Botswana�s treatment of foreigners under the microscope
Lebogang Mosikare | Friday May 19, 2017 12:10
The country has been a sanctuary to many foreigners who fled their countries because they were persecuted for political, religious and other factors.
Botswana has given refugee status to thousands of refugees from countries such as Burundi, Zimbabwe, Democratic Republic of Congo, Namibia, Somalia and Eritrea.
Most of these refugees are now based at Dukwi Refugee Camp.
Botswana is a signatory to many international conventions including the United Nations Convention on the Status of Refugees, adopted in 1951.
According to the United Nations Higher Commissioner for Human Rights (UNHCR), state parties to the Convention are expected to cooperate with the UNHCHR to make sure that the rights of refugees are respected and protected.
Recently, Botswana has been hogging headlines in the local media for ill-treating some foreign nationals who legally came here to seek for asylum.
The bad treatment was also extended to persons who had been recognised in terms of the Refugees (Recognition and Control) Act of 1967 but whose recognition has been revoked.
Some of these foreign nationals were arbitrarily detained at the Francistown Centre for Illegal Immigrants (FCII) for many years.
After been abandoned at the FCII, the asylum seekers and refugees whose status has been revoked never heard a word from their custodians, the Department of Immigration and Citizenship.
In some cases, they were detained at the FCII with their small children who are denied the opportunity to go to school.
The foreigners through their attorney, Morgan Moseki, approached the High Court last month and beginning of May to argue that their perpetual detention at FCII was unlawful among other reliefs sought.
Justices Zibani Makhwade in cases (UAHFT-000004-17, 000003-17 and 000005-17) and Lot Moroka in case (UAHFT000017-17) ruled in favour of asylum seekers and some refugees whose refuge status has been revoked by the state.
Makhwade said the state argued that there was legal justification for keeping the petitioners at the FCII.
He said it was incumbent upon the respondent to state and produce necessary documents to justify such a position.
He said: “If the continued detention of the petitioners at the Centre is meant for the good of the petitioners the same must be lawful. It is not for the person detained to prove that that he or she is unlawfully detained…
“It is incumbent upon the person who has taken away the liberty of another to justify such deprivation of liberty. In my view, I find that the state has failed to show that the detention of the petitioners for an extended period is lawful. In the circumstances, the petitioners are entitled to an order releasing them from detention immediately. The state is ordered to pay the costs of the suit”.
In the UAHFT-000004-17 case, which is similar to the one stated above but involves persons who had been recognised in terms of the Refugees (Recognition and Control) Act but whose recognition has been revoked, Makhwade said: “It is my considered view that the only issue for determination by this court is whether the petitioners have been lawfully detained and thus should be released from detention”.
The respondent’s position on the matter, Makhwade said, is that since they are no longer recognised as refugees, they are therefore undesirable immigrants and there is justification of continuing to keep them in perpetual detention.
Makhwade added: “The same reasoning applied in case UAHFT-000003-17 in relation to the legality of the detention of the petitioners therein applies with equal force to these petitioners. It is my considered view that the petitioners are in unlawful detention…”
In the UAHFT-000017-17 case, the petitioners arrived in Botswana in 2015 seeking asylum but were detained at the FCII till May 4, 2017 pending the determination of their application.
Said Moroka: “The centre is run and administered by the Department of Prisons. It also houses awaiting trial prisoners and convicts. All inmates are treated as prisoners”.
The petitioners, Moroka said, were denied asylum since 2015 and they asked to be freed from the centre and returned to their countries of origin or third countries willing to take them.
“Nobody is telling them anything about their fate post rejection of their application of refuge status…” Moroka said.
“The respondent has failed the petitioners in more ways than one. It has detained them when it should not have, it has put the children in detention to their detriment, it has taken inordinately too long to process the removal of the petitioners from Botswana,” Moroka said.
In conclusion Moroka said: “I must point out that in promulgating Section 5 of the Constitution, on the protection of the right to personal liberty, the founding fathers of this Republic were issuing out a promissory note (a bankable cheque) to citizens and foreigners alike that their rights to personal liberty shall be respected and taken only in accordance with the law”.
“The petitioners shall be taken to Dukwi Refugee Camp…The state argued that, that would not be appropriate because they are not recognised refugees. The right to personal liberty is sacrosanct. In resolving where they should stay pending removal, I lean in favour of enhancing not diminishing personal liberties,” Moroka said. He added: “No prejudice would be suffered by the respondent in placing them at the Dukwi Refugee Camp pending removal. They should strictly be confined to the Camp. Their detention at FCII is declared unlawful and they shall be released from detention forthwith”.
In the past, Ditshwanelo, The Botswana Centre for Human Rights, carried out a study to find out about two main areas of refugee protection in Botswana.
The other aspect dealt with the country’s refugee policy and practice while another dealt with the extent to which Botswana Refugee Law is consistent with International Refugee Law.
The research just like the judgement delivered by Moroka found out that it was “wrong to detain asylum seekers together with prisoners as prisoners awaiting trial because no charge has or is likely to be brought against them…”
It is an established fact, the study says, that prisons are meant to punish and rehabilitate convicted persons…keeping asylum seekers beyond the legally stipulated period is tantamount to punishment and violates their rights.
The study added that keeping them in prison is intimidating and humiliating because they are kept in overcrowded cells with prisoners, which renders prisons inappropriate place to keep asylum seekers.
The detention of asylum seekers, the study said, is contrary to Article 31 (1) of the 1951 UN Convention relating to the Status of Refugees.
The study recommended that asylum seekers should not be detained for more than 21 days in prison for the mere reason that there are no transit centres in Botswana where they can be kept pending their asylum application.
It also recommended that an asylum seeker should not wait for more than three months before they hear of their asylum claim among its various recommendations.
Solly Rakgomo, an expert in international relations, said the arbitrary detention of asylum seekers and refugees whose refugee status has been revoked at FCII does not bode well for the image of the country.
Rakgomo said Botswana, as a signatory of many conventions that protect human rights should be at the forefront of protecting those rights and not trampling on them.
He said Botswana stands to lose the respect she used to command in the past before the international community.
He noted that the country would lose her status during the UN and other international organisations summits that promote safeguarding and guaranteeing of human rights.
The recent court cases, Rakgomo explained, have the potential to paint Botswana with the same brush as other countries that trample on the rights foreigners with impunity.
He stated that he is happy because the country’s Courts abhors the violation of human rights with reckless abandon but uphold the rule of law to citizens and foreigners alike.
Rakgomo added that the ill-treatment of foreigners as shown by the recent Francistown High Court cases have the potential to endanger the lives of Batswana who travel and work in foreign countries.
The security of Batswana in those foreign nations, Rakgomo said, is not guaranteed because people from other countries may treat Batswana inhumanely merely on account of how government treated people from their nations.