Gov�t, refugees headed for another showdown
Lebogang Mosikare | Friday August 11, 2017 15:38
The applicants have been in perpetual detention at the Francistown Centre for Illegal Immigrants (FCII).
According to the Immigration Act and the Constitution of Botswana, it is illegal to keep asylum seekers (be they rejected or awaiting their asylum applications) in detention for a period exceeding 28 days.
In recent similar cases before various High Court Judges, the government has lost after the refugees successfully argued that their indefinite detention at the FCII was unlawful. In fact, today is the deadline set for government to release more than 350 asylum seekers from FCII, following their successful bid, led by human right lawyer, Morgan Moseki, against unlawful detention. By mid-week, half who included children had been relocated to Dukwi Refugee Camp (DRC).
In the current case, the petitioners from Zimbabwe and Namibia through their lawyer, Moseki, wrote a letter to the AG requesting amongst others that they be released from custody forthwith because their incarceration is unlawful.
The petitioners were previously recognised as refugees but were declared prohibited immigrants after they committed some offences in Botswana.
“On April 13, I directed a letter to the AG requesting among others the immediate release of former refugees who were later declared prohibited immigrants because they committed some offences. The petitioners are detained at the FCII and they have no hope of ever being released because nothing is being said or done about them,” Moseki told Mmegi.
According to Moseki, the petitioners are Petros Ndlovu and Morris Phiri, both from Zimbabwe who were detained on September 28, 2011 and May 7, 2014 respectively, and declared as a prohibited immigrants after they had ommitted an offence.
Others are Namibians, Zwelo Zambo who was detained on July 11, 2016 and Sakia Vasco who was detained on December 12, 2014. The fifth is Sikwango Vasco Sitale who was detained on September 14, 2014.
The plight of these petitioners, Moseki said, is painful because there were once recognised refugees who resided at the DRC.
He stated that the petitioners later committed various offences which sentences they have already served.
“When they finished their sentences, they were never released from custody but were declared prohibited immigrants. In terms of the Immigration Act, any foreigner who is convicted of an offence and sentenced to a term not exceeding six months imprisonment is liable to be declared a prohibited immigrant upon their release,” Moseki explained.
But Moseki contests that even if someone has been declared a prohibited immigrant, it is unlawful to keep that person in jail indefinitely.
The issue, Moseki added, is that when you want to deport a prohibited immigrant, you should not re-foul (take them to a country where they were persecuted) hence the petitioners should be taken to the Dukwi pending any action the state might take against them.
“They are simply in prison because there is nowhere the state can take them to. Their imprisonment is unlawful. The AG should show cause why it cannot release the petitioners from jail long after they completed their jail terms. We are going to argue why the petitioners cannot be taken to the DRC while awaiting if any country can accept them,” he said.
Moseki reiterated that the Immigration Act and Constitution of Botswana do not permit the indefinite detention of persons who were once found guilty of an offence and those who were not found guilty of any offence simply because they are foreigners.
In a related development, Moseki also complained about the indefinite detention of two Somalis, Muhamed Mire and Mire Sabriey.
Explaining the duo’s situation, Moseki said Justice Zibani Makhwade of the Francistown High Court released them from custody at FCII on April 13.
The duo are rejected asylum seekers but were arrested three days later by immigration officials after their release and taken to the FCII.
“I wrote a letter to the AG demanding their immediate release from custody, but discovered that they had been secretly taken out of the FCII and whisked to Tlokweng police station. They were detained there for 11 days without a court order which is in violation of the law,” Moseki said.
Moseki added that the two were later declared prohibited immigrants by President Ian Khama and are currently detained at the first offenders prison in Gaborone.
“Nothing is being done and said about them. It looks like the people who detained them indefinitely have swallowed the keys of the prison,” Moseki said.