Saturday, March 6, 2021

Court records suggest collapse in Botswana’s rule of law

Documents filed before the High Court this week provided a sneak peek into Botswana’s collapsing rule of law where the President and his officials routinely ignore advice from the Attorney General’s Chambers to respect the authourity of the courts.

 

It emerged in the court records that government officials acted with impunity against a a court order not to deport two Ugandan refugees after the officials had been alerted to the interdict ÔÇô it emerged in court this week.

 

 

The Deputy Attorney General Morulaganyi Chamme stops short of declaring that Attorney General Chambers has lost control over government agencies cannot stop them from flouting court orders and the country’s Constitution.

 

This emerged in a case in which Gaborone based attorney Martin Dingake is challenging the legality of government’s decision to deny him access to two Ugandan refugees, Musa Isabirye and Timothy Yamin despite a High Court order which declared the prohibition of his access to his clients unlawful.

 

Dingake is also challenging the government’s decision to deport the two men despite a High Court order also prohibiting their deportation.

 

In the current application, President Ian Khama is cited as the First Respondent and the Minister of Defence Justice and Security Shaw Kgathi is Second Respondent while Commissioner of Prisons and Rehabilitation Silas Motlalekgosi is Third Respondent. The Director of the Directorate of Intelligence and Security Isaac Kgosi is cited as the Fourth Respondent while Attorney General Athalia Molokomme is cited as Fifth Respondent.

 

Chamme states in his supporting affidavit that he informed Director of Immigration and Citizenship Mabuse Pule “of the gist of the order and clearly explained to him that the deportation had been interdicted. I stated that we would challenge the order, the following week. Although I have misgivings about the order I was clear that it had to be obeyed until it was set aside.”  Depite Chamme’s advice, the court order was ignored and the two men were deported. 

It is now not useful to go into the Order because events have run away from us.

“The current application is based on alleged denial of access. My information is that the applicants are no longer in the custody or control of the people before the court (Khama, Kgathi, Motlalekgosi and Kgosi) in the current proceedings because they were deported on the 25th October 2015,” said Chamme.

Dingake seeks an order directing that Chamme’s statement that the two Uganda men are no longer in the custody or control of the people before the court (Khama, Kgathi, Motlalekgosi, Molokomme and Kgosi) in the current proceedings because they were deported on the 25th October 2015 be referred to the hearing of oral evidence.

He is seeking an order directing and ordering a referral to evidence in respect of whether or not; his clients have been deported in the face of a court order and whether or not The deportation was under the specific authority and/ or direction of any person and/ or authority and state who that person and/ or authority is or was; and when that direction and authority was issued.

The court should also issue and order directing whether the person and/ or authority who directed that the applicants be deported knew or ought to have known of the existence of the court order interdicting the deportation of the applicants [the order of 23rdday of October 2015) and whether or not The person(s) who effected the deportation of the applicants knew or ought to have known of the existence of the court order interdicting the deportation of the applicants [the order of 23rd day of October 2015.

Directing a referral to oral evidence of the issue of whether or not the persons who effected the deportation of the applicants and the person(s) under whose authority such deportation was effected should not be committed for contempt of court order (dated 23rd day of October 2015).

Dingake is demanding all documents relating to the temporary and/ or emergency travel documents of the applicants for purposes of deportation and all documents relating to the request for and procuring of air tickets for the deportation of the applicants.

 

The lawyer also demands all documents relating to the keeping in custody of the applicants both at Sir Seretse Khama Airport Police Station (SSKA) and First Offenders Prisons (FOP); all cell registries for both Sir Seretse Khama Airport Police Station (SSKA) and First Offenders Prisons (FOP) during the time when the applicants were in custody as well as all occurrence books for both Sir Seretse Khama Airport Police Station (SSKA) and First Offenders Prisons (FOP) during the time when the applicants were in custody.

 

 

 

Commenting on the deportation Southern Africa Litigation Centre stated that “what has occurred in this case shows a shocking contempt by the executive for an express order of the High Court of Botswana. The principle of non-refoulement in international law means that a state cannot return victims of persecution to their persecutors. Botswana accepted Isabirye and Yamin had a well founded fear of persecution in Uganda when it granted them refugee status in 2011. That it has now opted to return them to Uganda is of grave concern.”

 

 

 

The organisation added that “We can and must protect the abstract principle of the rule of law, yet it is in practice that its demise is felt. In the present case two men have been taken away from their families and are now in a country from which they once fled fearing persecution. At the time of writing their legal team and families have been unable to neither track the pair nor establish their whereabouts and safety.”

 

 

 

This is not the first time that government officials defied a court order. Recently the Ministry of Health defied an order that HIV positive prisoners should be put on anti-retroviral therapy.

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