Nigerian medic to know his fate today

BAME PIET
Staff Writer | Friday April 13, 2007 00:00

 

'Presidential declarations cannot be challenged in court,' he said. Keetshabe added that Henry has failed to state why his case should be heard. He termed the Nigerian as a confused person who does not know the remedy he is seeking from the court. He said the application has no legal basis because the law states clearly that the President can decide who is an undesirable inhabitant/prohibited immigrant. He said procedures were followed when the Nigerian was declared a Prohibited Immigrant (PI).

  

However, Justice Maruping Dibotelo drew Keetshabe's attention to Henry's affidavit where he (Henry) stated that he was not served with a copy of the Presidential Declaration. Dibotelo stated that it would have been correct and more transparent if immigration officers had given the copy to Henry. 'Why are they hiding it away from him because it is not their decision?' Dibotelo enquired.

 

Keetshabe responded that there is no provision in the law that states that a Prohibited Immigrant should be served with a copy of the Presidential Declaration. 'Nothing was being hidden, unfortunately it has been the practice for sometime,' he replied.  Keetshabe acknowledged that it would have been better if Henry had been served with a hard copy. The court heard that immigration officers showed the Presidential declaration to the Nigerian and gave it to him to read. After this he was handcuffed, leg-shackled and thrown into police cells.

 

Dibotelo insisted that showing somebody a copy does not amount to service.  Keetshabe argued that what is critical is that Henry had been notified that he is a PI. He dismissed the application saying that Henry failed to notify the Attorney General's Chambers in time about his intentions to go to court. 'The Respondent (Attorney General) has substantial interest and ought to be given notice by the applicant so that they can prepare to oppose such application,' he argued. He  emphasised that the application was 'grossly irregular and improper'.

 

He said that Henry has failed to demonstrate that he is going to suffer prejudice and irreparable harm. He concluded that the medic has a right to challenge the presidential decree while he is outside the country. 

Henry's lawyer, Batlhalefi Moeletsi stated that the court has jurisdiction over the case.  He said that the Immigration Act does not exempt the High Court from examining the presidential decree. 

 

He said that his client was not served with the decree and does not know its contents and whether it is valid.  He argued that Henry should be given an opportunity to plead with the President to review his declaration and whether such declaration was made in conformity with the Constitution.  He stated that it is important for the court to review the declaration to examine whether or not the President was not abusing his powers. 

 

Moeletsi cited the 2005 deportation of former University of Botswana lecturer Professor Kenneth Good. He said that the Court of Appeal accepted that cases of this nature can be challenged on judicial grounds - illegality, irrationality and procedural impropriety. He stated that his client has demonstrated that there is nothing to declare him a PI and that the court is the right place where he can have his case heard.  'Presidential decree is open to challenge,' stated Moeletsi.

 

His added that the acting President Ian Khama made the declaration while in the same affidavits the state says that it is the President himself who made the declaration. He argued that Mogae is the only President known to the public and there is no proof that Khama has been authorised to act on his behalf.  Moeletsi insisted that his client should be given an opportunity to present his case to the President to deny any allegations made against him. He said Henry is going to suffer irreparable damage because he has investments in Botswana, a family and a house.  He added that his client has gathered information that he wants heard to determine whether he should be deported. Henry was served with the deportation order on April 2 after he was declared PI.  He is still in police custody.