The private media, Guardian of 27th July2013 and Mmegi of 26th July 2013 reportallegations of denial of visa for Basarwalawyer Gordon Bennett. Survival Internationalhas issued an alert to the effect that Mr. Bennet’sapplication for visa has been turned down. TheGovernment of Botswana (GoB) has not deniedthese allegations. Gordon Bennet was scheduledto appear in court in a matter involving the GoBand Basarwa set for the 29th July 2013. Now thathe has no visa he will not be able or permitted totravel to Botswana and therefore argue the Basarwacase.
In the past, he has been able to travelto Botswana with no need to acquire a visa untilrecently when the government put him in a list ofpeople who will be required to acquire a visa beforecoming to Botswana.Regulation 5 (1) of the Immigration (Visa) Regulationsmade pursuant to Section 34 of the ImmigrationAct which provides that “No visa shall berequired by a national of a country visited in thefi rst schedule, who is the holder of a valid passportissued by that country unless the Minister by noticepublished in the Government Gazette declares thatsuch a person is required to obtain a visa.” All CommonwealthCountries except Bangladesh, Ghana,India, Nigeria, Pakistan and Sri Lanka appear inthe Schedule to the Act. The United Kingdom, amember of the Commonwealth, of which GordonBennett is a national, is included in the First Scheduleto the Immigration Act.
Gordon Bennett is requiredto apply for a visa following the Ministerof Labour and Home Affairs’ noticepublished in the Government Gazettethat he is required to obtain a visa ifhe is to travel to Botswana.The Regulation does not indicatethe basis on, and manner in which thepower to require someone to obtain avisa is to be exercised. The Minister isgiven a blanket cheque to determinethe scope and nature of the exercise ofthat power and is not obliged to givereasons for exercising this power noris ‘an authorized offi cial’ to whom theapplication for a visa is made under aduty to disclose why the visa applicationis turned down.
The danger withthe exercise of such unfettered exerciseof discretionary power is that itbreeds bad faith. In order for exerciseof public power to have legitimacy,and enjoy public confi dence, it mustbe backed up by reason and explanation.The circumstances under which therequirement of visa was imposed onGordon Bennett had always been dubious.That requirement having beenintroduced, it was diffi cult to see howhe will ever be permitted to set footin the country again. In this regard,our government acted predictablyand with a high level of emotion.
Inthe course of so acting, Basarwa havenow been denied legal representationof their choice at their expense. Ourgovernment which is routinely givento importing legal counsel in theircases has refused the same favourablelegal representation to Basarwa. Ithink they have denied Basarwa equalprotection of the law until they fullyexplain the need for the visa requirementand why the visa application itselfwas turned down.