1972, pp. 400-408, at p. 404 [32] Andreas Hans Roth, The Minimum Standard of International Law Applied to Aliens, Thse, Universit de Genve/Institut universitaire de hautes tudes internationales, La Haye, A. W. Sihthoffs Uitgeversmaatschappij N.V., 1949 [33] secrotariat [34] Lacoste v. Mexico (Mexican Commission), Award of 4 September 1875, [35] Article 13 of the International Covenant on Civil and Political Rights SEE ALSO Aliens, Expulsion and Deportation, in Rudolf Bernhardt (dir.), Encyclopedia of Public International Law , Amsterdam, Elsevier Science Publishers, vol. 1, 1992, pp. 109-112 [36] Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims, New York, The Banks Law Publishing Co., 1915, p. 51. [37] EDWIN M. BORCHARD, Minimum Standard Of The Treatment Of Aliens, 38 Michigan Law Review 445 (1940). [38] Section 14(1) of the Constitution Of Botswana [39] Section 14(3) of the Constitution Of Botswana [40] section 9and 7 [41] section 11 sub 6 [42] section 25 [43] section 36 [44] 2007 (1) BLR 731 (HC [45] (2) 2005 (2) BLR 337 (CA [46] s 7(f) [47] The holding was followed in the recent High Court of Zwaziland case of Emeka vs Minister of Home Affairs and 2 Others 2571/2011 [2012] SZ HC 3 [48] Tebbut JP see also Dow v Attorney General [49] p362 [50] Constitution [51] Section 3 constituion [52] Communication 313/05, Kenneth Good v Republic of Botswana [53] Communication 143/95, 150/96 Constitutional Rights Project and Another v Nigeria (1999)

[54] Hon Justice O.B.K Dingake, Separation Of Powers In Botswana, 2009 (unpublished) [55] No 50 above [56] 1972 (1) BLR 6 (HC)