By: Obusitswe Kologwe
Francistown High Court Judge, Lot Moroka has issued a stern warning to law enforcement authorities against violating the rights of prohibited immigrants.
Presiding over a case in which two deported Ugandan Refugees, Musa Isabirye and Timothy Yamin had taken the government to court for contempt of court last week the Judge said that the constitution of Botswana guarantees equality before the law. He said declaration of any person as a prohibited immigrant does not mean that they should be denied access to justice.
The two refugees who had a two year long legal battle with government over living conditions at Dukwi Refugee Camp were deported on the 25th of October 2015 as they were declared prohibited immigrants by President Ian Khama. Justice Moroka had made an order on the 23rd October 2015 that that they should not be deported pending their review application before court.
Through their lawyer, Martin Dingake, the refugees made an application before court seeking the government authorities to be charged with contempt for violating a court order and to be sent to jail. The lawyer also sought the authorities to pay for the legal costs incurred by the applicants.
The Attorney General Athalia Molokomme was cited as first respondent, Police Commissioner Makgophe (2nd respondent) Prison Commissioner Silas Motlalekgosi as 3rd Respondent and five junior police officers.
Dingake told court that upon legal representatives of the applicants seeking to consult their applicants and between the times the order was moved and granted the applicants were moved from First Offenders Prison to Sir Seretse Khama Police Station and were denied a chance to consult with their attorneys.
On the other hand representing the respondents, Ndiye Balule said there was no case of contempt against the respondents as there was no evidence.
He also said that the applicants were denied full access to their legal representatives as they were declared a security threat.
Delivering judgments on Friday, Justice Moroka absolved the attorney General, Police Commissioner, Prison Commissioner and three junior police officers saying that there was no evidence to show that all of the respondents violated the court order. He however held two junior police officers, Seargent Molebatsi(4th respondent) and Setlhako(5th respondent) for contempt.
He accused the officers for resisting implementation of the court order at the time of the service as they refused proper access by the applicants to their attorney.
“The right to legal representation is a fundamental right guaranteed by Botswana’s constitution. The availability of this right to persons who have been arrested, detained and are facing deportation is even more critical,” he said
“A declaration of any person as a prohibited immigrant does not mean prohibition from accessing justice. It is therefore unlawful to bar any person who has been declared a prohibited immigrant by the President of the Republic of Botswana from accessing legal representation or the courts to vindicate his or her rights. It is common cause that a notice was placed at First Offenders Prison prohibiting applicants access to their lawyers. It was a gross violation of a fundamental right enjoyed by the applicants. It must never be repeated,” cautioned the Judge.
Moroka said when rights are infringed or threatened the impugned conduct becomes very much the business of the judiciary. He said Judiciary intervention is essential in order to vindicate the rule of law by making certain that exercises of power accord with the rights found in the constitution of the Republic of Botswana
The two police officers who have been charged with contempt are to appear in court on the 3rd of December 2015 to explain why they should not be sanctioned.