Gov’t ordered to pay Kenyan national for cost incurred as PI
The Kenyan national was PI’ed by the President in February this year Man launches case to challenge the PI status President later revokes PI status
High Court Judge Omphemetse Motumise has ordered government to pay the cost of a lawsuit to a Kenyan national who was once declared a prohibited immigrant ( PI) or persona non grata. On the 26th of February 2021, President Mokgweetsi Masisi declared John Chombah, Oscar Chombah, and Grace Chombah all of them
Kenyan nationals, undesirable inhabitants of, or visitors to Botswana ( prohibited immigrants) in terms of Section 41 ( 1) ( c) of the Immigration Act.
The Applicants were then taken into custody as they awaited their deportation to Kenya. The 2nd and 3rd Applicants Oscar and Grace were deported on or about the 9th of March 2021 while the 1st Applicant John continued to be held in custody. “On 11th of March 2021, the 1st Applicant ( John Chombah) brought this application under two parts. In part A, which was founded on urgency, the Applicant sought an order interdicting or restraining the 1st Respondent ( Permanent Secretary, Ministry of Nationality, Immigration and Gender Affairs) from removing or deporting him from Botswana pending the final determination of proceedings to review and set aside the decision declaring the Applicants prohibited immigrants. The review application was filed simultaneously with the urgent application under part B,” Justice Motumise said. As part of the relief under the urgent application, the 1st Applicant also prayed for an order to release him from custody; permitting the 2nd and 3rd Applicants to return to Botswana and to remain in the country pending the outcome of the review application. According to the background, Oscar Chombah is a Kenyan national who had been resident in Botswana since 1995 until his deportation. In 1996, his son, John Chombah joined him in Botswana, followed by his wife Grace Chombah in 1997.
“The 1st Applicant grew up, studied, and subsequently married a Motswana wife- 2nd Respondent- Boa Chombah with whom he had two minor children, the 4th Applicant Ariellle Chombah and the 5th Applicant Jonelle Chombah. “The 3rd Respondent Mosadinyana Ntebele is the mother to the 2nd Respondent, and as such, the 1st Applicant’s mother in law,” said the judge adding that the marriage between John and Boa was dissolved on the 22nd February 2021 followed shortly by John being declared a prohibited immigrant on the 26th February 2021. “The 1st Applicant suspects, from the various interactions that he had had with the immigration officials, Interpol, and other officials that his prohibited immigrant status was declared at the instance of the 2nd and 3rd Respondents. “The suspicion was however, not established in evidence. That is so because the matter was not heard on the merits. It is important to note that the 1st Applicant is a fully qualified Chartered Accountant holding a Masters Degree in Business Administration. “He avers that he had abandoned his domicile of origin in Kenya to settle in Botswana as his domicile of choice - a place where he has taken up permanent residence and established a family. He has also forsaken any interest to settle and work in Canada or the United States of America, where he has studied and worked, and chosen Botswana instead. “His intention is to apply for Botswana citizenship. He avers further that he has lived and worked in Botswana successfully and without incident or any brush with the law. He avers that he is not a critic of the government of Botswana,” Justice Motumise said. He said the application was solely and wholly precipitated by the declaration of John as a prohibited immigrant by the president. According to Justice Motumise, the 1st Applicant thereby incurred expenses and was put out of pocket in challenging the declaration. “The matter was opposed and answering affidavits filed in which the relief sought was disputed. This compelled the 1st Applicant to persist with the application to vindicate his rights.
“Before the matter could be heard, the 1st Respondent ( Permanent Secretary in the Ministry of Nationality, Immigration and Gender Affairs) made several concessions. The first was to consent to an order not to deport the 1st Applicant pending the final outcome of the matter.
“The 1st Applicant achieved further success when the 1st Respondent again agreed to release home from custody and to restore his passport to him, to assist him with his permits and to allow him to remain in the country. “The concession and the conduct of the 1st Respondent also meant the urgency of the application was also substantially conceded, albeit indirectly and in a piecemeal fashion,” Justice Motumise said, adding that the final concession came with John’s prohibited immigrant status being lifted or revoked.
In essence, just as the lodgement of the application was precipitated by the declaration of the 1st Applicant as a prohibited immigrant, the withdrawal of the application was by the same token necessitated by the revocation of the declaration, explained the judge. The judge stated that the 1st Respondent filed a notice of opposition and an answering affidavit by the Director in the Department of Immigration and Citizenship Caroline Davids Okello- Wengi; and a confirmatory affidavit of Dr. Temba Mmusi, Permanent Secretary in the Ministry. The 1st Respondent was sued in his representative capacity on behalf of the Office of the President, the Ministry of Nationality, Immigration and Gender Affairs, and the Department of Immigration. The 2nd ( Director at Department of Immigration and Citizenship) and 3rd Respondents ( Attorney General) delivered a notice of opposition and raised points in limine, the crux of which was that they had been wrongly joined since no relief was sought against them”.
Justice Motumise said their case was that they had not been shown to have caused the president to make the declaration being challenged.