Unlawful Deportations in Botswana: A Catalogue of Affronts to the Rule of Law

Salc : Staff Writer

by Simon Crowther, SALC intern

In what can only be described as a catalogue of affronts to the rule of law, Botswana has shamefully deported two Ugandan refugees – in flagrant breach of a court order after repeatedly denying them access to their legal representatives. Musa Isabirye and Timothy Yamin are now at risk of detention, persecution and torture in Uganda.

Isabirye and Yamin first arrived in Botswana in 2000. They were granted asylum in 2011 as a result of their political activities with the opposition in Uganda. They resided at the Dukwi Refugee Camp where they took issue with the difficult camp conditions and sought resettlement. As their requests were ignored Isabirye and Yamin were involved in a number of protests which were directed at the government and at the United Nations High Commissioner for Refugees. The government of Botswana have provided no explanation for the subsequent withdrawal of their refugee status, their detention and eventual deportation. It can only be assumed that it was a result of their political activities, however this remains unclear.

What is clear is that the procedure used to remove them from Botswana has displayed a frank disregard for the rule of law. Previous attempts to deport the pair had been thwarted at the last minute by their lawyer gaining court interdicts, so in an attempt to limit their access to legal advice a written notice was placed at the prison directing that Isabirye and Yamin were not to be allowed any visitors. The order explicitly precluded contact with their legal representatives. They were detained for three months, before they were deported on 25 October. At no stage have they been afforded a hearing before which they could challenge their detention or deportation.

Those in detention, and those facing deportation, must have access to their lawyers if they are to be able to challenge the legality of their treatment. Such is a fundamental requirement of the rule of law, as without it a person is unable to enforce their legal rights.

Botswana attorney, Martin Dingake, who represents Isabirye and Yamin, was able to successfully apply for an order from the High Court which declared the prohibition of his access to his clients unlawful, yet in spite of this he was never able to gain proper access to them. Indeed, that same High Court order prohibited their deportation. In an affidavit filed this week the Attorney General in Botswana affirms that the Director of Immigration was personally informed of this order, and its legal effect, yet it was been completely ignored and on 25th October the pair were deported to Uganda.

What has occurred in this case shows a shocking contempt by the executive for an express order of the High Court of Botswana. As if that were not enough, there is also a significant issue in Botswana’s revocation of Isabirye and Yamin’s refugee status and their deportation to Uganda. The principle of non-refoulement in international law means that a state cannot return victims of persecution to their persecutors. Botswana accepted Isabirye and Yamin had a well founded fear of persecution in Uganda when it granted them refugee status in 2011. That it has now opted to return them to Uganda is of grave concern.

We can and must protect the abstract principle of the rule of law, yet it is in practice that its demise is felt. In the present case two men have been taken away from their families and are now in a country from which they once fled fearing persecution. At the time of writing their legal team and families have been unable to track the pair nor establish their whereabouts and safety.