In a ground breaking judgement Gaborone High Court Omphemetse Motumise has rescinded former President Ian Khama’s decision to declare a Nigerian national Peter Ogbole Paul a prohibited immigrant (PI).
Motumise ruled that the decision to declare Paul a prohibited immigrant was unlawful and set it aside.
Paul arrived in Botswana in 2009 and was employed by Dr Mompati, in Francistown as a medical practitioner holding the position of laboratory manager. He was later fired by Dr Mompati and opened his own company; Labscroll Medicals (PTY) Ltd. In papers before court, Paul argued that he is a victim of commercial competition as he was detained and destined to be booted out of the country.
He later approached the court seeking redress and relief to lift his PI status and to be released from detention. He contended that that the declaration was unlawful because the signature on the declaration purporting to be that of the president had been superimposed and is the only entry on the face of the order which is not original. He argued that the minister cannot exercise the powers of the President. According to Paul the minister does not fall within any of the circumstances under part VI of the Act which could render him liable to be declared an undesirable immigrant.
A person can be declared PI because of mental or physical incapacity, possessing insufficient means to support himself, being a spouse or a child of a prohibited immigrant, being afflicted with a prescribed disease or where the person is a prostitute, or a person who lives or has lived, or knowingly receives earnings of prostitution.
In its argument, the Attorney General contended that the doors of court are barricaded against Paul and that the Immigration Act shut him out and prevents him from obtaining any of the reliefs he was seeking from the court.
But in his ruling, Justice Motumisi ordered that the authenticity of the President’s signature on the declaration has not been proved with the consequence that the declaration is void.
“The jurisdictional facts prescribed by section 41(c) of the Immigration Act entitling the president to perform the functions under the section were not present, thus rendering the declaration of the applicant as a prohibited immigrant invalid,” said Motumisi.
He further said the court was entitled in terms of section 95(1) and 127(10) of the constitution to enquire and determine if the President performed his functions under the immigration Act when he declared the applicant a prohibited immigrant.
“The application succeeds with costs including the costs of two attorneys. The order declaring the applicant is declared unlawful and set aside. The respondents are ordered to release the applicant from detention with immediate effect,” said Motumise.
On the 1st of March 2018, the applicant was by order of the President declared a prohibited immigrant.
The declaration was served on him on the 14th march 2018 at that time he was on his way out of the country to attend a conference related to his work in South Africa, a trip he had long planned before hand according to the court records.