State wins immigrants appeal case
Lebogang Mosikare | Tuesday November 28, 2017 17:11
The AG, representing the Department of Immigration and Citizenship, officer commanding Botswana Prison Service (BPS) and FCII, firstly appealed against Justice Lot Moroka’s judgement in the case of Marie Iragi and two others and finally against the judgement of Phadi Solomon in the case of Egema Ngezi and 163 others. In both cases, the State was ordered to liberate the respondents from detention in the FCII and accommodate them at the Dukwi Refugee Camp. It is against those orders that the AG appealed.
Passing judgement that was also agreed to by four other judges, Judge President Ian Kirby said since none of the respondents was entitled to be removed from detention in the present appeals, it is not strictly necessarily to canvass the appropriate order to be made if a finding of unlawfulness was properly to be made in a future case (should that ever be so since each failed asylum seeker has effectively chosen a restricted life in a detention centre over his or her difficulties at home.)
“Since a writ of harbeus corpus seeks vindication of a constitutional right to liberty, which the petitioner alleges has been breached by his or her illegal detention, such an application is properly brought on notice to the AG under Section 18 (1) of the Constitution. The application should normally be individually, should be supported by full particulars of the complainant and should give government a full opportunity to make a full reply,” said Kirby.
A proper legal basis should also be laid for the relief sought, he added.
He continued: “In neither the Iragi nor the Ngezi case, was any right to be moved to the Dukwi Refugee Camp established, once it became apparent that the respondents had not been granted asylum. In such an application the court should also be very slow to make an order (and certainly not without a comprehensive examination of the practicalities thereof), which has an effect of requiring the government to make a substantial or unusual allocation of public resources to in order to be compliant.”
That is what made Solomon’s order entirely inappropriate,, in particular that about 360 detainees and their dependents be moved forthwith to the Dukwi Refugee Camp, Kirby said. “It also ignored the requirement of Section 7 of the State Proceedings (Actions by or against the State or public officers) Act Cap 10: 10 in terms of which the government is normally given three months to comply with orders of this sort by execution.
These were cases where it was open to the court and probably more appropriate to make an order requiring the immigration department to comply with its obligations under regulation 16 of the Prisons (Centres of Illegal Immigrants) regulations by keeping detainees updated on a regular basis of the progress being made in government’s efforts to repatriate each one of them,” said Kirby.
In his judgement, Kirby noted, the respondents were justified in complaining that they were being kept totally in the dark about, if anything was done to facilitate their repatriation.
“It seems to me that regulations require that each detainee be informed at regular intervals (and at least 60 days or so) in writing, of the efforts being made to get him or her home or to find a third country willing to receive such detainee. I trust that this obligation will for the future be fully honoured.”
“Since all the respondents have already been moved to Dukwi Camp, however basic facilities may be there, it will be for the government to decide in light of this judgement, whether to move some or all of them back to the centre and when to do so. I agree that the Dukwi Camp is as was argued, a reception and retention centre for recognised refugees, and not for illegal immigrants generally,” said Kirby.
He stated that it is the FCII, which has been provided for the latter purpose.
“This applies equally to the 14 respondents who were at the time awaiting results of their application, because they too had no right to be accommodated at Dukwi Camp.
Should any of them have been subsequently be recognised as refugees, this will not be the case. It is clear that both appeals must succeed with no order as to costs in the appeal,” Kirby concluded.
Attorney Morgan Moseki represented the respondents, while Advocate Paul Farlam senior counsel represented the AG.