- Overturns Khama’s “unlawful” deportation order
- Powers to deport could be placed in autocratic and impulsive hands
- Section presents bleakest circumstances imaginable to foreigners & those PI’ed
- Says decision to handcuff courts could be an attack on the rule of law, its independence
The High Court of Gaborone has overturned Botswana’s infamous deportation law, stating that its existence is an attack on the rule of law and judicial independence.
The deportation law last came under heavy criticism and scrutiny in the controversial Professor Kenneth Good case where court of appeal stuck to the strict interpretation of the law which gives the president absolute powers to under section 41 of the Immigration Act.
According to the section, “a court shall not question the adequacy of the grounds for declaring any person a prohibited immigrant under subsection 2 and an appeal shall not lie against an order issued under subsection 2.” Furthermore section 48 states that a person shall not have the right to be heard before or after a decision is made by the President or the Minister under section 41 and concludes that a person affected by any decision made under subsection 1.0 shall not have the right to demand any information as to grounds of such decision nor shall such information be disclosed in any court.”
Justice Omphemetse Motumise in his judgement says “the combined effect of the three sections is to confer absolute powers on the President where he declares a person a prohibited immigrant and deny him a hearing well as reasons or information as to why they are being deported and further to oust the jurisdiction of the court to question or scrutinise the decision of the president declaring a person a prohibited immigrant.”
Justice Motumise made this in his recent judgement in which a Nigerian scientist and researcher , Peter Paul was challenging former president Ian Khama’s order declaring him a prohibited immigrant.
The declaration reads, “in exercise of the powers vested in me by section of 41 of the Immigration Act, I Lieutenant General Dr, Seretse Khama Ian Khama, president of Botswana hereby declare you Peter Paul to be undesirable inhabitant of, or visitor to Botswana.”
Making comments on the deportation law, Motumise in his judgement says: “the section presents the bleakest circumstances to a person declared a prohibited immigrant. There are no hearings , no transparent investigations, no appeals, no questions, no trial, and to seal it all, no court can question the adequacy of the grounds or reasons behind the declaration.”
He continued, “the decision is taken against the immigrant in his absence without notice to him, without his knowledge, by people he has not seen or does not know, for reasons and considerations he doesn’t know, and at a place and times unknown to him. At the end of it all, all the immigrant sees are state officials approaching him with a final verdict in the form of the deportation order.”
Motumise further warned and ruled that while the decision might be procedurally and substantively fair, legal, justifiable, it could be unfair, illegal, biased, motivated by bad faith, taken to settle scores or motivated by private rancour. It could be cruel, oppressive or borne out of malice or exercised for an improper or ulterior purpose.
In his continued onslaught on the controversial deportation law, Motumise reasoned that on the face of it, the decision could, in view of the ouster clauses, be an attack on the rule of law, and on the judiciary and undermine its independence. Ouster Clauses are clauses in legislation which exclude the jurisdiction of the courts to determine the matter or question identified in the given clause.
“Ouster clauses have the potential to subvert the constitutional order by conferring absolute, arbitrary and unaccountable powers contrary to the constitution which says that powers conferred under it or any other law are subject to judicial oversight,” remarked Motumise.
His worry as contained in the judgement is that , “The power to make deportation orders could, for all intents and purposes be placed in capricious and autocratic hands, or be exercisable in a manner that is not accountable to the population, where the holder of the power can literally do whatever fancies his whims, regardless of what the law says.”
The judge continued that indeed, the powers may be exercised most unjustly and in a manner that is detrimental to individuals and the country, or in a manner that portrays Botswana as an insular, inward looking country, with a pervading paranoia, intolerant of and unwelcome to foreigners.
Motumise took the war to parliament saying, “the above situation, to its fullest conceivable extent has been decreed to be acceptable by our parliament for modern day democratic Botswana, in ouster clauses which confer unlimited and unchecked powers of the executive.”
According to Motumise, much as the state has the prerogative to admit aliens into its territory at its discretion, the exercise of that function is regulated by the law and must be performing within its limits. “The idea that the courts are not even entitled to enquire if the president acted in terms of the law is inconsistent with the norms of an open and democratic society underpinned by the rule of law,” he charged.
In the case at hand, the applicant-Paul produced evidence that he has strong links to the country, first through his initial employment and later as a businessman. He has made financial investments and other commitments to the country. His family is also resident in the country.
Motumise however observed that the applicant has a strong interest in remaining in the country until the lapse of his permits in 2022.
“At the very least he is directly affected by the order against him and has not only a substantial but an overriding interest in challenging its lawfulness. His position is totally different from that of an alien who has never set a foot in Botswana and with no connection whatsoever with the country. In my view, the applicant is directly affected by the declaration that he is prohibited immigrant and is entitled to bring this application,” he said.
The applicant is a scientist researcher who has been doing forensic investigations for many including Botswana Police Services. This deportation he said will affect Botswana Police Service work. He told the court that his deportation will affect this work further adding that he also has other assignments from Botho College and DTT School of Medicine as well as other engagements with the centre for HIV/AIDS Management Stellenbosch regarding HIV research on cryptosporidiosis among HIV positive persons.
Through his lawyer Dutch Leburu, Paul had challenged the legitimacy of the president’s signature demanding to know why the signature has been copied or superimposed by someone else and further challenged the president’s powers to act as such. Thirdly, he asked whether the ouster clauses are effective in view of other constitutional provisions. The acting director of Immigration told the court that Khama’s signature is valid and that she holds the authority and instruction to explain the signature on Khama’s behalf. The court differed and set aside the declaration.
The court said as in the case of Good, the president has not deposed off an affidavit to support his decision. “The order declaring the applicant, Peter Paul is hereby declared unlawful and set aside,” ruled Motumise. Paul was declared a prohibited immigrant on the 18th of March 2018.
AU ‘s human rights commission’ views on Botswana’s deportation law..
In 2010 after taking the case to the African Union’s human rights commission in Banjul, The Gambia, Good was awarded an undisclosed payouts by the commission.
The mode of payment of the compensation was to be made in accordance with the pertinent laws of Botswana. In its favourable ruling for Good, the court also said Botswana should review its immigration laws.
But the Commission said it has no power to rule on the constitutionality of the laws, executive actions or judicial decisions of state parties and so it cannot pronounce on these regarding Botswana’s Immigration Act.
With respect to the Commission’s competence, Botswana held that immigration matters are not part of the mandate of the Commission, arguing that only the Executive Council of the AU is responsible for immigration matters.
Good, a former political science lecturer at the University of Botswana (UB) was declared a prohibited immigrant in 2005, after authoring an academic paper criticising Botswana’s system of ‘automatic succession’ to the presidency, which he described as ‘a poor example in Africa’.