Attorney Dick Bayford has launched an urgent application at Lobatse High Court challenging the decision of Minister of Justice, Defense and Security Shaw Kgathi to repatriate the ten Eritrean nationals who were seeking asylum from Botswana. Bayford, who represents the Eritrean Movement for Democracy, pled with the court to review, correct or set aside as grossly irregular, capricious and irrational Kgathi’s decision to declare that the asylum seekers are not political refugees. The Eritrean Movement for Democracy and Human Rights, represented by Dick Bayford, had approached the courts, citing the Attorney General, Shaw Kgathi and the Minister of Labor and Home Affairs seeking for the Commissioner of Botswana Police to be interdicted and stayed from removing the Eritrean nationals from the country. Approximately ten in number, the Eritrean nationals had on or about 14th October 2015 presented themselves to the government of Botswana seeking political asylum.
In his application, Bayford argued that the asylum seekers should be accorded fair and impartial hearing, especially because Kgathi had previously stated that they are not political refugees. Bayford pled with the Court to take over the functions of the Refugee Advisory Committee and Minister Shaw Kgathi, adding that the Minister’s decision to deport the Eritrean asylum seekers was ultra vires the Refugee (Recognition and Control) Act.
Further, the Eritrean Movement for Democracy and Human Rights wanted the court to substitute Kgathi’s decision to deport the asylum seekers with an Order that they are political refugees.
Bayford and Associates also demanded access to the organ of State in whose custody the asylum seekers are. They also argued that the asylum seekers will not enjoy fair administrative action, including a fair and impartial hearing as Kgathi had previously declared that they are not political refugees.
The Eritrean Movement for Democracy and Human Rights further said it was aggrieved by Kgathi’s decision to deport the asylum seekers as it was an irrational and arbitrary exercise of discretion, further arguing that the Minister has no power under the Act, the Immigration Act or any other law to deport an immigrant and in particular the asylum seekers.
The Movement further castigated Kgathi for not exercising discretion as he made a value judgment, despite the fact that his powers are merely administrative.
“In the present case the Minister was not only irrational, but was also influenced by irrelevant considerations,” argued the movement.
The movement further asserted that the asylum seekers would suffer irreparable harm, as Kgathi’s refusal to recognize the asylum seekers as political refugees would be a de facto legitimization of the otherwise reprehensible Eritrean undemocratic political conditions and human right abuses.
“The decision by the Minister to deport the asylum seekers without hearing is an affront not only Eritreans, but humanity as a whole. Such harm is irreparable. Botswana has international obligations not only under law but as a country that values the rule of law. To ignore the humanitarian crisis in Eritrea and the human rights abuses in that country would undermine public and international confidence in Botswana. The irreparable harms could not be greater,” said the Eritrean Movement for Democracy and Human Rights.
