A move by the government of Botswana to deport a Nigerian, who had spent weeks in prison, has failed at the south African country’s appeal court.
The court upheld the Nigerian’s right to stay and continue his healthcare business in Botswana.
The judgement delivered on Friday followed an appeal brought by Botswana’s Attorney-General to challenge the verdict of the country’s high court, in May 2018, which had voided the president’s decision to declare the Nigerian, Ogbole Paul, as a ‘prohibited immigrant.”
The high court also ordered that Mr Paul be released from detention as he had been held since March last year. He was released on May 21 last year, the day high court delivered its judgement against the presidential order.
Mr Paul, 44, went to Botswana in 2009 to enter into employment as a laboratory manager with a Botswanese, identified as Dr Mompati, in the judgement seen by PREMIUM TIMES.
But later he was dismissed from his job “unceremoniously” just “before he was due to receive his gratuity and other benefits without hearing.”
He challenged the decision of his employer, Mr Mompati, in Botswana’s industrial court, which ordered that his benefits be paid.
“Dr Mompati was affronted and vowed to remove him from the country,” according to the appeal court, noting Mr Paul’s testimony.
“Undeterred, he complied with all the necessary formalities and set up his own company, Labscroll Medicals (Pty) Ltd,” further noted the appeal court.
“The company has flourished and now has several branches. Through it, he does important forensic for Botswana Police… and is involved in ground-breaking research on HIV and cancer.
“He has settled in Botswana with his wife and three children, has served as Chairman of Ridge View School PTA, and has served the country in other ways.”
Accused of running church unlawfully
After Mr Paul continued with his private business following his exit from Mr Mompati’s establishment, he was accused of running a church unlawfully and detained by immigration officers for five days.
He was able to prove the falsity of that allegation, the appeal noted; but was then accused of entering the country from an ungazetted point.
This, too, he was able to prove to be wrong, the court noted.
He submitted to the court that his tribulations dated back to the threats made by his former employer, Mr Mompati, according to the judgement.
The Nigerian was served with a document “Prohibited Immigrant” – which declared him an “undesirable inhabitant of, or visitor to Botswana” citing Section 41(1)(c) of the country’s Immigration Act.
The declaration was date-stamped March 2018 and purportedly signed by the president.
But at the high court, which he had approached against the state, Mr Paul argued the signature of the president (Ian Khama, 2008-2018, at the time) was forged and consequently the order sent was invalid.
The high court judge upheld Mr Paul’s submission and added that, even if he was mistaken, the “jurisdictional facts necessary for a valid declaration by the president had not been shown to be present, and for that reason, too, the declaration fell set aside.”
Dissatisfied, the attorney-general sought redress at the appeal court, seeking an order to upturn the judgement of the high court.
In the judgement on Friday, the appeal court held that the authorities did not show the president received reliable evidence to inform the decision to declare Mr Paul a prohibited immigrant.
The court noted that the Immigration Act had been amended to reflect that “the information from any source deemed by the president to be reliable has changed to information received from a reliable source.”
The president must then show in fact the information he had received upon which he acted against Mr Paul was in truth from a reliable source.
The court also noted that the action against Mr Paul would discourage rather than facilitate the inter-country movement of people and skills, which are crucial as the Botswana “is on track to advance further, so as to achieve knowledge-based economy when, as surely will come to pass, diamonds are no more.”
In result, the appeal court declared, “this appeal is dismissed.”
Reacting to the judgment, Washington-based international human rights lawyer Emmanuel Ogebe, stated that: “It is an excellent judgment and a delight to read. The judge was highly learned, resilient and well informed.
“From the points he made about Botswana aiming to be an investor-friendly and knowledge-based economy and that that should be taken into account in the interpretation of the amendments to the immigration laws, it is clear the court was interested in substantive justice that moves the nation forward and not just technicalities. This is superb and should be a lesson to Africa.”