Gov�t claims no malice in asylum seekers� case
Lebogang Mosikare | Friday July 28, 2017 16:02
The 164 refugees want to be moved to the Dukwi Refugee Camp (DRC) ito end their incarceration at the detention centre.
Justice Phadi Solomon effectively facilitated a stop to the incarceration earlier this month when she ordered that the petitioners (now respondents) and their dependants be moved to the refugee camp with immediate effect because their continued stay at the detention centre was unlawful.
On July 14, Solomon issued a similar order, which the AG should have complied with by July 21.
Solomon was however, reluctant to issue an order to imprison the Director of Immigration and Citizenship and officer commanding of Botswana Prisons Service at the FCII.
But on Monday, the AG engaged Collins Newman and Co. to file a notice at the Court of Appeal (CoA) against Solomon’s judgement.
The case was supposed to be heard on Wednesday, but since the High Court is on vacation Justice Lot Moroka availed himself to hear it on urgency in Solomon’s place.
Collins Newman and Co. attorney, Virgil Vergeer for the AG, argued that his client has good prospects of success at the CoA.
Vergeer said Section 18 of the Immigration Act empowers the state to move the respondents out of Botswana because they are not citizens of the country, and have no documents that allow them to stay since their asylum applications were rejected.
“…The judge didn’t appreciate that government was doing something to relocate the then applicants to DRC, but was experiencing some difficulties…The law entitles the government to detain the petitioners. The petitioners seek to say they were given asylum status but they were not. The judge failed with due respect to find that position.
“The problem it has taken time to comply with the court order is that moving the petitioners to DRC is a process. We sympathise with them. Having sympathy towards the accused and what the law permits is different… The law permits the government to have relocated the petitioners to DRC within three months which time frame has not elapsed for government to comply with court order,” Vergeer said.
On the issue of prejudice, Vergeer said it is common cause that the petitioners will be temporarily prejudiced before they are moved to DRC, but he added that the state is doing everything in its power to expedite the appeal so that the petitioners do not suffer more prejudice by the time the appeal is heard.
“We are not denying that there will be prejudice, but we seek to minimise that prejudice having regard to the interests of both parties in the matter…”
The attorney for the respondents, Morgan Moseki, countered what the applicant said.
He said the judgement that the applicant now wants to appeal was done by consent between himself and the AG.
“What the AG said is a total departure from what was earlier on agreed upon. I even went to DRC with an attorney from the AG and found that there was enough food to cater for the petitioners… The applicant has released 60 petitioners as of now. The remaining petitioners can be accommodated in the remaining tents contrary to what the applicant has said…”
Moseki also submitted that there is no order whatsoever that was granted empowering the government to remove the petitioners from Botswana.
He added that the law as already stated permits the state to detain the petitioners for a period not exceeding 28 days but they have been kept in custody since 2015.
Moseki said the Constitution of the Republic clearly frowns upon infringing on other people’s rights simply because they are foreigners, which he said is happening in the present case.
“It boggles the mind that the state is not producing any document to deny that there are no rejected asylum seekers who are staying at DRC. We have evidence in our documents before court that such people live in DRC…
The court should dismiss the applicant’s case because they have not annexed any documents to counter that there are rejected asylum seekers who are staying in DRC,” Moseki said.
He added: “…We submit that the petitioners will suffer prejudice because they will be kept in detention in perpetuity…One would understand the state’s position better if it has moved some of the remaining petitioners to DRC and they pray that they be given time to complete the relocation, but that is not the case. The application by the applicant is frivolous and vexatious and should be dismissed with costs”.