Bots Court of Appeal seals fate of Nam refugees

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Mpho Tebele

Gaborone - Namibian refugees based at the Dukwi Refugee Camp in Botswana have lost an appeal at the Court of Appeal in which the government of Botswana seeks to forcefully repatriate them back to their country.

The remaining Namibian refugees (estimated at around 900) from the Zambezi Region (formerly Caprivi) in north-eastern Namibia are facing forced removal from Botswana but managed to interdict that decision through their lawyers, Dingake Law Partners.

Approximately 2,000 of the 3,000 people who fled to Botswana have returned home since the beginning of the voluntary repatriation process, funded by the United Nations High Commissioner for Refugees (UNHCR) and supported by the two governments. 

The Botswana government attempted to enforce a cessation clause with respect to the status of refugees living in Dukwi Camp in the north of the country, which was invoked in 2015 but failed.

On 6 August this year, settlement commander at Dukwi Refugee Camp, Moses Machabo, addressed refugees and informed them that he was going to mobilise to ensure that the Namibians register to be repatriated. He urged the refugees “not to wait for the worst to happen”.

Botswana had given the refugees up to 11 July 2018 to voluntarily repatriate or risk being deported forcibly.

But the refugees approached the High Court and successfully blocked the government from deporting them back to Namibia, pending the determination of a review application.

The court interdicted the government from carrying out its threat until reasons for their fleeing Namibia no longer existed.

The refugees are members of the United Democratic Party (UDP), which agitated for the secession of the Zambezi Region (Caprivi Strip) from Namibia. They later fled from their homeland and settled at Dukwi Refugee Camp after being granted refugees status.

Last week, the Court of Appeal declared that over 700 Namibian refugees should be repatriated to their home country.

The court ruled in favour of the government of Botswana after the Attorney General appealed a decision of the High Court in which Tyson Mujela and 708 other refugees had interdicted the Gaborone authorities against deporting them.

The Attorney General later approached the Court of Appeal, arguing that the lower court had erred by granting the order against the Botswana government since there were no review proceedings pending.

Mujela, through his lawyers Dingake Law Partners, had argued that the Attorney General was incorrect because the interdict sought was an interim in nature.

But the Attorney General insisted that the lower court was not supposed to grant the interim interdict because at the time Mujela and others were no longer recognised as refugees.

The Appeals Court this week agreed with the Attorney General that “in any event the cessation decision could only be challenged by way of a review as it was an exercise of public power by state officials and as such is time barred if brought four months after decision is made or after the conclusion of the proceedings complained of”.

The Appeals Court also said the refugees spurned concerted efforts by the host country and other stakeholders who had wanted to assist those willing to voluntarily repatriate to do so without harassment from the Namibian authorities.

Exiled UDP leader Mishake Muyongo said in a statement that the court decision was wrong and did not consider the safety of his supporters.

“I would like to appeal firstly to the government of Botswana to know that the Caprivians in Botswana are members of the UDP, whose leader is me in exile.”

He said deporting the refugees to Namibia was dangerous to their lives as many of their families were still in the Namibian prisons “and that the Botswana government should not participate in the acts of tormenting Caprivians vainly but for friendship’s sake”.

But the UNHCR and its tripartite partners, Namibia and Botswana, are in unison that conditions in Namibia are safe for a dignified voluntary return of the Dukwi refugees, arguing that none of the Namibians that have so far returned home had been victimised, harassed or persecuted.

Spokesperson for the refugees, Felix Kakula, said they were not refusing to return to Namibia but all they wanted was an undertaking from the Namibian government that they would not be persecuted and that they would be accepted as members of the banned opposition UDP.

He said the Court of Appeal judgement meant that they were no longer refugees in Botswana but illegal immigrants.

“The Immigration Act is applicable to our situation and this means that as illegal immigrants, deportation is the only solution for us. But the judgement does not consider the political conflict that led us to flee from Caprivi to Botswana,” Kakula said.

“It does not address the fact that we are willing to go back to Namibia but we need the Namibian government to agree to peace talks with UNDP leadership.”

Amnesty International (AI) also appealed to the Botswana government to refrain from forcing refugees from Namibia back home.

Al’s deputy director for Southern Africa, Muleya Mwananyanda, was quoted as saying the Namibian refugees should not be forced to return home if their personal safety could not be guaranteed and if they may face human rights violations, which would breach international and national obligations under law.

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