The court noted that the Constitution guarantees the right to liberty regardless of citizenship and the limitation of the right should be justified according to the acceptable conditions in the Constitution. Further, the court noted that the respondent (the Attorney General) had a duty to prove that the petitioner was legally held at the Centre for Illegal Immigrants.
The respondent, not the court, had to determine whether the petitioner was a political refugee or married to the alleged offender and whether she should be allowed to stay in the country and the conditions thereof. The only appropriate order that could be made by the court was to release the petitioner from detention and the relevant authorities should determine what to do with the petitioner.
Refugee status; political refugee; illegal immigrant; human trafficking; detention; refugee camp; rights of refugee; right to liberty
The petitioner entered Botswana without the necessary travel documents and handed herself to the authorities seeking refugee status. She argued that she travelled to join her husband who is recognized as a political refugee in Botswana. She was first taken to the Centre for illegal immigrants and then moved to a woman’s shelter because the authorities suspected she was a victim of human trafficking. While she was at the centre, she snuck out to the refugee camp that hosted her husband and fell pregnant. She was sent back to the Centre for Illegal Immigrants.
This was a petition for release from custody of a foreign national at the Centre for Illegal Immigrants.
The court ordered the petitioner to be released from custody and the respondent to pay the petitioner’s costs.
The court could only determine whether the limitation of the right to liberty was justifiable not the status of the petitioner (refugee/asylum seeker) or conditions thereof.