When Botswana’s Court of Appeal delivered its recent decision on 709 people from Caprivi, living in the Dukwi refugee camp, deep in Botswana and close to the border with Zimbabwe, the judgment came as a serious blow to the hopes of the refugees. It has also raised questions by the refugees and their supporters, local and international, about whether the court was correct in its approach. Less theoretically, the refugees are deeply concerned about the dangers that they believe await them once they are returned to Caprivi – something that now seems inevitable – as well as the impact on their children’s education.
During the late 1990s, the Caprivi area in Northern Namibia exploded into violence. Caprivi, a narrow tongue of land stretching from Namibia across the northern border of Botswana, also adjoins the borders of Angola, Zambia and Zimbabwe.
The fighting involved Namibian soldiers and the rebel Caprivi Liberation Army, a secessionist group arguing that Caprivi does not form part of Namibia. Hundreds of people fled the area, some because they feared trial for treason, others because they were members of the pro-secessionist United Democratic Party, outlawed in Namibia. Yet others left because the whole region had become unstable and their families and property were at risk.
Some people have since returned, but for the last few years more than 700 have remained in Botswana’s Dukwi refugee camp, uncertain about their future.
In March 2015, the governments of Botswana and Namibia agreed there were no longer good grounds for the Caprivi people to continue as refugees. Shortly afterwards, the two states, with the United Nations High Commission for Refugees (UNHCR), signed a tripartite agreement to the effect that the people should all go home as a result of the ‘cessation of their refugee status’.
As a first part to their strategy, the tripartite group organised ‘Go and See; Come and Tell’ visits: some of the refugees at Dukwi were to go back and check conditions for themselves, then return to report their experiences.
However, the Court of Appeal in Gaborone explained in its most recent decision that, while ‘cessation of refugee status’ required ‘objectively verifiable’ improved conditions, no input or consent was required from the refugees once government parties and the UNHCR agreed to end their refugee status.
All that was needed was ‘a change of circumstances in the country of origin’ – an agreement between the tripartite commission that the problems causing the refugees to leave in the first place had changed, and no longer existed.
The refugees, who do not believe there is a sufficient, or indeed any, change in Namibia on the political issues that caused them to leave, then asked the courts for help and have since brought a series of cases to test the legality of the pending deportations to Caprivi.
In 2018 the high court, responding to an application by the group in Dukwi camp, ordered that the man generally acknowledged as the leader of the refugees, Felix Kakula, should be released from the centre for illegal immigrants where he was being held, and returned to the Dukwi camp.
The high court also interdicted anyone from deporting the camp people to Namibia or Caprivi, pending a review application. Further efforts at repatriation were also interdicted ‘until the reasons for the fleeing no longer exist’.
Botswana’s minister of immigration and gender affairs, appealed this interdict, and the latest judgment is in response to that appeal.
The three judges from the Court of Appeal noted that the people from Caprivi in the Dukwi camp were no longer recognized as refugees, and thus had no right to be treated as refugees or to be held in a refugee camp. They ruled that for various reasons, two previous high court decisions in favour of the ‘refugees’ were wrongly made and that the latest interdicts should be overturned.
The appeal court also noted that while the Botswana government was keen to get moving on the repatriation of the Caprivi people, via the ‘Go and See; Come and Tell’ approach, the ‘refugees’ themselves did not want to deal with the tripartite commission or engage with it on repatriation.
The appeal judges said one of the grounds given by the ‘refugees’ for refusing to work with the tripartite commission was that, when some of their members joined an earlier ‘Go and See’ mission, the police forced them, at gunpoint, to leave Namibia.
Given this approach by the Namibian authorities the ‘refugees’ argued they should not be expected to return to Caprivi. In the view of the refugees, as quoted by the Court of Appeal, once they returned, the Namibian government planned ‘to try them for serious political offences, cloaked as crimes, including treason, simply because of their political beliefs and support for their banned political party’.
How did the court of appeal judges deal with this argument by the ‘refugees’? The court said the decision to end their refugee status was dependent on ‘objectively established facts’ garnered by the two states involved and the UNHCR, and did not require the consent of the 700 in the camp.
‘In the absence of any clear evidence that (Botswana) breached any of its international obligations in relation to the refugees, … (the version of the Botswana government) ought to have been accepted.’
‘Therefore in the absence of a violation of the Order, no clear right was established by the (refugees),’ the judges said, and upheld the Botswana government’s appeal.
This approach by the three judges runs through the judgment and is a cause of concern to some legal analysts as well as the ‘refugees’ themselves. If one of the advance party had been turned back at police gunpoint because that person’s political party was ‘banned’ in Namibia, should the Court of Appeal not have taken note of this? Further, there are no provisions in Namibia for the banning of a political party, so in what sense is the ‘banning’ of the UDF and the ejection of its members from the country at gunpoint, legal?
Why was no independent expert evidence required before any decision was made about the future of the ‘refugees’, particularly since the two states involved both have a vested interest in getting the people back to Caprivi? The situation in Namibia was such that the refugees fled for their lives. Now that same government from whom the people fled, is the party that says they should return. Should some impartial investigation not have been carried out to ascertain the situation on the ground rather than relying on Namibia’s say-so? Should there also not be a written and binding ‘guarantee’ – an indemnity – that those who return will not face charges, including charges of treason? A treason trial, involving about 170 people allegedly part of the secessionist movement, began in Namibia 20 years ago, around the time the refugees fled to Botswana. Ultimately 32 were convicted – but the case still continues in the sense of pending appeals on various aspects of the case. If the Dukwi people were to be charged with treason when they return, it would be difficult to argue that such a trial would be fair, particularly given the time that has elapsed.
Apart from the politics, the refugees are deeply concerned about their children, born during the time they have been living in Dukwi. What is to be done about their nationality? If they were born in Botswana does this give them citizenship? And if so, can Botswana deport its own citizens, or the parents of child citizens of Botswana?
And what about their year-end exams that are now very close? Several children have already been taken from school, under escort of the Special Support Group (SSG). When questions were asked about who had taken them and why, Botswana’s ministry of defence, justice and security, said they were ‘withdrawn’ from school to join their parents, due to be deported from Botswana on 12 September (today).
Further, if the Dukwi people have lost their refugee status, why are they not subject to Botswana’s laws on immigrants whose status has not been regularised? Is there no legal or court process in Botswana that must be followed to determine whether immigrants may be allowed to stay? Is there no tribunal or hearing that would allow individual immigrants to explain their individual circumstances?
Among those concerned about the impact of the latest judgment and the intended return is Amnesty International which says the refugees should not be taken home if their safety could not be guaranteed, and if they could face human rights violations, in breach of international and national obligations under law. Botswana’s human rights organisation Ditshwanelo, has also expressed its anxiety about the current situation. In a statement issued last night, the organisation said that Botswana had played a key role in forging peace and the extension of democracy in the region. It would amount to failing that historical role if the authorities in Botswana did not extend their usual courtesy and help to broker meaningful dialogue with the people from Caprivi. The Namibian authorities, meanwhile, have indicated there is no intention to tolerate talk of secession.