Mona-Lisa Danieli Mungure
Asylum seekers could be said to be the most vulnerable people in any country. Undoubtedly, it takes both audacity and desperation for a person to venture into another country for refuge and solace. As a minimum standard, receiving countries should be both compassionate and just in their dealings with asylees.
In Botswana, we pride ourselves with customary principles such as botho and setho which enforce how we interact with others in the community and the intrinsic qualities that define one as a human being. However, our legal framework pertaining to asylum seekers and refugees leaves much to be desired. Legal reform is therefore needed to amend certain unjust provisions and lacunae (gaps in the law). For purposes of this publication, I will only highlight three areas of concern.
Article 1 of the Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa defines a refugee as:
“Every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it…[t]he term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”
Despite the fact that Botswana has ratified this OAU Convention specified above, the definition of a refugee in Botswana does not mirror it. For the most part, a refugee is someone who has been recognized as a “political refugee” in terms of the Refugee (Recognition and Controls) Act. Additionally, the Refugee Act simply refers to the United Nations Convention of 1951 relating to Refugee Status – which is also limited in scope.
In effect, a large chunk of asylum seekers (persons seeking refugee status) are not being considered as refugees in Botswana, and worse still, there is no difference in status between a failed asylum seeker and an immigrant who is unlawfully in Botswana. This brings me to my second point, Detention.
The Immigration Act allows an immigration officer to detain an asylum seeker for a period of 28 days, pending a determination of their refugee status. For the most part, many asylum seekers are detained at the Francistown Centre for Illegal Immigrants, the only such centre in Botswana and a centre whose name alone is pejorative to say the least. It is unexceptional for immigrants at the centre to be detained for periods well over the 28 stipulated days. On the 4th of July 2017, Justice Phadi Solomon of the Francistown division of the High Court ruled in favour of the immediate release of an estimated 164 adult asylum seekers and their children. The asylum seekers consisted of nationals from various African countries whose refugee status was not granted and had been detained at the centre unlawfully for about two years. This results in the infringement of various human rights principals including; the right to access to education (for their minor children), the right to liberty and the right to dignity, to name a few.
It must be stressed that this is not the only such incident that has reached the realms of the High Court. In May this year, Justice Lot Moroka ordered for the release of 3 asylum seekers from the same centre and again in April Justice Zibani Makhwade dealt with the unlawful detention of asylum seekers at the centre. A more disturbing matter is that of Amina Hirsi from Somalia who was detained for several years at the centre despite the fact that her husband was already declared a political refugee and was residing in Dukwi. In light of the above, it seems as though the Department of Immigration is notorious for being a habitual offender of the already controversial laws that govern refugees and asylum seekers in Botswana. What is even more distressing is the alleged harrowing living conditions that some of the asylum seekers have voiced out. In interviewing one of the asylum seekers who was a part of the 164 adults, it was brought to my attention that since the order, the asylum seekers have been sleeping outside in the cold and some were sleeping inside the premises of the Francistown Prison, a place reserved for convicted prisoners! It is mind boggling how one would one day be granted their freedom from the centre one day, and then find themselves sleeping either in a prison or trapped between the gates of the centre soon after.
Although the Constitution of Botswana is archaic and has its own flaws, it still offers basic protection for people in Botswana, irrespective of their immigration status. Notably, it protects fundamental rights and freedoms of the individual, liberty, life, security and protection of the law. One would therefore clearly argue that the treatment of asylum seekers is unconstitutional and inhumane – devoid of botho. This now brings me to my third point, Encampment.
Imagine having to cross at least one border to seek refuge; maybe with small children, maybe with an elderly family member, or worse still – on your own. In your home country, you would have either witnessed gruesome atrocities perpetrated against you or your community or you would have been closely threatened with such acts. When you finally manage to make your escape, you are not only treated as a glorified criminal before you are declared a refugee, but even afterwards you continue to live a life that has been stripped of many basic human rights. In Botswana, a refugee cannot work, cannot ordinarily live outside of Dukwi refugee camp and until the year 2010 (thanks to the support of the United Nations High Commissioner for Refugees) refugees in Dukwi did not have access to lifesaving antiretroviral treatment. This is secondary persecution that could have adverse effects on someone who is likely to be suffering from trauma, post-traumatic stress and other mental health conditions. International and regional law requires that a refugee should be afforded at least the same treatment that is given to the citizens of a country and that an asylum seeker should be treated fairly upon entry into a country.
In light of the above, it is prudent that the government reforms its laws concerning asylum seekers and refugees in line with regional and international law standards. It is also important for the state to stop simply being responsive to judicial orders.
The state, as a law maker and the custodian of all members of society, is responsible for providing the right ecosystem for refugees and asylum seekers, and civil society and international organisations are simply there to ensure that this vision is supported.
Mona-Lisa Danieli Mungure is an Attorney at Law with Badasu and Associates. She holds a Master of Laws (LLM) in International Human Rights Law (University of Nottingham) and a Bachelor of Laws (LLB) (Nelson Mandela Metropolitan University).