FRANCISTOWN: Justice Lot Moroka will deliver judgement on November 20 in a matter in which the commissioners of the Botswana Police Service and Prisons and Rehabilitation, together with five police officers and an immigration officer, are facing a single count of contempt of court and possible imprisonment.
An attorney representing two Ugandans deported recently, is demanding that all respondents receive jail terms for defying Moroka’s previous ruling in which he ordered that the Ugandans should not be deported pending their legal process. The case was instituted by Martin Dingake in his own capacity as the legal representative of Ugandan refugees Musa Isabirye and Timothy Tamin, who were recently deported despite a court order of October 23. Dingake also wanted the respondents to each pay P2,000 and furthermore, to pay the costs of the application.
When the case resumed on Monday morning, attorney Ndiye Balule from the Attorney General (AG) argued that Dingake has no powers of attorney to institute contempt of court proceedings against the respondents because the applicants did not give him the power of attorney to represent them. However, Dingake stated that it was impossible for the applicants to append their signatures in court papers because when he sought to consult them on October 25 he learnt that the applicants were moved from first offenders prison to Sir Seretse Khama police station two days earlier.
Dingake said that it was not in dispute that the respondents have cumulatively violated the order of October 23, adding that one of the respondents even expressed misgivings about the order. “The flagrant disregard of the order by the AG has not been investigated. The AG is an officer of the court who shall at all times respect court orders. The AG has butchered and murdered the constitutional values of our democracy.
She ought to have acted in compliance with court orders and not aiding and abetting disobedience of court orders,” said Dingake adding that the court must rule in his favour.
On the other hand, Balule said the respondents did not willfully choose to disobey the order.
“It is trite in law that if you sue for contempt the service of the order should be personal and you must prove that there was willfulness to disobey the order and intention to do so…In the current case the commissioner of police is cited and it is not clear in papers that he was served,” said Balule. In addition, Balule said, Dingake was downplaying national security adding that President Ian Khama declared the refugees prohibited immigrants and is not obliged to state his reasons.
Balule said that even the immigration officers who are singularly vested with authority to deport undesirable elements out of the country were told about the order.
“This case involved many players who had different intentions but none of them had acted with an evil mind. I urge the court to dismiss this application with punitive costs,” said Balule in conclusion.
In response, Dingake said that the Constitution guarantees everyone the right to legal representation irrespective of where he or she comes from or their social status and requested the court to convict the respondents.