The High Court ruled that the asylum seekers should be relocated to Dukwi Refugee Camp (DRC).
Advocate Paul Farlam SC, acting on the instructions of government legal representatives, Collins Newman and Co told a full bench of Court of Appeal (CoA) justices last week, that authorities ought to have communicated with the petitioners on the extension of their detention post 28 days awaiting removal from Botswana.
The asylum seekers had taken the director of immigration and citizenship, officer commanding of Botswana Prison Service and the officer commanding of the FCII, who are represented by the Attorney General (AG) to court seeking an order that their perpetual incarceration at the FCII be declared unlawful.
They argue that the law entitles the government to detain the foreigners if their asylum applications have been rejected.
The CoA bench is made up of Justices Ian Kirby, Isaac Lesetedi, Singh Walia, Monametsi Gaongalelwe and Tebogo Tau.
Although Advocate Farlam could not conclude that the incarceration of the asylum seekers at FCII was unlawful and illegal, he said the officers should have notified the asylum seekers of their removal date from the country as well as showed that their detention has been extended by the relevant minister pending arrangements to repatriate them to a country of their preference or any country willing to receive them.
However, he said the case has nothing to do with the interpretation of the Constitution but rather its implementation.
“My Lords, we contend that the petitioners, as unsuccessful applicants for asylum, were regulated by the Immigration Act and not the Refugees Act, and could be detained pending their removal from Botswana in terms of Section 45 of the Act,” argued Farlam.
a period as may be necessary for the completion of arrangements for his or her removal. But he conceded that the detention of such persons must be within a reasonable time.
He said the asylum seekers’ contentions that they have not been declared undesirable persons or illegal immigrants and so cannot be incarcerated, while in any event, they could only be detained for a maximum period of 28 days in terms of section 6 of Refugees Act was incorrect.
Francistown-based human rights attorney, Morgan Moseki who is fighting on the corner of the asylum seekers maintained that the perpetual incarceration is unlawful.
Moseki argued that government wanted to indefinitely keep the applicants in custody.
He said the case involves individual rights of people including children or babies. He said some of the asylum seekers and their small children have been languishing in custody at the FCII since 2015 contrary to the law that states that keeping them at the FCII for more than 28 days is unlawful.
“Their rights have been violated. They have been denied education due to this unlawful detention,” he argued.
He further argued that the detention for more than 28 should be supported by a warrant or at least communication from the officials that something is being done to repatriate the asylum seekers.
Moseki said all respondents came to Botswana from war-ravaged countries through various entry points and reported themselves to authorities seeking political asylum.
Moreover, he said no evidence was provided in court to support the appellant’s averments that many respondents had given false information about their true origins, which made it difficult to repatriate them.
Meanwhile, despite government’s appeal it is said that government has complied with the order by releasing the affected asylum seekers to the DRC.
CoA president Kirby said the parties will be notified of the date for delivery of judgement. He said this is because the justices have to do more research in relation to the Acts, which the appellants and the respondents quoted in their submissions.