Foreigners apply to be released from unlawful custody
Lebogang Mosikare | Monday June 12, 2017 15:17
On June 1, the foreigners through prominent Francistown-based human rights attorney, Morgan Moseki, petitioned the state to show cause why an order should not be given declaring that the petitioners and their dependants’ continued detention at FCII beyond 28 days since being taken into custody should not be declared unlawful.
Some of the petitioners who are from the Democratic Republic of Congo, Burundi, Somalia, Namibia and Zimbabwe and their children who are over 250 have been kept in custody at FCII since 2015.
They fled to Botswana because of the volatile political climate in their respective countries.
The petitioners also want the Attorney General (AG) who is representing the Director of Immigration and Citizenship, Officer Commanding Botswana Prison Service and the Officer Commanding the FCII to show cause why they should not be ordered not to return the petitioners to their respective countries against their will where they may be liable to be subjected to persecution.
The applicants also want the respondents to show cause why it should not be ordered to release them from custody/detention with immediate effect and place them at the Dukwi Refugee Camp and provide them with accommodation and food until they are resettled in a country that is willing to accept them.
Lastly the petitioners want the respondents to show cause why it should not be ordered to pay the costs of the urgent application on attorney and own client scale for acting willfully against the law.
The matter was set for argument yesterday but was postponed to June 21 to allow both parties to serve the United Nations High Commissioner for Refugees (UNHCR) with some papers so that if it (UNHCR) has any input to make it can say it.
Moseki told members of the media after the matter was held in Justice Phadi Solomon’s chambers that the AG has not filed any documents opposing the petitioners’ application.
“The respondent has not filed a notice of opposition to the application. I don’t know why they have not filed any papers as yet. Maybe they are still taking instructions or they want to abide by what we wrote in our papers,” said Moseki.
He said although the AG has not filed any opposing papers, the fact of the matter is that the petitioners are indefinitely kept in custody together with their young children who are of school going age.
Moseki simultaneously expressed pity and disgust that the children are kept in detention and in the process being denied the opportunity to education, which is a basic human right.
He reiterated that keeping the petitioners in prison for more than 28 days after their application for asylum was rejected or while awaiting asylum is violation of the law.
“The keeping of the petitioners in indefinite custody for more than 28 days as prescribed by the law is illegal. The courts in similar cases that were recently presided over by Justices Makhwade, Moesi and Moroka ruled that it is illegal to keep the petitioners in custody for more than 28 days as prescribed by the law,” said Moseki.
What is fascinating about the conduct of the AG, Moseki said, is that previously the AG denied that there were rejected asylum seekers who were staying at the Dukwi Refugee Camp.
“We have filed affidavits in the current case to confirm that indeed there are some rejected asylum seekers who are staying at Dukwi pending their removal to a country that is willing to accommodate them….”
The current case bears the hallmark of recent ones that were heard in various courts in Francistown. The AG lost all of the cases with costs.