Lawyers from the Directorate of Public Prosecutions on Friday afternoon left the Lobatse High Court smiling after Judge Maruping Dibotelo ruled in their favour in a case in which a Nigerian-born doctor based in Maun, Henry Chiumonwu, was challenging a Presidential Order declaring him a prohibited immigrant in Botswana.
In his short judgment, Dibotelo said that, ordinarily, it is an accepted principle of law that every person has the right to be heard and make representations before or in regard to a decision by a public authority that adversely affects him or his interests.
However, he said this may be taken away, adding that in the past, the Court of Appeal has pronounced that, in former University of Botswana lecturer, Professor Kenneth Good?s case, Parliament had taken away this right in regard to a decision which was made by the President to deport a person. Under Section 7(f) of the Act, the President is vested with such powers. Further, he said, in those circumstances, the affected person has no right to be heard by the president in terms of Section 36 (1) of the same Act.
?That, unfortunately, is the law,? said the judge. In these circumstances, Dibotelo said that the applicant has no right to be heard by the president as he had been declared a prohibited immigrant and he said the applicant can not institute any proceedings to review and set aside the decision made by the President.
Dibotelo said that it was worth noting that, in Professor Good?s case, the Court of Appeal had stated that the refusal of right to appeal a deportation order in terms of immigration laws was not peculiar to Botswana and that an ouster of the Court?s jurisdiction is not unusual as it is found in immigration laws of some liberal western democracies. Dibotelo finally dismissed the application with costs. The applicant?s lawyer, Batlhalefi Moeletsi, refused to comment whilst Keetshabe said that the judgment had only confirmed what they had always known to be a fact that Presidential Orders cannot be challenged. On when the applicant would leave the country as his application had been dismissed, he said he could not say when that would happen adding that what he knew was that the applicant was now in the country illegally. On the status of the operations the doctor was running in Maun and Gumare, he said that the judgment did not mean that they could not continue operating. On the pending criminal cases against the accused, Keetshabe said that he could not comment because he did not have any information.
The applicant leaves his nephew, Oklolo Anthony Ekechuku, in remand prison in Maun, facing charges of alleged involvement in the theft of ARV tablets. In his affidavits, Ekechuku denies any knowledge of the theft.