The Botswana Centre for Human Rights filed an affidavit before the High Court of Botswana.
This was in support of an application made by refugee Caprivians from Namibia, Felix Kakula and 732 others, who seek the court to order the government to retain their refugee status in Botswana.
DITSHWANELO believes that it would be unsafe for their refugee status to be removed (cessation clause) before the applicants are fully and formally informed of the outcome of the report of the “GO AND SEE, COME AND TELL” Mission of 2015.
The “GO AND SEE, COME AND TELL” Mission was arranged by the UN Office of the High Commissioner for Refugees (UNHCR). A delegation, including some of the affected refugees, the Government of Botswana and the Botswana Council of Churches (BCC), visited Namibia to assess whether the environment is conducive for repatriation, prior to the return of the refugees to Namibia.
However, around 1 July 2015, the Governor of Zambezi Region, (formerly the Caprivi Strip) abruptly ended the mission, due mainly, to differences of opinion between the refugees and himself.
DITSHWANELO opposed the implementation of the cessation clause on 31 December 2015, because it would have resulted in:
l Either the applicants remaining in Botswana as undocumented migrants (once their refugee status had been removed) and consequently subject to deportation and /or being declared Prohibited Immigrants. This recently occurred in the case of two Ugandan refugees; or
l The refoulement of the applicants. In accordance with the 1951 UN Convention Relating to the Refugees (which Botswana ratified in 1969) and the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa (which Botswana ratified in 1995), refugees are protected against refoulement. This is the return to a territory where a refugee may face the risk of persecution.
DITSHWANELO is concerned that there has been no evidence that the environment in Namibia, politically and otherwise, in relation to the applicants, has been adjusted in a manner or fashion which would have dispensed with what the Honourable Court, during the 2000 Extradition case, found to exist at the time. Suspected members and supporters of the banned United Democratic Party (UDP) faced persecution.
There is also concern that once returned, they will face prosecution for alleged political offences committed in Namibia prior to their fleeing to Botswana to seek refuge in 1999.
DITSHWANELO is further concerned that it, itself, has not had sight of the report of the “GO AND SEE, COME AND TELL Mission, conducted during 2015. Our assessment of the socio-political environment is based on reports from returnees and Human Rights organisations operating in Namibia.
The reports suggest that there are instances of persecution. On 9 December 2015, some of the Botswana returnees were found guilty of treason, sedition and attempted murder, and sentenced to imprisonment. This, after an impression had been created that it was acceptable to return to Namibia.
At the time of the application in December 2015, the applicants had, themselves, not had sight of the said report.
This made it impossible for them to use it to make an informed decision about whether or not it would be safe for them to return to Namibia.
They are effectively being denied the right to participate in a process which has or may have a direct bearing on them, with potentially adverse consequences.
DITSHWANELO is convinced that presently it would be unsafe and not in the best interests of the refugees, for the cessation clause to be effected, before the applicants are fully informed of the outcome of the report of the “GO AND SEE, COME AND TELL” Mission. On 4 January 2016, the High Court ordered, among others, that the Botswana government shall not deport the refugees; the government should provide the Namibians with a copy of the tripartite commission report for the “GO AND SEE, COME AND TELL” Mission of July 2015; and written reasons as to the government’s decision to revoke their refugee status in the country is made available to the court, by 26 February 2015.