Refugees win illegal detention case
Lebogang Mosikare | Friday April 21, 2017 17:32
The petitioners’ attorney, Morgan Moseki had filed an urgent application before Justice Zibani Makhwade saying that many of the detainees have been held at the centre for as long as seven years without a word from their custodians.
“…The more pathetic one is of the inhumane conduct of keeping children of school-going age locked up with their parents without being afforded education, which moulds a person. What kind of society would do that to people who ran away from troubled and conflict-ridden nations thinking we would provide a safe haven for them and we only turn out to be the villains?” Moseki said.
Moseki added that Government is not denying that children as young as five years-old are detained with adult males in prison.
He described that as being akin to the state flagrantly thumping its fingers into the eye of one of the Vision 2016 pillars of ‘A compassionate and caring nation’.
In the Juma Mlawa, Idi Ally, Reuben Chamba and Clerpaton Mathema case, who had been recognised in terms of the Refugees (Recognition and Control) Act, but whose recognition was revoked, Makhwade said the issue at hand was whether the applicants have been lawfully detained and thus should be released from detention.
Makhwade stated that the Attorney General representing the Department of Immigration and Citizenship said that since the petitioners are no longer recognised refugees, they are therefore undesirable immigrants and there is justification for their continued detention.
“The respondent has not provided any material to show that the petitioners have been issued with deportation orders. Similarly, the respondents have not produced any documentation as provided for under Section 51(1) of the Immigration Act that an immigration officer determined that any of the petitioners are undesirable immigrants,” Makhwade noted.
The same reasoning applied in case UAHFTOOOOO3-17 in relation to the legality of the detention of the petitioners therein applies with equal force to these petitioners, Makhwade said.
The above stated case involves Mohamed Mire and Salad Sabriye who were also questioning the legality of their detention at the FCII since 2015 after their application for refugee was rejected.
“The reasoning in the judgement in that case applies with equal force to this case. It is my considered view that the petitioners are in unlawful detention. It is not for this Court to make a determination on the conditions of their release. It is ordered that each of the petitioners be released from custody forthwith and that the respondent pays the petitioners costs,” Makhwade concluded.
In another case involving Amina Hirsi, a Somali woman who Makhwade also recently ordered should be released from detention forthwith, the Court said the respondent has not been able to justify why she should be detained.
The Judge said it was common cause that she entered Botswana without the necessary travel documents and handed herself to authorities seeking refugee status.
When the petitioner arrived in Botswana in 2005, Makhwade noted, she claimed that she had travelled from Kenya to join her husband, who it is common cause is a recognised political refugee in Botswana.
“She was taken to the FCII and because authorities suspected she was a victim of human trafficking, they decided to remove her from FCII to a woman’s shelter in Gaborone. Whilst at the shelter, she managed to sneak out and travelled to Francistown where she met the alleged trafficker whom she says is her husband and as a result fell pregnant,” Makhwade said.
It is alleged that, Makhwade said, because the women’s shelter does not keep expectant women, she was removed from the shelter and sent back to FCII.
“The petitioner has approached this Court and prays for an order that she should be released from detention and be allowed to reside at Dukwi Refugee Camp with her alleged husband.
The respondent on the other hand says that the reason why she is kept at FCII is that a determination is yet to be made on her application for recognition as a political refugee,” Makhwade said.
In the papers filed on behalf of the respondent, Makhwade said, it appears as if she is kept for purposes of giving evidence against the alleged human trafficker.
“What is clear and must be reiterated is that the Constitution of Botswana guarantees every person, regardless of citizenship, the right to liberty unless the same has been taken away in terms of the law. To this there is no short cut. It is also trite that where the person’s liberty has been taken away, it is the person who took away the liberty who has a duty to justify such liberty has been taken away in terms of the law,” Makhwade said.
“That being the case, the petitioner is entitled to her liberty and the respondent will have to determine what to do with her in terms of the law. It is not for this Court to make a determination as to whether or not the petitioner be recognised as a political refugee. It is also not for this Court to make a determination as to whether or not the petitioner should be allowed to stay in this country, where she should stay and conditions that should be pertaining her stay in the country. There are authorities who are mandated by law to do so and this Court can only interfere in a case that is properly before the Court,” Makhwade said.