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Congolese in Danger of Being Deported from Botswana

Refugee Rights News
November 2009

On 9 October 2009, the Namibian newspaper reported that 41 Congolese who were being housed in Molepolole Refugee Reception Centre near Gabarone in Botswana would be deported to the Democratic Republic of Congo. For this group, which includes both persons who had been recognised in Namibia as refugees and asylum seekers, the threat of deportation from Botswana is only the latest in a series of trials.

The group, many of whom before they arrived in Botswana had been in Namibia for nearly a decade, left Osire Refugee Camp in Namibia about three months ago and camped on the Botswana border after reportedly receiving death threats from officials of the government of Namibia. The refugees are members of the Association of the Voiceless (AV), a human rights organisation formed to advocate for the residents Osire Camp. The AV had sent a letter describing troubling conditions in the camp to the Namibian Ministry of Home Affairs and Immigration in June 2009.  The letter asked that Osire Camp be closed down and its residents resettled to third countries or integrated into Namibian society.

According to the UN High Commissioner for Refugees (UNHCR), Namibia is home to roughly 8,000 refugees. Namibia requires all refugees to live in Osire Camp and retains strict control over their movement. According to the National Society for Human Rights (NSHR), a Namibian non-governmental organisation, Osire Camp, about 220 km northeast of Windhoek, is home to about 6,500 people. Roughly three-quarters of the camp’s residents are Angolan, while the remainder come from the Great Lakes region and other African countries. Namibia has filed a reservation to the 1951 Convention relating to the Status of Refugees on the right to freedom of movement, and Namibia’s refugee law, the Namibia Refugees Recognition and Control Act (1999) states, “[a]ny person who, without the prior permission of the authorized officer or any other person in charge of [Osire Camp], leaves or attempts to leave [the camp] shall be guilty of an offence and on conviction be liable to imprisonment for a period not exceeding 90 days.” Refugees are required to receive an exit permit to leave the camp, and only certain refugees with valid study or work permits are permitted to remain outside of the camp.

The Ministry of Home Affairs and Immigration replied in a letter to the AV members that the AV’s letter "was a threat to peace and security in the settlement" and ordered them to "stop writing sensational articles . . . .  [a]nybody, as an individual, found continuing with that adversary [sic] type of behaviour shall be requested to leave the Republic of Namibia within a specified period." In May 2009, former Namibian President Sam Nujoma said that foreigners who did not respect the government would “face bullets in their heads”. This statement caused fear in the camps, NSHR representative Phil ya Nangoloh said. “We took it as we were basically expelled by the Namibian government, and we decided to look where we could go for safety instead,” said a member of AV, Bibich Mwenze. Members of the group also claimed to have been harassed and threatened by police officers in the camp and by some fellow refugees.

Flight to Botswana

The 41 Congolese had taken refuge in “no man’s land” between the city of Buiteos in Namibia and Mamuno in Botswana until they were arrested by the Botswana police on 29 September. Joel Kaapanda, Namibian Minister of Information and Communication Technology, said that the refugees had left Namibia without legal documents, either passports or other travel documents. He further stated that their departure was in violation of the Refugee Recognition and Control Act, as well as the Departure from Namibia Regulation Amendment Act, which require that refugees apply for exit permits to leave Osire Camp and for travel documents to leave Namibia. The Namibian government announced that it would not provide the refugees with humanitarian aid or allow them to return. The refugees and asylum seekers also expressed that they had no desire to return to Namibia. According to the US Committee for Refugees and Immigrants’ World Refugee Survey, Namibia has a backlog of approximately 1,000 applications for refugee status, and though the country’s refugee legislation provides that all recognised refugees should receive identification documents, the government has issued very few IDs, and the government makes travel documents extremely difficult to obtain or renew.

Until the group was arrested, Botswana had been providing humanitarian aid in the form of food, shelter, and medical treatment to members of the group. A Botswana border official stated that they could not allow anyone to enter the territory without valid documents.

In a press release issued on 30 September, NSHR said that it had “reliably established that the refugees had been rounded up after going on a hunger strike to protest the ‘inhuman conditions’” to which they had been subjected during their time at the border post. According to a NSHR representative, the group was released from jail on 1 October and sent to a refugee centre near Gaborone, the capital of Botswana. The group included 23 minors.

The group remained in the camp until Botswana’s Defence, Justice, and Security Permanent Secretary Augustine Makgonatsotlhe announced that the group had been determined to be ineligible for refugee status and would be returned to the Democratic Republic of Congo. According to the Namibian, Marciela Rodriguez-Farrelly, the UNHCR Country Representative, declined to comment on the situation.

Both Namibia and Botswana have ratified the 1951 UN Convention relating to the Status of Refugees, its 1967 Protocol and the 1969 OAU Convention on the specific Aspects of Refugee Problems in Africa, all of which create legally binding obligations under international refugee law. Under these mechanisms Botswana is required to allow individuals access to its territory for at least as long as it will take to adjudicate their need for protection. Although Botswana has indicated that these needs have been assessed and that a negative determination has simply been made, it is particularly concerning in light of the fact that two of the families in question had been recognised as refugees in Namibia and that this decision is coming just days after UNHCR publicly warned thousands of Congolese refugees in Burundi not to return to Congo on the basis that there was ongoing military operations in their areas of origin.

Namibia also has obligations to the group. First, it is a concern that the movement of the group seems to have been triggered by the Namibian government's response to criticism about the treatment of refugees. Article 21 of the Namibian Constitution also states that the rights of freedom of opinion and expression, thought and conscience, freedom of association, assembly and movement apply to “everyone”. Second, most of the members of the group were either recognised refugees or asylum seekers and should have been protected at least until their claims were heard. Although it would appear that the refugees did violate Namibian law in the process of their flight, the Namibian government should consider whether refusal to allow the refugees to re-enter was an appropriate sanction for such an offense, particularly as it may result in refoulement.