Wednesday, December 1, 2021

Bayford outmaneuvers Kgathi in Eritrean repatriation case

Bayford and Associates, lawyers representing ten Eritrean football players seeking asylum in Botswana Friday night outmaneuvered the Minister of Defence Justice and Security Shaw Kgathi and secured a final court order stopping the minister from repatriating the members of the football team.

In a consent order negotiated Friday night, lawyers representing the Eritrean asylum seekers managed to secure an order guaranteeing the defectors an indefinite stay in Botswana and tying the hands of the minister who had gone on record stating that he would repatriate the asylum seekers.

The order states that Minister Kgathi, the attorney general, the Minister of Labour and Home Affairs and the Botswana Police, “shall not remove from the jurisdiction of Botswana certain Eritrean nationals, all members of the Eritrean national football team, ten in number, who on or about 14th October, 2015 presented themselves to Botswana Government officials at Francistown seeking political asylum.”

The order which interdicts government from repatriating the Eritrean asylum seekers is open ended and does not cite any conditions under which their stay in Botswana will cease. The order effectively does away with the function of the Refugee Advisory Committee the Minister or other administrative function provided for under the Act for the recognition of the asylum seekers as political refugees.

Bayford in his court documents had pleaded that the court should direct that the function of the Refugee Advisory Committee and/or the Minister and/or other administrative function provided for under the Act for the recognition of the asylum seekers as political refugees be carried out by the Court. Asking the court to usurp the minister’s powers to decide the fate of the asylum seekers, Bayford stated that, “The Minister has categorically stated his position and as a functionary with the power to make the ultimate determination in terms of the Act, there is no alternative recourse available to the applicant. The only recourse is to invoke the powers of a free, independent and impartial Court to remedy a biased, irrational and capricious determination against the asylum seekers.

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. Although the consent order did not declare the asylum seekers refugees, it guaranteed them an indefinite stay in Botswana with no strings attached.

Bayford 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 consent order stated that “this order together with all originating process and any pleadings) if any) filed by the respondents shall be served personally upon the asylum seekers by Applicants within 14 days of this Order. The consent order further states that Bayford and associates who are representing the Eritrean Movement for Democracy and human rights “shall have access to the asylum seekers.”

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