On the same day that the Nigerian Government banned the Islamic Movement of Nigeria, a Botswana Court unbanned a Nigerian citizen from its country.

In a scintillating judgment, the Botswana Court of Appeal overturned that country’s President’s deportation order on a successful Nigerian businessman in what is seen as a major triumph for the rule of law in that country.

Instigated by vendetta of business rivals, Mr Paul Ogbole, a Nigerian businessman, had been ordered removed by the President since last year. Trouble started for Ogbole, a lab scientist by training and an active member of Dunamis Church, when he was arrested and accused of running a church in his house.

The legal action he instituted and won was appealed against by the nation’s Attorney General. However, on Friday in a unanimous decision, the nation’s court of appeal reaffirmed his victory at the lower courting revoking his deportation order and dismissing the Attorney General’s appeal.

Reacting to the judgment on Saturday, Washington-based international human rights lawyer Emmanuel Ogebe stated: “It is an excellent judgment and a delight to read. The judge was highly learned, resilient and well informed. From the points he made about Botswana aiming to be an investor-friendly and knowledge-based economy so that should be taken into account in the interpretation of the amendments to the immigration laws, it is clear the court was interested in substantive justice that moves the nation forward and not just technicalities. This is superb and should be a lesson to Africa.”

ANALYSIS by Emmanuel Ogebe

My takeaways from the judgment in light of our situation in Nigeria is as follows:

1. The appeal court rejected the suo moto action of the trial judge to claim that the signature of the Botswanan president was forged. The ruling held that the presumption of regularity applied and evidence needed to have been taken to prove the falsity of the signature. Given this clear reasoning, the recent Nigerian Supreme Court decision in the Osun State case is defective as the court failed to honour the presumption of regularity that the tribunal indeed sat in quorum and secondly that the Supreme Court failed to take evidence on whether the tribunal judge was there or not or simply forgot to sign.

2. The appeal court rightly refused to completely accept an ouster clause of the court’s jurisdiction. It argued that a court must still examine whether the prerequisites or conditions precedent to the exercise of the executive action not to be challenged were first met before it can legitimately be untouchable. In so doing the court utilised the raison d’etre in the Ladoja impeachment case in Oyo State where the Nigerian court of appeal in a landmark decision said while the court lacked jurisdiction to inquire into an impeachment, it could not shut its eyes into the process leading to the impeachment. In that instance, assembly members meeting in a hotel to impeach the governor did not constitute a lawful impeachment per Justice James Ogebe (JCA as he then was)

3. Similarly the court holds that the president’s powers are not completely unchecked. The president has to justify the use of his powers to deport an immigrant even with respect to national security! The court said the president should have deposed to an affidavit to establish that he exercised his power judiciously and not capriciously to the satisfaction of the court. This is highly relevant to the atrocious conduct of the Buhari administration in deposing a Chief Justice of Nigeria. Clearly this Botswana Court would have overturned the dubious judgments of the Code of Conduct Tribunal and unjust removal of Chief Justice Onnoghen. Mr Paul Ogbole is fortunate that his case was tried in Botswana and not in his home country. No wonder Botswana is way ahead of us. And to think Nigeria used to lend them judges shows how badly our institutions have fallen and our systems desecrated.

4. Finally the court would have frowned at anyone who said he disobeys court orders to release a citizen for national security reasons. Even for the deportation of an alien, the president needed to show reasonability! The court opined that Mr Ogbole had been on bail for over a year living peacefully which meant he was clearly not a security threat. It is beautiful to see such scintillating reasoning!

The needless detention of El-Zakzaky and the banishment of the Shiite by an Abuja court order yesterday on the same day that a Nigerian citizen was unbanned in Botswana shows the utter mess Nigeria has become.

Botswana has shown itself a beacon of light in Africa not only in stability, economic development and prosperity but also in the rule of law. This is precisely why they are growing.

Only a mad person will invest in a country that doesn’t obey court orders and arrests and removes judges arbitrarily and unlawfully detains its citizens.

The same former President Mogae who has been invited to Nigeria to lecture on how Botswana became successful is also the one whose deportation order was revoked.

You will not hear that the AG of Botswana decided to disobey the court order. We are meant to practice rule of law not rule of animal farm. This is what this administration doesn’t understand in competition for Foreign Direct Investment.

South Africa should similarly learn from Botswana and desist from xenophobic attacks.”

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