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709 refugees face renewed forceful repatriation

Botswana government has been dragged before the High Court in Lobatse this week through an urgent application to withhold them against unlawful repatriation of Namibian refugees. According to court papers seen by Weekend Post, the refugees have requested for intervention before court to order government not to release the refugees from Francistown Centre for Illegal Immigrants and transport them back to Dukwi refugee camp.

They want the court to interdict government from deporting the refugees to Namibia/Caprivi Strip pending determination of the application. They also want an order declaration cessation of the 709 applicants’ refugee status as substantively unfair to the extent that same is unlawful. The refugees also request court to: “an order interdicting or restraining the government or anyone acting on their behalf from continuing with the repatriation of the refugees up until the reasons for their fleeing have no longer exist.”

Court papers indicate that the repatriation was scheduled on or before 11 July 2018 and now the fate of the refugees remains in the hands of High Court matter which is presided over by Justice Godfrey Nthomiwa. The case involves the government through the Minister of Defence, Justice and Security; Chairperson of the Refugees Advisory Committee; Minister of Nationality, Immigration and Gender Affairs, and Officer in charge at Francistown Centre for Illegal Immigrants as well as Dukwi Refugee Camp Settlement Commandant Fortunate Majingo.

In his founding affidavit, Tyson Mujela, a Namibian refugee who doubles as 709 refugees’ spokesperson stated that the Botswana government is not cooperating with them at all despite the obligation. “It is clear that the government of Botswana does not want to play ball by responding to our attorney’s correspondences and by further proceeding with preparations for the repatriations which are constituted by such actions as releasing our children from schools and further deploying Special Forces to control patrols at the settlement camp,” the refugee pointed out in court papers.

He also raised the red flag that their movement is also heavily restricted movement both in and outside the camp. “Seeing that the government of Botswana intends to further its objective which is to repatriate Namibian refugees without having satisfied itself that the fear of persecution detailed above no longer exist and failing attempts to conduct a dialogue either in person and also by correspondence when the deadline, 11 July 2018, is fast approaching we had no other option but to take legal route.”

The refugees’ spokesperson highlighted that they have always been desirous to amicably solve the bottleneck between them and government of Botswana and that is why they had thought it necessary that they dialogue around the issue before they could take the legal route which was the last option. However Mujela pointed out that government failed to prepare a report in order to advice the minister of the reason why they should or should not be repatriated to Namibia.

He explained: “as the matter stands we are still recognized as refugees under the Act and therefore worthy of protection by law until proven otherwise.” As far as we are aware, the Namibian refugee said the reason for their fleeing to Botswana in the first place still exists and that the responsible minister have not said or done anything to gainsay this assertion.

The refugee also added that for Botswana government there is absolutely no prejudice to be suffered by them if a deportation or repatriation is stayed and the process is ordered to start afresh in an open transparent way. “In any event, we aver that having stayed in the country since 1998 there is nothing material urgent to warrant our deportation or repatriation,” he said.

Meanwhile it is understood that the government of Botswana continues with preparations for repatriations including discontinuing the refugees’ children from schooling at Nata Senior Secondary School. “There is high likelihood that the repatriations will take place on or before the 11th of July 2018 as scheduled. The government of Botswana has not made attempts to address our cries as the refugees,” the Namibian refugee said in the court papers.

Meanwhile, the 1951 Refugee Convention which was ratified by 145 State parties, defines the term ‘refugee’ and outlines the rights of the displaced, as well as the legal obligations of States to protect them. The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom and this is now considered a rule of customary international law.

United Nations High Commissioner for Refugees (UNHCR) serves as the ‘guardian’ of the 1951 Convention and its 1967 Protocol. According to the legislation, States are expected to cooperate with the organ in ensuring that the rights of refugees are respected and protected. In the marathon case that may continue to put Botswana on the spotlight in how he relates to her refugees Dimpho Ramarumo and Martin Dingake of Dingake Law Partners represents the refugees while the government is represented by the Attorney General.

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Masisi, DIS come under scrutiny at UN Rights Committee 

25th October 2021
masisi & magosi

President Dr Mokgweetsi Masisi and the Directorate of Intelligence (DIS) came under the lens of the United Nations Human Rights Committee during the just ended dialogue between committee members and the Botswana delegation. 

Scores of issues, among them the country’s reports on topics including whether Masisi abused the State of Emergency Act during the COVID-19 pandemic and alleged surveillance and harassment of members of the public by DIS, were addressed at the session.

A Committee expert asked about legislation in the Penal Code allowing the Government to investigate people who expressed opinions against public figures, particularly the President. How many cases were there of journalists who had been investigated, prosecuted and tried?
Concerning the COVID-19 Emergency Powers Act, there was a provision for a fine or a five-year jail term for journalists using “source(s) other than the Director of Health Services or the World Health Organization” when reporting on COVID-19. The Committee Expert asked for the number of cases and other measures taken under this Act.

Another committee expert wanted to know that the scale and scope of electronic surveillance, which had sharply increased in recent years, was concerning. Furthermore, the Committee was troubled at the lack of a sufficient independent oversight mechanism over the Directorate of Intelligence and Security Services that reportedly had contributed to a growing climate of fear and chilling effect on journalists, human rights defenders and opposition politicians. In this respect, a Committee Expert asked about the measures taken by Botswana during the COVID-19 pandemic to ensure that the right to privacy was protected (collection and management of personal data).

The Expert also enquired about a database website, which was not functioning but was supposed to contain documents of Botswana’s international human rights commitments.
In terms of the freedom of assembly, while the Constitution of the State party guaranteed it, the Committee had received information that, in practice, the Public Order Act required citizens to apply to the nearest police for a permit to hold an assembly, and police had sometimes denied requests for unclear reasons.

The Committee Expert asked if the Public Order Act of the State party had been applied in conformity with those tests. Would the State party indicate the measures it had taken and/or intended to take to make the application of the law in question strictly compatible with the requirements under article 21? Furthermore, the Committee had also received allegations that police officers sometimes used force to compel gathering people to disperse. In this regard, the Expert asked for information on legal provisions and practical guidelines under which police officers may resort to force and any training programme if any, for police and other law enforcement officers to respect and ensure the right of peaceful assembly.

A Committee Expert asked about cases of holding people for longer periods under pre-trial detention than the maximum period provided for in legislation, 36 months, instead of six. Were there any plans to shorten the duration of pre-trial detention in legislation? The Committee noted that there was no provision for local community broadcasting. What measures were the State party taking to ensure that the local communities could also communicate in their language in the media?

What measures had been undertaken by Botswana to increase sustainable development in the country regarding climate change in particular. What efforts had been undertaken to ensure that customary courts worked up to speed? A Committee Expert asked about children in rural areas who travelled a long way to their schools. The delegation was asked about the independence of the Ombudsman Office, including provisions for appointing the Ombudsman. What budget was envisaged for this Office?

The Expert acknowledged the established procedures and institutions for anti-human trafficking but expressed concerns about the lack of reported cases. The Expert asked about the accountability of the public prosecution, as well as the intelligence services. Replying, the Botswana delegation, led by Presidential Minister Kabo Morwaeng, said there was an ongoing consultation for revising provisions that would ensure better protection for journalists and media freedom in Botswana.

Still, the delegation said, freedom of expression was assured in the State party without any restrictions, including in Parliament. There was an education programme providing the opportunity for children in primary school to be taught in their mother tongue. It also explained that the Ombudsman would be dealing with issues of human rights promotion and protection.

“National policies and procedures were envisaged to control the distribution of natural resources. Botswana was also taking measures to increase the access of minority groups to education. Regarding pre-trial detention, the delegation explained that the criminal procedure assured justice was preserved in the country,” said the delegation.

On the issue of torturer and alleged use of unreasonable force on suspects, the Botswana delegation explained that police officers were trained to use minimal force, ensuring that human rights were preserved, including in the cases of assemblies. On the use of surveillance, no legal provisions were breached, and such measures were used in accordance with national legislation. Legal aid was very costly, and it was not possible to keep the record in detail as asked by the Committee.

Morwaeng told the Committee that the Government maintained a robust consultative approach to policy development and legislative process. He said this was a system of governance that ensured that the voices of ordinary citizens were respected and taken into account in the social, economic and political process that affected them the most, giving full effect to the full enjoyment of human rights across the board. The delegation took due note of the views of the Committee, including the importance of harnessing information technology to give a broader appreciation of the provisions of the Covenant.

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Masisi on P1 billion water investment

25th October 2021
water project

The P1 billion water project launched by President Dr vMokgweetsi Masisi this week is said to be critical to the success of key projects planned in Lobatse – the Lobatse Milk Afric and Leather Park. After commissioning the multi-million Pula Masama-Mmamashia water project last week following its completion, on Thursday, Masisi performed ground-breaking ceremony of yet another major water project, the Lobatse Water Supply Master Plan (LWSMP1).

The water project was conceptualized in 2009 to address water shortage in areas along the Greater Gaborone zone. These areas include Ramotswa, Otse, Mogobane, Mankgodi, Manyana, Goodhope, Lekgolobotlo, Mmathethe, Molapowabojang and villages surrounding. It was said that some major upcoming projects in Lobatse such as Lobatse Leather Park, Milk Afric and the Pioneer Border Gate are dependent on the success of this project, in order for them to take off and operate effectively. The two projects have been struggling to take-off despite government having put the necessary resources.

The Lobatse Leather Park is anticipated to create about 4700 jobs at the initial stage and 7000 jobs at full capacity. The project entails the development of a complex for different tanneries with the support of state-owned beef company, Botswana Meat Commission. It will comprise primary infrastructure such as a common effluent treatment plant, sewage treatment plant, and others.

When operational, the park is expected to supply the private sector with hides and skins, raw to finished leather tanneries, and the manufacturing of different leather products. These products include shoes, belts, jackets, and others, thereby playing an instrumental role in stimulating economic activity. Leather Beneficiation Park is seen as important for the leather industry as it would ensure that Botswana moves from exporting raw leather to finished leather goods. It is said research has established that there are plenty of hides and skins in the country from the three million cattle and 1.8 million goats.

Meanwhile, Milk Afric dairy farm project which was expected to be complete by the second half of 2018, is in the wilderness after the initial partnership between Botswana Development Corporation (BDC) and Milk Afric failed to bear fruits. BDC has been searching for a new partner for the project. Once fully operational, the farm will produce a total of 21.9 million litres or one third of the national milk demand, which is 65 million litres a year. At present, Botswana imports over 58.8 million litres from South Africa at a cost of P345 million annually.

The P120 million project is a Public Private Partnership deal between Lobatse Town Council (LTC),  with 10 percent shareholding through leasing its 1375.4 ha farm for 25 years; and 26 percent (P40 million) by Botswana Development Corporation (BDC). When speaking at the groundbreaking ceremony held in Ramotswa, Masisi said, in addition to improving the water supply for domestic needs and livelihoods, this infrastructural development will facilitate major projects in the Lobatse region, which are critical to the ailing, old town.

“Our objective as a country is to align developments with the National Vision 2036 Pillar 3 on Sustainable Development, which recognizes water as a very scarce resource which requires strategic management by key players.” Botswana is a developing country with an increasing population, Masisi said, adding that an increase in population naturally causes exponential growth in the demand for water. This is a reality that Botswana is faced with and challenged to address for sustainable water supply, the President said.

He indicated that this is why they are continuously witnessing major water projects undertaken by government, in collaboration with key partners. “Gaborone and surrounding areas have been experiencing an acute water supply deficit due to infrastructure that has outlived its potential to meet the growing demand for water by citizens. This particular project entails the construction of a Pump Station at Forest Hill in Gaborone, a 57 kilometre pipeline from Gaborone to Lobatse and a new Northern reservoir.”

The project, awarded China State Construction and Engineering Corporation/Van and Truck Hire Joint Venture at over P1 billion, is currently at 49% of its completion stage. There are 637 jobs created by this water project. “The transmission pipeline will convey 63 million litres of water a day from Gaborone to Lobatse. This is a great improvement compared to an average supply of 14 million litres of water that has been supplied to Lobatse, Borolong and surrounding areas,” Masisi said.

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UN quizzes Botswana on gays, Sebina defilement case

25th October 2021
EU

The United Nations Committee on Human Rights has taken Botswana to task over what it considers to be discrimination laws against lesbians and gays and delay in prosecuting suspects in the infamous Sebina defilement case.  The Botswana delegation led by Presidential Minister Kabo Morwaeng found itself against the wall before the United Nations Human Rights Committee of experts in Geneva, Switzerland.  

First to take Botswana head-on was the UN Committee member, C SOH, who noted that the recent ruling of the High Court pays particular attention to the penal code penalising same-sex sexual conduct as it found that it infringed on the constitutional rights, dignity, liberty and privacy of the LGBTI persons (lesbians and gays).  “Nonetheless, I note with deep concern that those discriminatory provisions of the of the penal code remain in effect and regrettably the government stated in its periodic review before deciding whether or not to repeal section 164 it would still await the final determination of the court of appeal in the case of Motshidiemang vs State,” said Soh.

According to Soh, “This statement makes us cast doubt on the will of the government to vigorously” strike out section 164, which criminalises sex between people of the same sex.  “In this respect, I would like to ask the delegation to explain what the intended goal by the government was when it filed an appeal against the unconstitutionality ruling of the High Court,” he said. Soh said the Botswana Government had also explained that no persons had been convicted under this provision, section 164, ever since the penal code was enacted.

“However, media reports indicate that in August 2016, the government of a Gaborone Magistrate Court sentenced a man three years in prison who had been charged and convicted under section 164 for engaging in unnatural acts. Can the delegation explain these discrepancies relating to persons who have been convicted and sentenced under section 164 of the penal code,” he said.  He also wanted the Botswana delegation to explain how the government addresses how customary courts have been discriminating against LGBTI persons.

Another member of the UN Committee, Duncan Muhumuza, expressed concern that the Directorate of Public Prosecution (DPP) has taken more than four years to prosecute suspects in the Sebina saga in which a councillor was alleged to have slept with a student who was also a minor.
Replying to concerns raised by the UN experts, Mogakolodi Segwagwa, chief state counsel at the Attorney General Chambers, noted that one of the UN committee members has “become fearful that the fact that government appealed the case could be a sign that there is lack of will or doubt on the part of the government as to abolishing or outlawing of same-sex relations.”

“But I would like to assure the panel that Botswana has over the years proved itself at all times to be compliant with court orders. There are many examples I could put forward where the government had to make sure that court orders were executed. That is the assurance I can give out to the committee,” said Segwagwa.  He said there was a good reason for appealing the decision of the High Court in which it outlawed section 164.

“This was a High Court decision, and as you know in our jurisdiction when a judge is at the same court with his brothers and his sisters and fellow judges, whatever decision he puts out so far as that particular court is concerned, it is not law because it is not binding on his fellow brothers and sisters and it is not binding on fellow judges,” explained Segwagwa. He added that “It is merely persuasive so much so that some other judges may choose to when a similar case comes before him or her, depart and ignore the position that that particular judge espoused, and he or she can do so with ease.”

Segwagwa further explained that “There was a very pressing need for this matter to be appealed to the Court of Appeal for purposes of crystalising the law and for purposes of ensuring that if there is any aspect of the law that the High Court had overlooked in arriving at this particular decision, then such an aspect can be taken into consideration by the Court of Appeal.” “So we are waiting for that judgement, and once it comes, it will be implemented. I take it that the committee would like the Court of Appeal to uphold the decision below and strike out this particular section.”

He assured the UN experts that when the High Court struck out section 164 in 2019, the country did not erupt into violence, adding that this was an “indication that we don’t have anything against people of LGBT. They are our brothers and sisters, and we co-exist with them.”  Regarding the Sebina saga, Segwagwa said the painful case “where this councillor was said to have had sexual intercourse with a child is the police dealt with a matter as it is the law and we all know that the police are bound by their Act to do so without fear and prejudice.”

He said Upon completion of their investigation, “the matter was handed over to the prosecuting authority, as Mr Muhumuza had indicated, it has been four years and we concede that four years is a long time and that it is unreasonably a long time and that it defeats the whole adage that justice should be sweetest and freshest so much so that the case needed to be speeded along.”

He added that “But the problem we have which is not a problem in the sense of it being a problem, but the impediment we have in the sense that the Constitution created the Office of the Director of Prosecutions under section 51 subsection A and if you go to that particular section and you read subsection six, the director shall not be subjected to the control of another authority.”

Segwagwa said, “this is the section that was inserted in this constitution to safeguard the independence of the Director of DPP to ensure that he or she prosecutes matters without fear, favour and prejudice and it presents impediment where we can’t try and say to the DPP, go and register or indicate your position now, tomorrow or next year and that is why it has taken all this time, but we believe attempts are being made that it finds its way to the court.”

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